State v. Chase ( 2014 )

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STATE OF CONNECTICUT v. RODNEY CHASE
(AC 36124)
(AC 36125)
Lavine, Alvord and Bishop, Js.
Argued September 17—officially released December 23, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Prescott, J.)
Howard I. Gemeiner, for the appellant in AC 36124
and the appellee in AC 36125 (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Catherine Brannelly Austin, senior assistant
state’s attorney, for the appellee in AC 36124 and the
appellant in AC 36125 (state).
Opinion
BISHOP, J. This appeal and cross appeal arise from
the same underlying criminal action. Although they
have not been consolidated, we write one opinion for
purposes of judicial economy in which we assess the
claims made in both appeals.
In AC 36124, the defendant, Rodney Chase, appeals
from the judgment of conviction, rendered following a
jury trial, of one count of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (2)
and one count of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2). The defendant claims
that (1) his due process rights were violated as a result
of improper remarks made by the prosecutor during
closing argument, and (2) there was insufficient evi-
dence to convict him of sexual assault in the first degree.
We disagree and, accordingly, affirm the judgment of
the trial court as to the defendant’s convictions for
sexual assault in the first degree and risk of injury to
a child.
In AC 36125, the state appeals from the trial court’s
vacatur of the jury’s guilty verdicts on two counts of
sexual assault in the fourth degree in violation of Gen-
eral Statutes § 53a-73a (a) (1) (A). The state claims that
the court abused its discretion by its order of vacatur
on the basis of the state’s assertion that the court’s
instructional errors were harmless. We agree and,
accordingly, reverse the judgment of the trial court in
regard to those two counts.
The matter was tried over the course of three days
in June, 2013, during which the jury reasonably could
have found the following facts. Between November,
2011, and March, 2012, the defendant was a houseguest
in the home of M.R. and his wife, R.N. M.R. and R.N.’s
daughter, Z, the victim, and their three year old son, M
Jr., also lived in the home.1 One evening after Christmas,
2011, the defendant was lying on a couch in the liv-
ingroom, clothed and covered with a sheet. Z and M
Jr. were lying on a nearby loveseat watching television.
The defendant asked the two children to join him on
the larger couch. Z lay down alongside the defendant
under the blanket, while M Jr. curled up at the foot of
the couch. As Z lay next to the defendant, he began
rubbing Z’s buttocks and private parts over her clothing
with his hand. He then pulled down Z’s pajama pants
and underwear, and inserted one of his fingers into Z’s
vagina. Z left the couch and fled to the bathroom.
The defendant moved out of Z’s home in March, 2012.
Approximately three weeks later, Z disclosed to her
parents what had happened with the defendant, and
Z’s parents contacted the police. The defendant was
arrested and charged, by way of an amended informa-
tion, with sexual assault in the first degree in violation
of § 53a-70 (a) (2), two counts of sexual assault in the
fourth degree in violation of § 53a-73a (a) (1) (A), and
risk of injury to a child in violation of § 53-21 (a) (2). At
the conclusion of the trial, the jury found the defendant
guilty on all counts. Before the court imposed the defen-
dant’s sentence, it vacated the jury’s verdicts on the
two charges of sexual assault in the fourth degree, due
to an error in the jury instructions related to those
charges. As to the remaining convictions for sexual
assault in the first degree and risk of injury to a child,
the court sentenced the defendant to a total effective
term of ten years incarceration and ten years special
parole. This appeal and cross appeal followed.
I
AC 36124
As noted, the defendant raises two claims on appeal
with respect to his convictions for sexual assault in the
first degree and risk of injury to a child. First, he claims
that his due process rights were violated as a result
of improper remarks made by the prosecutor during
closing argument. Second, the defendant argues that
there was insufficient evidence to convict him of sexual
assault in the first degree. We consider each claim in
turn.
A
Prosecutorial Impropriety
We first turn to the defendant’s claim that his due
process rights were violated as a result of improper
remarks made by the prosecutor during closing argu-
ment. Specifically, he argues that the prosecutor inap-
propriately appealed to the emotions of the jurors and
improperly vouched for Z’s credibility as a witness.
We begin by setting forth the legal principles and
standard of review that guide our analysis. The standard
of review governing claims of prosecutorial impropriety
is well established. ‘‘In analyzing claims of prosecutorial
impropriety, we engage in a two step analytical process.
. . . The two steps are separate and distinct. . . . We
first examine whether prosecutorial impropriety
occurred. . . . Second, if an impropriety exists, we
then examine whether it deprived the defendant of his
due process right to a fair trial. . . . In other words, an
impropriety is an impropriety, regardless of its ultimate
effect on the fairness of the trial. Whether that impropri-
ety was harmful and thus caused or contributed to a
due process violation involves a separate and distinct
inquiry.’’ (Citations omitted.) State v. Fauci, 282 Conn.
23, 32, 917 A.2d 978 (2007). ‘‘An appellate court’s deter-
mination of whether any improper conduct by the pros-
ecutor violated the defendant’s right to a fair trial is
predicated on the factors established in State v. Wil-
liams, 204 Conn. 523, 540, 529 A.2d 653 (1987). Those
factors include the extent to which the [impropriety]
was invited by defense conduct or argument . . . the
severity of the [impropriety] . . . the frequency of the
[impropriety] . . . the centrality of the [impropriety]
to the critical issues in the case . . . the strength of
the curative measures adopted . . . and the strength
of the state’s case.’’ (Internal quotation marks omitted.)
State v. Lynch, 123 Conn. App. 479, 503, 1 A.3d 1254(2010). ‘‘[If] a defendant raises on appeal a claim that
improper remarks by the prosecutor deprived the defen-
dant of his constitutional right to a fair trial, the burden
is on the defendant to show . . . that the remarks were
improper . . . .’’ (Internal quotation marks omitted.)
State v. Taft, 306 Conn. 749, 762, 51 A.3d 988 (2012).
Because the claimed prosecutorial improprieties
occurred during closing arguments, we advance the
following legal principles. ‘‘[P]rosecutorial [impropri-
ety] of a constitutional magnitude can occur in the
course of closing arguments. . . . In determining
whether such [an impropriety] has occurred, the
reviewing court must give due deference to the fact
that [c]ounsel must be allowed a generous latitude in
argument, as the limits of legitimate argument and fair
comment cannot be determined precisely by rule and
line, and something must be allowed for the zeal of
counsel in the heat of argument. . . . Thus, as the
state’s advocate, a prosecutor may argue the state’s
case forcefully, [provided the argument is] fair and
based upon the facts in evidence and the reasonable
inferences to be drawn therefrom.’’ (Internal quotation
marks omitted.) State v. Miller, 128 Conn. App. 528,
535, 16 A.3d 1272, cert. denied, 301 Conn. 924, 22 A.3d
1279 (2011).
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great
influence [on] jurors. His conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he represents the
public interest, which demands no victim and asks [for]
no conviction through the aid of passion, prejudice, or
resentment. If the accused [is] guilty, he should [none-
theless] be convicted only after a fair trial, conducted
strictly according to the sound and well-established
rules which the laws prescribe. [Although] the privilege
of counsel in addressing the jury should not be too
closely narrowed or unduly hampered, it must never
be used as a license to state, or to comment [on], or
to suggest an inference from, facts not in evidence, or
to present matters which the jury ha[s] no right to
consider.’’ (Internal quotation marks omitted.) State v.
Maguire, 310 Conn. 535, 553–54, 78 A.3d 828 (2013).
Finally, although the defendant failed to object at
trial to the remarks that form the basis of his appeal,
our Supreme Court has explained that a ‘‘defendant’s
failure to object at trial to each of the occurrences that
he now raises as instances of prosecutorial impropriety,
though relevant to our inquiry, is not fatal to review of
his claims. . . . This does not mean, however, that the
absence of an objection at trial does not play a signifi-
cant role in the determination of whether the challenged
statements were, in fact, improper. . . . To the con-
trary, we continue to adhere to the well established
maxim that defense counsel’s failure to object to the
prosecutor’s argument when it was made suggests that
defense counsel did not believe that it was [improper]
in light of the record of the case at the time.’’ (Internal
quotation marks omitted.) State v. Medrano, 308 Conn.
604, 612–13, 65 A.3d 503 (2013). With this maxim in
mind, we proceed with our review of the defendant’s
claims.
1
The defendant first claims that the prosecutor made a
number of improper comments during closing argument
geared to appeal to the jurors’ emotions. Specifically,
the defendant argues that it was improper for the prose-
cutor to comment on the hardships that Z endured in
reporting the incident and then testifying about it in
court. In response, the state contends that the com-
ments in question were not an appeal to the jurors’
emotions, but simply an effort to focus the jury’s atten-
tion on the facts in evidence and the commonsense
inferences that could be drawn from such facts.
‘‘[I]t is well established that, [a] prosecutor may not
appeal to the emotions, passions and prejudices of the
jurors. . . . [S]uch appeals should be avoided because
they have the effect of diverting the jury’s attention
from their duty to decide the case on the evidence. . . .
When the prosecutor appeals to emotions, he invites
the jury to decide the case, not according to a rational
appraisal of the evidence, but on the basis of powerful
and irrelevant factors which are likely to skew that
appraisal.’’ (Citation omitted; internal quotation marks
omitted.) State v. Crump, 145 Conn. App. 749, 755, 75
A.3d 758, cert. denied, 310 Conn. 947, 80 A.3d 906 (2013).
Our Supreme Court has held, however, that ‘‘[i]t is not
improper for the prosecutor to comment [on] the evi-
dence presented at trial and to argue the inferences
that the jurors might draw therefrom . . . . We must
give the jury the credit of being able to differentiate
between argument on the evidence and attempts to
persuade them to draw inferences in the state’s favor,
on one hand, and improper unsworn testimony, with
the suggestion of secret knowledge, on the other hand.’’
(Internal quotation marks omitted.) State v. Fauci,
supra, 282 Conn. 36. Therefore, ‘‘[a] prosecutor is not
expressing his personal opinion when he or she states
factual evidence and reasonable inferences tending to
support a finding that the defendant is guilty.’’ State v.
James, 141 Conn. App. 124, 143, 60 A.3d 1011, cert.
denied, 308 Conn. 932, 64 A.3d 331 (2013).
The first statement at issue occurred in the middle of
the prosecutor’s closing argument, when the prosecutor
commented on the amount of times Z was interviewed
by noting that Z was interviewed only once ‘‘to save
the child the trauma of having to repeat again and
again.’’ The defendant argues that this statement was
an improper appeal to the emotions of the jurors.
The state responds that the prosecutor’s statement
was not an impermissible appeal to the jurors’ emo-
tions, but rather a response to the evidence put forth
by the defendant. ‘‘When reviewing a claim of prosecu-
torial impropriety, we do not scrutinize each individual
comment in a vacuum but, rather, review the comments
complained of in the context of the entire trial.’’ (Inter-
nal quotation marks omitted.) State v. Fauci, supra,282 Conn. 45. During the defendant’s presentation of
evidence, Suzanne Sgroi testified as an expert witness
with a background in interviewing victims of sexual
abuse. In her testimony, Sgroi repeatedly criticized how
Z had been interviewed, specifically commenting on the
fact that Z was interviewed only one time following
the incident. In her closing argument, the prosecutor
referred to Sgroi’s testimony and explained that Z was
interviewed only once in order to save Z the trauma of
having to retell her story multiple times. The record of
the trial supports the state’s claim that the prosecutor’s
statement was meant to explain why Z was interviewed
only once, and not to appeal to the jurors’ emotions as
claimed by the defendant.
Next, the defendant claims that toward the end of
the prosecutor’s closing argument, she improperly
addressed the difficulty that Z faced when disclosing
the incident, stating: ‘‘And when she comes into the
courtroom to testify in front of you, she says her first
thing is I’m not really comfortable talking about this.’’
The defendant argues that this statement was an
improper appeal to the jurors’ emotions made in an
effort to provoke the jury’s ire against the defendant.
In assessing whether the prosecutor’s statement in
question can properly be characterized as an impropri-
ety, we bear in mind that, as an advocate, ‘‘the prosecu-
tor permissibly may employ forceful arguments based
upon the facts in evidence and the reasonable infer-
ences drawn from such facts.’’ (Internal quotation
marks omitted.) State v. Kendall, 123 Conn. App. 625,
637, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d
521 (2010). Here, there was sufficient evidence pre-
sented from which the jury could draw a reasonable
inference that it was difficult for Z to talk about the
incident. During the course of her forensic interview
and her in-court testimony, Z stated several times that
she did not feel comfortable explaining where on her
body the defendant had touched her. Accordingly, the
prosecutor’s statement about Z being uncomfortable in
the courtroom had an evidentiary foundation and was,
therefore, within the bounds of reasonable advocacy.
The third set of statements made by the prosecutor
assailed by the defendant relate to the prosecutor’s
discussion of the hardships that Z endured after the
incident. The prosecutor stated: ‘‘Well, here she is tell-
ing what happened to her and [the defendant]. So she’s
had to go talk to Donna Meyer, she’s had to come
into court to testify, and she’s had to go through an
examination by Dr. Fountas. An OB-GYN examination.
Is enough said on that topic? How pleasant are those
types of exams? Not only has she had to undergo that
exam by Dr. Fountas, but that part of Z’s body was
a crime scene.’’ As with the previous statements, the
defendant argues that these statements constituted an
effort by the prosecutor to elicit sympathy for Z from
the jurors.
This court has deemed proper similar comments
regarding gynecological examinations ‘‘in which a pros-
ecutor asked jurors to use their common sense to infer
that an individual’s complaint was more credible
because it required her to undergo an uncomfortable
medical examination . . . .’’ State v. Crump, supra, 145
Conn. App. 758. As we have previously established, ‘‘[i]t
is not improper for the prosecutor to comment upon
the evidence presented at trial and to argue the infer-
ences that the jurors might draw therefrom . . . .’’
(Internal quotation marks omitted.) Id., 760 n.4. Here,
the prosecutor’s statement could reasonably be under-
stood as an effort to ask the jurors to apply common
sense in assessing whether Z likely would fabricate
the allegations.
The final set of statements made by the prosecutor
that the defendant claims were intended to inflame the
passions of the jurors were as follows: ‘‘A crime scene.
. . . Ladies and gentlemen, not only did her body
become a crime scene, but she had to come into court
and talk to all of you, and I want you to think about
this for a minute. You having to come into court and
testifying in front of eight jurors, two of which are men,
a male judge, a clerk, a stenographer, a marshal, the
defendant, the defense attorney, spectators in the gal-
lery, the inspector, me, about a sexual incident? How
would you feel if you had to come in and testify about
that? . . . So how do you think Z felt at eight years
old to have to come in and talk about this very personal
event in her life?’’
Guidance from decisional law does not support the
defendant’s argument in this regard. Our Supreme Court
previously has deemed proper ‘‘comments in which a
prosecutor asked jurors to use their common sense
to infer that [a victim’s] complaint was more credible
because it required her to undergo . . . embarrassing
conversations with both her family members and com-
plete strangers . . . .’’ State v. Long, 293 Conn. 31, 48,
975 A.2d 660 (2009). In State v. Crump, supra, 145 Conn.
App. 759, the prosecutor had asked the following rhetor-
ical question: ‘‘How hard was that for [the victim] to
tell? How hard was any of this for her to tell you?’’
(Internal quotation marks omitted.) This court held that
these statements were not an improper appeal to the
jurors’ emotions because ‘‘[t]he prosecutor was seeking
to reference the crime’s impact on the victim as it
related to her failure to make a prompt disclosure of
the incidents . . . .’’ Id. Further, this court opined that
‘‘there was ample evidence presented from which the
jury could draw a reasonable inference that it was diffi-
cult for the victim to talk about the incidents and that
she wanted to leave the courtroom.’’ Id. In the present
case, as in Crump, the prosecutor was not appealing
to the jurors’ emotions or sympathies. Rather, the prose-
cutor was asking the jurors to make a common sense
inference that Z would not have spoken to her parents
about the incident or testified about it in court if it
had not actually happened. The prosecutor’s statements
were not improper.
In sum, the prosecutor’s statements during her clos-
ing argument did not constitute impermissible appeals
to the jurors’ emotions.
2
Next, the defendant claims that, during closing argu-
ment, the prosecutor improperly vouched for Z’s verac-
ity. More specifically, the defendant claims that the
prosecutor violated the defendant’s constitutional right
to cross-examine his accuser by testifying to Z’s credi-
bility in the guise of closing argument. In response, the
state argues that the prosecutor’s statements were only
an appeal to the jurors’ common sense and that their
propriety can be seen in the light of the evidence
adduced at trial. The state contends that, in making
the statements in question, the prosecutor was simply
asking that the jurors find Z’s testimony more credible
on the basis of the difficulty she had in reporting the
incident and then testifying about it in court.
The following additional facts are relevant to our
resolution of the defendant’s claim. In her closing argu-
ment, the prosecutor argued to the jury that Z’s testi-
mony had been consistent throughout her
conversations with her parents, her forensic interview,
and her testimony in court. Specifically, the prosecutor
stated: ‘‘Z, I would argue, is consistent in her testimony
on Tuesday in front of you, it is consistent with the
testimony that she already—interview that she gave to
Donna Meyers, is consistent with the information that
she gave her mother and her father, and the reason
why she is, is because she is being truthful with you.’’
Further, the prosecutor stated: ‘‘[Z] told you truthfully
what happened with [the defendant] . . . .’’
‘‘[The Supreme Court] consistently [has] held that it
is improper for a prosecuting attorney to express his
or her own opinion, directly or indirectly, as to the
credibility of witnesses. . . . Such expressions of per-
sonal opinion are a form of unsworn and unchecked
testimony, and are particularly difficult for the jury to
ignore because of the prosecutor’s special position.
. . . Put another way, the prosecutor’s opinion carries
with it the imprimatur of the [state] and may induce
the jury to trust the [state’s] judgment rather than its
own view of the evidence. . . . Moreover, because the
jury is aware that the prosecutor has prepared and
presented the case and consequently, may have access
to matters not in evidence . . . it is likely to infer that
such matters precipitated the personal opinions.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Long, supra, 293 Conn. 38.
At the same time, ‘‘[t]he prosecutor . . . is not
barred from commenting on the evidence presented at
trial or urging the jury to draw reasonable inferences
from the evidence that support the state’s theory of the
case, including the defendant’s guilt. It is not improper
for the prosecutor to comment [on] the evidence pre-
sented at trial and to argue the inferences that the [jury]
might draw therefrom . . . . We must give the jury the
credit of being able to differentiate between argument
on the evidence and attempts to persuade [it] to draw
inferences in the state’s favor, on one hand, and
improper unsworn testimony, with the suggestion of
secret knowledge, on the other hand. The [prosecutor]
should not be put in the rhetorical straitjacket of always
using the passive voice, or continually emphasizing that
he is simply saying I submit to you that this is what
the evidence shows, or the like.’’ (Internal quotation
marks omitted.) Id., 38–39.
Based on our review of the record, we conclude that
the defendant’s claim raises a close question of whether
the prosecutor’s statements regarding Z’s credibility
crossed the line into vouching for her truthfulness. Even
assuming, without deciding, however, that these state-
ments run afoul of the proscription against vouching
for a witness’ credibility, we conclude that they did not
deprive the defendant of a fair trial.
‘‘[T]he touchstone of due process analysis in cases
of alleged prosecutorial [impropriety] is the fairness of
the trial, and not the culpability of the prosecutor. . . .
The issue is whether the prosecutor’s conduct so
infected the trial with unfairness as to make the
resulting conviction a denial of due process.’’ (Internal
quotation marks omitted.) State v. Schiavo, 93 Conn.
App. 290, 307, 888 A.2d 1115, cert. denied, 277 Conn. 923,
895 A.2d 797 (2006). As noted, ‘‘[a]n appellate court’s
determination of whether any improper conduct by the
prosecutor violated the defendant’s right to a fair trial
is predicated on the factors established in State v. Wil-
liams, [supra, 204 Conn. 540].’’ (Internal quotation
marks omitted.) State v. Jordan, 132 Conn. App. 817,
838, 33 A.3d 307, cert. denied, 304 Conn. 909, 39 A.3d
1119 (2012).
In the present case, pursuant to our analysis of the
Williams factors, we are not persuaded that the
remarks made by the prosecutor regarding Z’s veracity
as a witness deprived the defendant of his due process
right to a fair trial. Under the first Williams factor, the
state argues, and we agree, that the defendant placed
Z’s credibility in question when he presented Sgroi’s
testimony regarding the forensic interview. According
to the state, this testimony called into question the
truthfulness of Z’s statements to her parents, her state-
ments to Meyer during the forensic interview, and her
testimony at trial. We agree that the prosecutor’s
remarks were invited by testimony elicited by the
defense regarding Z’s prior statements. With respect to
the second and third Williams factors, the state con-
tends that the alleged impropriety occurred only twice
during the prosecutor’s closing argument and was not
a theme throughout the trial or even throughout the
closing argument. See State v. Johnson, 107 Conn. App.
188, 203, 944 A.2d 416 (impropriety not severe under
the second Williams factor when confined to limited
portion of closing argument), cert. denied, 288 Conn.
905, 953 A.2d 650 (2008). The record supports the state’s
claim in this regard. Furthermore, we note that the
defendant did not object to the prosecutor’s comments
during closing argument. Although the absence of an
objection is not determinative, ‘‘[w]e consider it highly
significant that defense counsel failed to object to any
of the improper remarks, request curative instructions,
or move for a mistrial. Defense counsel, therefore, pre-
sumably [did] not view the alleged impropriety as preju-
dicial enough to seriously jeopardize the defendant’s
right to a fair trial. . . . Given the defendant’s failure
to object, only instances of grossly egregious [impropri-
ety] will be severe enough to mandate reversal.’’ (Inter-
nal quotation marks omitted.) State v. Bermudez, 274
Conn. 581, 600–601, 876 A.2d 1162 (2005).
As to the fourth and fifth Williams factors, the state
claims that although the statements at issue did touch
upon a central issue in the case, namely Z’s credibility,
the court’s instructions on witness credibility cured any
possible harm to the defendant’s right to a fair trial.
We agree that the statements at issue touched upon a
central issue in the case, as the state’s entire case
against the defendant relied on Z’s credibility. The court
did, however, provide the standard instruction to the
jury regarding the role of counsel’s arguments and the
relationship between evidence and argument.2 These
instructions were proper and given without objection
or any request for augmentation. See State v. Crump,
supra, 145 Conn. App. 764 (‘‘[w]hile the state’s case
relied on the credibility of a sole witness, the jury prop-
erly was instructed that the statements and argument
of counsel are not evidence and that it should not resort
to sympathy in deciding the case’’)
Finally, with regard to the sixth Williams factor, the
state argues that its case was strong enough so that
any alleged impropriety did not deprive the defendant
of a fair trial. Our Supreme Court has noted that ‘‘a child
sexual abuse case lacking conclusive physical evidence,
when the prosecution’s case rests on the credibility of
the victim . . . is not particularly strong . . . .’’ (Inter-
nal quotation marks omitted.) State v. Warholic, 278
Conn. 354, 397, 897 A.2d 569 (2006). At the same time,
‘‘[t]he state’s evidence does not need to be overwhelm-
ing to support a conclusion that prosecutorial impropri-
ety did not deprive the defendant of a fair trial.’’ State
v. Felix, 111 Conn. App. 801, 816, 961 A.2d 458 (2008).
Therefore, although we agree with the defendant that
the state’s case was not particularly strong, the defen-
dant was not deprived of the right to a fair trial under
the circumstances evidenced by this record.
Based on the foregoing, we conclude that the prose-
cutor’s statements during her closing argument regard-
ing Z’s credibility, even if improper, did not deprive the
defendant of his right to a fair trial.
B
Insufficient Evidence
Next, the defendant claims that the court improperly
convicted him of sexual assault in the first degree
because the evidence was insufficient to prove the nec-
essary element of sexual intercourse. Specifically, the
defendant contends that the state failed to present any
evidence of penetration from which the jury could con-
clude that he engaged in sexual intercourse with Z.
We begin by setting forth the legal principles and
standard of review that guide our analysis. ‘‘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 upon the
facts so construed and the inferences reasonably drawn
therefrom the [finder of fact] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . 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 [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Davis, 283 Conn. 280, 329–30, 929 A.2d 278 (2007).
Section 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 . . . .’’ The defendant claims that the
state failed to prove beyond a reasonable doubt that
the defendant engaged in sexual intercourse with Z.
General Statutes § 53a–65 (2) defines ‘‘sexual inter-
course’’ in relevant part as ‘‘vaginal intercourse . . .
between persons regardless of sex. . . . Penetration,
however slight, is sufficient to complete vaginal inter-
course . . . and does not require emission of semen.
Penetration may be committed by an object manipu-
lated by the actor into the genital . . . opening of the
victim’s body.’’ ‘‘Connecticut follows the common-law
least penetration doctrine in that the phrase [p]enetra-
tion, however slight . . . was intended to cover pene-
tration of the labia majora.’’ (Internal quotation marks
omitted.) State v. Juan V., 109 Conn. App. 431, 449,
951 A.2d 651, cert. denied, 289 Conn. 931, 958 A.2d
161 (2008).
The evidence, when construed in the light most favor-
able to sustaining the jury’s verdict, is sufficient to sus-
tain the defendant’s conviction of sexual assault in the
first degree. First, the transcript of Z’s forensic inter-
view with Meyer was admitted into evidence at trial.
During this interview, Z explained that the defendant
had used his fingers and touched ‘‘the inside’’ of the
part of her anatomy that she refers to as the ‘‘red thing.’’
When Meyer asked Z to clarify what she meant by the
‘‘red thing,’’ Z explained that ‘‘it doesn’t come out your
butt, it comes out this part.’’ Next, the court admitted
the videotape of the forensic interview between Z and
Meyer. In this video, Meyer shows Z an anatomically
correct doll and asks Z to point to where on the doll
the ‘‘red thing’’ is. In response to this question, Z takes
the doll and points to the inside of the doll’s vagina,
stating ‘‘it’s inside and it’s red.’’ She further explains
that the defendant was ‘‘pushing [that part] up.’’
In addition to the evidence of the forensic interview,
the prosecution questioned Z on direct examination
regarding the defendant’s criminal acts. In response to
questions from the prosecutor, Z described the defen-
dant’s penetration of her genitalia in the following
manner:
‘‘Q. What did [the defendant] do when he pulled down
your bottoms?
‘‘A. He touched me.
‘‘Q. What did he touch you with?
‘‘A. His hand.
‘‘Q. And what part of your body did he touch?
‘‘A. The front.
‘‘Q. Was—did he touch the inside, the outside, or
something else of the front of you?
‘‘A. The inside.
‘‘Q. What do you call that part?
‘‘A. I don’t feel comfortable saying it.
‘‘Q. It’s safe to say it in this room.
‘‘A. A pee pee, I guess.
‘‘Q. And how—where did [the defendant] put his hand
when he touched your pee pee?
‘‘A. I don’t understand.
‘‘Q. Did he put his hand inside or outside or something
else of your pee pee?
‘‘A. Inside.’’
In addition, the prosecutor showed Z a doll and asked
her to demonstrate where the defendant had put his
hand. Z showed the vaginal area of the doll and
explained that the defendant ‘‘put his finger in there
and went like that and pushed it up.’’ The prosecutor
asked for the record to reflect that Z had taken her
index finger and placed it into the doll’s vagina.
As a result of the evidence presented at trial, the
jury reasonably could have determined that penetration
occurred, and that, therefore, the defendant engaged
in sexual intercourse with Z. Consequently, we con-
clude that the court properly convicted the defendant
of sexual assault in the first degree.
II
AC 36125
We next address the claim that the state raises in its
cross appeal. The state argues that the trial court abused
its discretion in vacating the jury’s verdicts on the
charges of sexual assault in the fourth degree because
the court’s instructional errors were harmless. Specifi-
cally, the state contends that there is no reasonable
possibility that the jury was confused or misled by the
court’s misstatements and omissions in its jury instruc-
tions because, on the subject areas implicated by the
one mistake and one omission in the court’s instructions
on both counts, there was uncontested and overwhelm-
ing evidence. The defendant argues, in response, that
whether to set aside a jury verdict is within the court’s
discretion, which, on review, we should not disturb.3
We agree with the state.
The following additional facts are relevant to our
disposition of this claim. During trial, there was undis-
puted evidence that when the defendant’s criminal acts
occurred, the victim was eight years old and the defen-
dant was twenty-nine years old.
On June 19, 2013, the court provided both parties
with a draft copy of the jury instructions. The following
day, after the parties had the opportunity to review the
proposed instructions, the court asked if they had any
objections or comments. Both parties replied that they
did not. Later that day, following the parties’ closing
arguments, the court instructed the jury as to the essen-
tial elements of the charged crimes. As to count one,
which alleged sexual assault in the first degree, the
court instructed: ‘‘The defendant is charged in count
one of the information with sexual assault in the first
degree. The statute defining this offense reads in rele-
vant part as follows, quote, a person is guilty of sexual
assault in the first degree when such person 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,
end quote. . . . The second element that the state must
prove beyond a reasonable doubt is that Z was under
thirteen years of age at the time of the sexual inter-
course. The third element the state must prove beyond
a reasonable doubt is that the defendant is more than
two years older than Z. In summary, the state must
prove beyond a reasonable doubt that one, sexual inter-
course took place between the defendant and Z, and
two, that at the time of the sexual intercourse, Z had
not yet reached the age of thirteen, and three, the defen-
dant was more than two years older than Z.’’ (Empha-
sis added.)
As to counts two and three, which both alleged sexual
assault in the fourth degree, the court instructed: ‘‘The
defendant is charged in count two of the information
with the crime of sexual assault in the fourth degree
in violation of [§] 53a-73a (a) (1) (A) of the penal code,
which provides in relevant part, quote, a person is guilty
of sexual assault in the fourth degree when such person
intentionally subjects another person to sexual contact
and such other person is under fifteen years of age,
end quote. . . . The third element that the state must
prove beyond a reasonable doubt is that at the time of
the offense, Z was under fifteen years of age. In sum-
mary, the state must prove beyond a reasonable doubt
that one, the defendant intentionally subjected Z to
sexual contact by touching her genital area, two, he
specifically intended to obtain sexual gratification by
doing so, and three, Z was under fifteen years of age
at that time. . . . The defendant is charged in count
three of the information with the crime of sexual assault
in the fourth degree in violation of [§] 53a-73a (a) (1) (A)
. . . which provides in relevant part, quote, a person is
guilty of sexual assault in the fourth degree when such
person intentionally subjects another person to sexual
contact, and such other person is under fifteen years
of age, end quote. . . . In summary, the state must
prove beyond a reasonable doubt that one, the defen-
dant intentionally subjected Z to sexual contact by
touching her buttocks, two, he specifically attempted
to obtain sexual gratification by doing so, and three, Z
was under fifteen years of age at the time.’’4 (Empha-
sis added.)
On June 21, 2013, the jury found the defendant guilty
on all counts charged. Following the verdict, the court
submitted a special interrogatory to the jury regarding
the first and fourth counts. As to count one, sexual
assault in the first degree, the interrogatory asked
‘‘whether or not the state has proven to you all unani-
mously beyond a reasonable doubt that Z was less than
ten years old at the time [the defendant] committed the
offense alleged in count one.’’ As to count four, risk of
injury to a child, the interrogatory asked whether ‘‘the
state has proven to you all unanimously beyond a rea-
sonable doubt that Z was less than thirteen years old
at the time that [the defendant] committed that offense.’’
The jury answered ‘‘yes’’ to both questions.
At the defendant’s sentencing hearing on August 28,
2013, the court explained to the parties that it had dis-
covered two errors in its jury instructions on counts
two and three charging sexual assault in the fourth
degree. First, the court stated it had ‘‘improperly
instructed the jury as to the age of the victim that they
would have to find in order to convict [the defendant]
of those counts.’’ Specifically, the court had ‘‘indicated
to [the] jury . . . to convict [the defendant] of sexual
assault in the fourth degree when such person intention-
ally subjects another person to sexual contact and such
other person is under fifteen years of age.’’ Second, the
court had failed to ‘‘instruct the jury that they must find
that [the defendant] was more than two years older
than [Z] at the time of the alleged offense.’’ Pursuant
to § 53a-73a (a) (1) (A), a defendant commits sexual
assault in the fourth degree when he or she ‘‘subjects
another person to sexual contact who is . . . under
thirteen years of age and the actor is more than two
years older than such other person . . . .’’ The court
reasoned that it could either vacate the convictions on
counts two and three or conclude that the improper
instructions were harmless error and let the convictions
stand. In sum, the court misstated the statutory age set
forth in § 53a-73a regarding a potential victim, and the
court neglected to state the statutory requirement that,
for one to be guilty of the statute’s proscriptions, a
perpetrator must be more than two years older than
the victim.
After hearing arguments from both parties, the court
vacated the convictions on counts two and three. The
court reasoned that, because no judgment of conviction
had been rendered, it wanted to ‘‘craft a sentence on
the remaining charges that reflect[ed] the fact that the
jury was improperly instructed on the essential ele-
ments of two of the counts.’’ On September 27, 2013,
the court granted the state permission to appeal the
vacatur of these two convictions, and the state subse-
quently filed this appeal on October 7, 2013.
On appeal, the state claims that the court’s instruc-
tional errors were patently harmless, and, therefore,
the court abused its discretion in granting the defendant
a new trial as to those counts. In response, the defen-
dant argues that the court properly exercised its discre-
tion in vacating the convictions.
‘‘[T]he proper appellate standard of review when con-
sidering the action of a trial court granting or denying
a motion to set aside a verdict and motion for a new
trial . . . [is] the abuse of discretion standard. . . .
In determining whether there has been an abuse of
discretion, every reasonable presumption should be
given in favor of the correctness of the court’s ruling.
. . . Reversal is required only where an abuse of discre-
tion is manifest or where injustice appears to have been
done. . . . We do not . . . determine whether a con-
clusion different from the one reached could have been
reached. . . . A verdict must stand if it is one that a
jury reasonably could have returned and the trial court
has accepted.’’ (Internal quotation marks omitted.)
State v. Vazquez, 119 Conn. App. 249, 252, 987 A.2d
1063 (2010).
On the other hand, the court’s broad latitude of dis-
cretion is not unbounded. An abuse of discretion stan-
dard ‘‘encompasses a determination of whether the
court applied the correct law to the facts. . . . [Thus,
our] review of such rulings is limited to the questions
of whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did.’’ (Citation omitted; internal quotation marks omit-
ted.) Monti v. Wenkert, 287 Conn. 101, 111 n.2, 947 A.2d
261 (2008). Put another way, ‘‘[t]he trial court possesses
inherent power to set aside a jury verdict which, in the
court’s opinion, is against the law or the evidence. . . .
[The trial court] should not set aside a verdict where
it is apparent that there was some evidence upon which
the jury might reasonably reach [its] conclusion, and
should not refuse to set it aside where the manifest
injustice of the verdict is so plain and palpable as clearly
to denote that some mistake was made by the jury in
the application of legal principles . . . . Ultimately,
[t]he decision to set aside a verdict entails the exercise
of a broad legal discretion . . . that, in the absence of
clear abuse, we shall not disturb.’’ (Internal quotation
marks omitted.) Id., 110–11.
When a claim of instructional error is implicated on
appeal, the law that guides our review is clear. ‘‘A defen-
dant is constitutionally entitled to have the jury
instructed on the essential elements of the crime
charged and to be acquitted unless proven guilty of
each element beyond a reasonable doubt. . . . It is well
established that a defect in a jury charge [that] raises
a constitutional question is reversible error if it is rea-
sonably possible that, considering the charge as a
whole, the jury was misled. . . . [T]he test for
determining whether a constitutional error is harmless
. . . is whether it appears beyond a reasonable doubt
that the error complained of did not contribute to the
verdict obtained. . . . [A] jury instruction that improp-
erly omits an essential element from the charge consti-
tutes harmless error if a reviewing court concludes
beyond a reasonable doubt that the omitted element
was uncontested and supported by overwhelming evi-
dence, such that the jury verdict would have been the
same absent the error . . . .’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Thompson, 305
Conn. 806, 815, 48 A.3d 640 (2012).
Our Supreme Court has held that an instructional
error ‘‘will be deemed harmless if the verdict rendered
by the jury on another count of the information neces-
sarily was predicated on factual findings that also were
required for a finding of a violation of [the statute at
issue] . . . or if the state can establish beyond a rea-
sonable doubt that, in light of the undisputed and over-
whelming evidence, the jury verdict would have been
the same in the absence of the error.’’ (Citations omit-
ted.) State v. Patterson, 276 Conn. 452, 477, 886 A.2d
777 (2005); see also State v. Davis, 255 Conn. 782, 793–
96, 772 A.2d 559 (2001) (trial court’s failure to instruct
jury regarding elements of sentence enhancement stat-
ute was harmless because first element of statute was
established in previous count and second element was
established by uncontested and overwhelming evi-
dence); State v. Montgomery, 254 Conn. 694, 735–38,
759 A.2d 995 (2000) (trial court’s failure to instruct jury
on elements of sentence enhancement statute harmless
beyond reasonable doubt).
In the present case, it is undisputed that the trial court
improperly instructed the jury on two of the essential
elements of § 53a-73a (a) (1) (A). As to the first element,
the age of the victim, the court misstated the law by
instructing the jury that in order to find the defendant
guilty of sexual assault in the fourth degree, it must
find that Z was ‘‘under fifteen years of age.’’ Pursuant
to § 53a-73a (a) (1) (A), the victim must actually be
‘‘under thirteen years of age . . . .’’ During the trial, Z
appeared in front of the jury and testified that she was
born in 2004.5 Z’s father also testified that Z was born
in 2004. None of the evidence regarding Z’s age was
contested. Therefore, the unchallenged evidence at trial
was that Z could not have been any older than eight
at the time of the incident, which occurred sometime
between November, 2011 and March, 2012. Further-
more, at the conclusion of the trial, the jury found the
defendant guilty of sexual assault in the first degree
pursuant to § 53a-70 (a), which requires a finding that
the victim was under thirteen years of age when the
assaults occurred. Finally, following the verdict, the
jury answered special interrogatories and found the
following: (1) Z was less than ten years old at the time
the defendant committed sexual assault in the first
degree; and (2) Z was less than thirteen years old at
the time the defendant committed risk of injury to a
child. Accordingly, we conclude that there was uncon-
tested and overwhelming evidence that Z was under
thirteen years of age at the time of the incident, and,
therefore, the court’s instructional error regarding her
age was patently harmless.
As to the second element, the age of the defendant,
the court’s instruction on counts two and three did not
include any reference to the age difference between
the defendant and Z at the time of the incident. Pursuant
to § 53a-73a (a) (1) (A), the defendant must be ‘‘more
than two years older than [the victim] . . . .’’ During
the trial, the defendant appeared before the jury and
testified that he was born on August 25, 1982. Further-
more, at the conclusion of the trial, the jury found the
defendant guilty of sexual assault in the first degree
pursuant to § 53a-70 (a), which requires that the defen-
dant be more than two years older than the victim.
Accordingly, we conclude that there was uncontested
and overwhelming evidence that the defendant was
more than two years older than Z at the time of the
incident, and, therefore, the court’s instructional error
regarding the defendant’s age was patently harmless.
On review, we conclude that the court’s exercise of
discretion, though broad, was bounded by the patently
harmless nature of omission and mistake in the court’s
instruction regarding the statutory parameters of sexual
assault in the fourth degree. In sum, unaccompanied
by any determination that the jury, even potentially,
could have been misled or confused by the court’s
charge in reaching its verdict, it was not within the
court’s province to take the verdict from the jury.
Accordingly, the judgment of vacatur must be reversed.
Having concluded that the trial court incorrectly set
aside the defendant’s conviction of two counts of sexual
assault in the fourth degree, we turn next to the appro-
priate remedy. In so doing, we are mindful that Connect-
icut has adopted the ‘‘aggregate package theory.’’ Under
this theory, ‘‘when a multicount conviction is remanded
after one or more of the convictions have been vacated
on appeal, the trial court may increase individual sen-
tences on the surviving counts as long as the total effec-
tive sentence is not exceeded.’’ (Emphasis added.) State
v. Wade, 297 Conn. 262, 268, 998 A.2d 1114 (2010). The
underlying principles of the aggregate package theory
were set forth in State v. Raucci, 21 Conn. App. 557,
575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546(1990). In Raucci, the court opined that ‘‘the defendant,
in appealing his conviction and punishment, has volun-
tarily called into play the validity of the entire sentenc-
ing package, and, thus, the proper remedy is to vacate
it in its entirety.’’ Id., 562. Furthermore, the court held
that ‘‘the original sentencing court is viewed as having
imposed individual sentences merely as component
parts or building blocks of a larger total punishment
for the aggregate convictions, and, thus, to invalidate
any part of that package without allowing the court
thereafter to review and revise the remaining valid con-
victions would frustrate the court’s sentencing
intent.’’ Id.The sentencing package theory articulated in Raucci
does not apply, however, to the restoration of pre-
viously vacated verdicts in a multicount prosecution.
Unlike Raucci, we are not vacating one or more convic-
tions in a multicount conviction. Thus, our action does
not disturb a mosaic crafted by the sentencing court.
Accordingly, the principles that underlie the aggregate
package theory when a conviction is vacated are inapt.
We are mindful that, on remand, the trial court may
sentence the defendant concurrently or consecutively,
within its discretion, thus leaving the present sentences
essentially intact or adding to them as the court
deems appropriate.
Accordingly, upon remand, the trial court is
instructed to reinstate the two convictions for sexual
assault in the fourth degree and to hold a sentencing
hearing solely for those two convictions.
The judgment in AC 36124 is affirmed. The judgment
in AC 36125 is reversed and the case is remanded with
direction to reinstate the conviction of two counts of
sexual assault in the fourth degree and for resentencing
on the reinstated counts.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim by name or others through whom the victim’s identity
may be ascertained. See General Statutes § 54-86e.
2
The court instructed the jury as follows: ‘‘You should keep in mind that
the arguments and statements by the lawyers in final arguments or during
the course of the case are not evidence. You should not consider as evidence
their recollection of the facts, nor their personal belief as to any of the facts,
or to the credibility of any of the witnesses, nor any facts that an attorney
may have presented to you in argument from that attorney’s knowledge that
was not presented to you as evidence during the course of the trial. . . .
In deciding what the facts are, you must of course consider all of the
evidence. In doing this, you must decide which testimony to believe and
which testimony not to believe. You may believe all, none, or any part of
any [witness’] testimony.’’
3
The defendant also appears to make the argument that the misstatements
and omissions in the court’s charge were not harmless. This assertion war-
rants little discussion. As noted, the record plainly supports the state’s claim
that evidence of the child’s age and of the defendant’s age was uncontested
and well supported, and that those ages indisputably fell well within parame-
ters for culpability under § 53a-73a (a) (1) (A).
4
Because the jury instruction for count four, risk of injury to a child, is
not relevant to the present cross appeal, we do not reproduce it here.
5
We decline to publish Z’s full date of birth pursuant to General Statutes
§ 54-86e.