State v. Pagan ( 2015 )

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STATE OF CONNECTICUT v. WILLIAM PAGAN
(AC 35994)
Sheldon, Prescott and Harper, Js.
Argued January 13—officially released July 21, 2015
(Appeal from Superior Court, judicial district of
Hartford, Vitale, J.)
Janice N. Wolf, assistant public defender, for the
appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Chris Pelosi, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
HARPER, J. The defendant, William Pagan, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of assault in the first degree in viola-
tion of General Statutes § 53a-59 (a) (1). On appeal,
the defendant claims that: (1) there was insufficient
evidence to establish that he intended to cause the
victim serious physical injury, which is an essential
element of assault in the first degree as charged in
this case; (2) the trial court improperly admitted the
testimony of a domestic violence expert to explain why
certain victims of domestic violence initially fail to
name their abusers when reporting injuries resulting
from domestic violence; and (3) the prosecutor made
improper remarks in closing argument by arguing facts
not in evidence, impugning defense counsel’s integrity,
and bolstering the credibility of the victim, in violation
of the defendant’s right to a fair trial. We affirm the
judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. The victim, Tashawna Gamble, lived with her
mother, Johnnie Partin, in an apartment in Hartford.
Gamble began dating the defendant approximately four
months before the incident that gave rise to the present
appeal. Partin disliked the defendant, and did not permit
him inside her apartment while she was home.
Between 4 and 5 p.m. on September 30, 2010, the
defendant called Gamble and asked her for the personal
identification number (PIN) for her debit card so that
he could use some of her money to repair her car’s
brakes. Gamble refused to give him the PIN because
once before when she had given him the PIN to another
bank card, he used it without her permission to with-
draw $900 from her bank account. Upon this refusal,
the defendant became upset with Gamble and they
argued over the telephone.
After Gamble left her place of employment at 6 p.m.,
she picked up the defendant at a nearby housing project
and then drove him to her apartment. Her mother was
not at home. After the defendant and Gamble entered
her bedroom, the defendant brought up Gamble’s
refusal to give him her PIN. When Gamble refused to
argue with the defendant, he grew angry and left the
room. When he returned, the defendant poured a flam-
mable liquid onto Gamble’s shoulder, arm and chest.1
Gamble stood up from her bed, but the defendant stated
that he was not finished talking to her and she sat down.
After Gamble sat back down on the bed, the defendant
lit a small piece of paper. The defendant then used the
burning paper to set Gamble on fire.
The flames spread quickly. Gamble screamed and ran
into the bathroom, while the defendant followed her,
shouting, ‘‘[o]h my gosh, oh my gosh, I didn’t know it
was going to be like that,’’ as he attempted to remove
Gamble’s burning shirt. Gamble asked the defendant to
turn on the shower, but instead he left the bathroom.
Although she was in pain, Gamble managed to get into
the shower. When the defendant returned to the bath-
room, Gamble asked him to call for emergency assis-
tance. The defendant, however, wondered aloud what
he should tell the dispatcher, and delayed calling for
help. The defendant, who was on probation, stated that
he did not want to return to jail and that he would say
that Gamble had been smoking a cigarette. He contin-
ued to delay calling for help. Gamble then asked the
defendant to call her cousin. As soon as he left to do
so, she called emergency assistance herself.
Gamble told the dispatcher that she had been smok-
ing a cigarette, which she had dropped on herself, start-
ing a fire. When the defendant returned to the bathroom
and learned that Gamble had called for help, he stated
that they ‘‘didn’t have no whole legitimate reason of
what happened . . . .’’ The defendant instructed Gam-
ble to tell emergency responders that she had been
using nail polish remover and lit a cigarette, which she
had dropped into her lap, starting the fire.2 When the
emergency responders arrived, the defendant opened
the door, identified himself and Gamble, and stated that
Gamble had suffered a burn. Gamble told emergency
responders, as the defendant had instructed her, that
she had burned herself by accidentally dropping a ciga-
rette. She then was transported to Saint Francis Hospi-
tal and Medical Center in Hartford for treatment.3
During Gamble’s hospitalization, she did not reveal
to anyone that the defendant was responsible for her
injuries. One reason she did not do so was because she
was being given high doses of pain medication and
could not communicate effectively. Another reason,
however, was that she was afraid that the defendant
might attempt to harm her mother. The defendant was
driving Gamble’s motor vehicle, and had keys to her
apartment. Although the defendant never visited Gam-
ble in the hospital, Partin claimed that he repeatedly
drove by the apartment at night and called her, asking
questions about Gamble.
After being released from the hospital, Gamble told
her mother the truth about what had occurred and that
the defendant was responsible for her injuries. Partin
had never believed Gamble’s initial story because Gam-
ble does not smoke. She encouraged Gamble to report
the incident to the police, which she did on November
15, 2010. Subsequently, the defendant was arrested.
On November 1, 2012, the defendant was charged by
long form information with one count each of assault
in the first degree in violation of § 53a-59 (a) (1), assault
in the first degree in violation of § 53a-59 (a) (3), and
assault in the second degree in violation of General
Statutes § 53a-60 (a) (3). Following a jury trial, the
defendant was found guilty of intentional assault in the
first degree in violation of § 53a-59 (a) (1).4 The court
rendered judgment in accordance with the verdict, sen-
tencing the defendant to a term of seventeen years
incarceration to be served consecutively to an unrelated
sentence that he was then serving. This appeal followed.
I
The defendant first claims that there was insufficient
evidence to support his conviction of assault in the first
degree in violation of § 53a-59 (a) (1). Specifically, he
argues that the evidence presented at trial was insuffi-
cient to establish, as an essential element of that
offense, that he intended to cause Gamble serious physi-
cal injury. We disagree.
We begin with the well established principles that
guide our review. ‘‘In reviewing a sufficiency of the
evidence claim, 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 reason-
ably drawn therefrom the [jury] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt . . . .
This court cannot substitute its own judgment for that
of the jury if there is sufficient evidence to support the
jury’s verdict. . . .
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the jury’s verdict of guilty.’’ (Internal quotation marks
omitted.) State v. Stephen J. R., 309 Conn. 586, 593–94,
72 A.3d 379 (2013).5
Section 53a-59 provides in relevant part: ‘‘(a) A person
is guilty of assault in the first degree when: (1) With
intent to cause serious physical injury to another per-
son, he causes such injury to such person . . . by
means of a deadly weapon or a dangerous instrument
. . . .’’6 As defined in General Statutes § 53a-3 (11), a
person acts intentionally with respect to a result
demanded in a statute defining an offense when his
conscious objective is to cause the result as defined by
the statute. See State v. Perugini, 153 Conn. App. 773,
780, 107 A.3d 435 (2014), cert. denied, 315 Conn. 911, 106
A.3d 305 (2015). We have long recognized that ‘‘direct
evidence of the accused’s state of mind is rarely avail-
able. . . . Therefore, intent is often inferred from con-
duct . . . and from the cumulative effect of the
circumstantial evidence and the rational inferences
drawn therefrom.’’ (Internal quotation marks omitted.)
State v. Hedge, 297 Conn. 621, 658–59, 1 A.3d 1051
(2010); State v. Silva, 285 Conn. 447, 460, 939 A.2d 581
(2008); State v. Fagan, 280 Conn. 69, 80–81, 905 A.2d
1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491,
167 L. Ed. 2d 236 (2007).
In the present case, the jury was instructed in accor-
dance with the definition of ‘‘serious physical injury,’’
as defined in § 53a-3 (4). A ‘‘serious physical injury’’ is
an ‘‘injury which creates a substantial risk of death, or
which causes serious disfigurement, serious impair-
ment of health or serious loss or impairment of the
function of any bodily organ.’’ (Internal quotation marks
omitted.) State v. Mendez, 154 Conn. App. 271, 277, 105
A.3d 917 (2014). Thus, to be convicted of assault in the
first degree, there must be sufficient evidence presented
for the jury to conclude beyond a reasonable doubt that
the defendant seriously injured Gamble by creating a
substantial risk of death, or that he caused serious dis-
figurement, or impairment of health or function of a
bodily organ, while acting with the conscious objective
of causing her such serious physical injury. See State
v. Perugini, supra, 153 Conn. App. 780.
The defendant claims that the record contains insuffi-
cient evidence to establish his intent to cause Gamble
to suffer a serious physical injury. We are not per-
suaded. The defendant does not argue that Gamble did
not suffer a serious physical injury; he claims only that
the evidence was insufficient to prove that he intended
to cause her such an injury. The defendant’s argument
is based on an interpretation of Gamble’s testimony
that places him in the best possible light. He argues
that he did not know that nail polish remover is flamma-
ble; that he did not intentionally light the flames; and
that he was shocked by the injuries and leapt to Gam-
ble’s aid. The defendant, in short, attempts to portray
himself as a Good Samaritan, rather than a person who
intentionally set Gamble on fire.
The record contains substantial evidence in support
of the state’s claim that the defendant intended to cause
a serious physical injury to Gamble. On the basis of the
defendant’s instructions to Gamble as to what to tell
emergency responders, the jury reasonably could have
inferred that he was aware that the nail polish remover
he poured on Gamble was highly flammable. The jury
also could have credited the testimony of Cesar Rodri-
guez, an investigator with the Hartford Fire Department,
that the spill pattern on Gamble’s shirt resulted from
the deliberate pouring of a flammable accelerant on
Gamble. Furthermore, the jury was free to infer that
when the defendant deliberately held a burning paper
close to Gamble’s accelerant soaked clothing, his con-
scious objective was to set her on fire, which was the
natural consequence of his voluntary conduct. See State
v. Serrano, 123 Conn. App. 530, 544, 1 A.3d 1277 (2010)
(jury may infer that defendant intends natural conse-
quences of voluntary conduct), cert. denied, 300 Conn.
909, 12 A.3d 1005 (2011).
On the basis of these inferences, a reasonable juror
could have concluded that the defendant’s conscious
objective was to set Gamble on fire and cause her to
suffer serious burns and their damaging consequences.
As Richard Garvey, a surgeon, testified, the deliberate
use of the accelerant resulted in injuries that if left
untreated could have resulted in Gamble’s death, and,
in fact, caused serious burns over 20 percent of her
body and resulting permanent injuries.
To the extent that the defendant challenges the suffi-
ciency of these inferences to prove intent, on the basis
of other inferences that could have been drawn by the
jury from his claimed efforts to mitigate the harm to
Gamble, we note that ‘‘the jury is not barred from draw-
ing those inferences consistent with guilt and is not
required to draw only those inferences consistent with
innocence.’’ (Internal quotation marks omitted.) State
v. Otto, 305 Conn. 51, 74, 43 A.3d 629 (2012). ‘‘[I]t is
beyond question that the trier of fact, here, the jury, is
the arbiter of credibility. This court does not sit as
an additional juror to reconsider the evidence or the
credibility of the witnesses.’’ (Internal quotation marks
omitted.) State v. Holmes, 75 Conn. App. 721, 742, 817
A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222
(2003). We conclude, therefore, that the jury reasonably
could have found that the defendant intended to cause
a serious physical injury to Gamble by deliberately pour-
ing an accelerant upon her and then igniting it.
II
The defendant next claims that the court abused its
discretion by admitting the testimony of a domestic
abuse expert offered by the state. Specifically, the
defendant argues that: (1) the trial court erred in failing
to categorically preclude expert testimony regarding
the misreporting or nonreporting of serious domestic
abuse by first time victims of such abuse because the
state did not connect the expert testimony to the con-
tested issues in the case by adducing evidence of a
history of domestic abuse between the defendant and
Gamble; and (2) that even if such testimony was not
categorically barred, the expert’s testimony was irrele-
vant because the necessary evidentiary foundation for
it was not laid. Because these claims were raised for
the first time on appeal, we conclude that they were
not properly preserved before the trial court and, as a
consequence, we decline to review them.
The following additional facts are relevant to these
claims. As part of its case-in-chief, the state called as
a witness Penny Micca, an outreach advocate with Inter-
val House, a domestic violence and abuse center located
in Hartford. The state sought to qualify Micca as an
expert witness. Outside the presence of the jury, and
in response to a defense query as to the relevancy of
Micca’s testimony and her familiarity with the case, the
state asserted that Micca had never met the victim but
that her testimony would help the jury understand the
general reasons for typical misreporting or nonre-
porting of serious domestic abuse by persons in inti-
mate relationships who are first time victims of such
abuse.
The defendant raised two specific objections to the
admission of Micca as an expert witness: (1) the type
of information that Micca would provide was within
the ken of the average juror; and (2) Micca’s testimony
would result in an improper bolstering of Gamble’s
credibility as a witness, causing the testimony to be
more prejudicial than probative. The trial court
requested that the state make a proffer as to the testi-
mony it sought to elicit from Micca and allowed the
defendant to voir dire her. Micca testified about the
general nature and circumstances of nontypical
reporting by first time victims of domestic abuse. She
specifically pointed to the severe trauma and shock
that can occur from first time instances of abuse. Micca
stated that a victim subjected to such trauma often feels
denial, shame, and particularly extreme fear of future
impacts on both themselves and their family and
friends. Micca further testified that as a result of the
trauma and the attendant feelings, victims will often
fail to disclose the abuse, or take blame upon them-
selves. She finally indicated that she did not know Gam-
ble and had not evaluated her or the veracity of her
statements. Following the proffer, the court ruled, pur-
suant to State v. Favoccia, 306 Conn. 770, 800, 51 A.3d
1002 (2012), and State v. Vega, 259 Conn. 374, 788 A.2d
1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L.
Ed. 2d 56 (2002), that the proffered expert testimony
provided by Micca was not within the ken of the average
juror, and, so long as she testified in generalities, was
not improperly bolstering Gamble’s credibility.
Following the ruling, defense counsel argued as
follows:
‘‘[Defense Counsel]: Judge, I understand the court’s
ruling. I’d just, to make sure the record’s complete from
my end, I would observe broadly that perhaps not all
but several of the sex assault cases contain language—
and I’ve paraphrased as a defense attorney something
to the effect of sex assault cases are different and spe-
cial, and the rules that apply other places sort of are
held in [abeyance] in sexual assault cases because of
the sort of private, discreet nature of a sex assault will
allow things that we wouldn’t necessarily allow other
places. So, I’m not sure that it’s fair to draw that reason-
ing into this particular case.
‘‘The Court: What about the reasoning in cases regard-
ing battered woman’s syndrome?
‘‘[Defense Counsel]: Judge, I understand those cases
exist, I’m just saying to—
‘‘The Court: Well, I mean, that’s to the argument
you’re making in terms of it’s not just limited to those
kinds of cases or this type of testimony. I’m not saying
it’s a battered woman’s case because the foundation
has not been laid for that, but in terms of what you’re
arguing now—
‘‘[Defense Counsel]: Well, with that—in that sort of,
you know, now we’re beginning to talk about, you know,
whether the witness is allowed to talk in terms of syn-
dromes and other things, and I don’t think that sort of
foundation’s been laid.
‘‘The Court: All right. [State’s attorney], obviously
you’re aware of [Favoccia] . . . being aware that that
case does say that you cannot opine—ask the witness
to opine about a particular complainant and whether
that person’s exhibited general characteristics, so that,
based on what I heard and the proffer, did not occur,
but I’m well aware of that, so I don’t expect any devia-
tion from the questions that you had asked [during your
proffer] in connection with that case.’’
The defendant argues as a threshold matter that the
more prejudicial than probative objection and the collo-
quy after the court’s ruling together properly preserved
the issues he seeks to raise on appeal. The state argues
that both of the arguments raised as part of this claim
was not properly preserved because the defendant did
not object to the testimony on those grounds. We agree
with the state and, thus, decline to review the defen-
dant’s claim.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must
properly articulate the basis of the objection so as to
appraise the trial court of the precise nature of the
objection and its real purpose, in order to form an
adequate basis for a reviewable ruling. . . . Once coun-
sel states the authority and ground of [the] objection,
any appeal will be limited to the ground asserted. . . .
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush.’’ (Inter-
nal quotation marks omitted.) State v. Cabral, 275 Conn.
514, 530–31, 881 A.2d 247, cert. denied, 546 U.S. 1048,
126 S. Ct. 773, 163 L. Ed. 2d 600 (2005),
It is clear from the record that the defendant did not
object to Micca’s testimony on the grounds of relevance
or lack of an adequate evidentiary foundation. When
asked to articulate his specific objections by the trial
court, the defendant stated that he objected specifically
on the grounds that the testimony was within the ken
of the jury, and was more prejudicial than probative
because it tended to bolster Gamble’s credibility. The
record reflects that the argument after the defendant’s
objections and the colloquy following the ruling on the
objections were focused solely on these two grounds.
Because the defendant did not specifically object on
the grounds on which he now seeks review, he failed
to preserve the objections adequately for review.
The defendant argues that when he objected that
Micca’s testimony was more prejudicial than probative,
he implicitly objected to the testimony’s relevance. This
argument misconstrues the nature of relevance and
more prejudicial than probative objections. As this
court has previously stated, relevant evidence is ‘‘evi-
dence that has a logical tendency to aid the trier in the
determination of an issue.’’ (Internal quotation marks
omitted.) State v. Clark, 68 Conn. App. 19, 24, 789 A.2d
549 (2002), aff’d, 264 Conn. 723, 826 A.2d 128 (2003).
As our Supreme Court has noted, the test for whether
evidence is unjustly prejudicial requires us to determine
‘‘whether the prejudicial effect of otherwise relevant
evidence outweighs its probative value . . . .’’ (Empha-
sis added.) State v. Collins, 299 Conn. 567, 587, 10 A.3d
1005, cert. denied, U.S. , 132 S. Ct. 314, 181 L.
Ed. 2d 193 (2011). An objection that evidence is more
prejudicial than probative argues that regardless of the
relevance of the evidence, it must be excluded due to
the threat of an injustice were it admitted. See State v.
Paulino, 223 Conn. 461, 477, 613 A.2d 720 (1992); C.
Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008)
§ 4.8.1, p. 142. For this reason, the two objections are
separate and distinct, and an argument that Micca’s
testimony was irrelevant was not preserved by the
defendant’s general challenge that the testimony was
more prejudicial than probative. See State v. Allen, 289
Conn. 550, 564, 958 A.2d 1214 (2008) (prejudice not
measured by relevance but by impact of extraneous
information).
The defendant additionally argues that his counsel’s
colloquy with the court following the court’s ruling was
sufficient to preserve the issues now raised on appeal.
Our Supreme Court, however, addressed a similar cir-
cumstance in Cabral. In that case, the court did not
consider a postruling colloquy on the applicability of
case law to the stated objections as raising a new objec-
tion. State v. Cabral, supra, 275 Conn. 529 n.10. As in
Cabral, the defendant in this case did not specifically
raise an additional objection, nor did he deviate in his
argument from his earlier stated objections. See id.
Rather, he challenged only the court’s reasoning in
applying Favoccia and Vega to the ruling on his objec-
tion that the testimony was within the ken of the jury.
At no time did he object on the grounds that there
was inadequate foundation to support the use of expert
testimony for the purpose of explaining typical misre-
porting or nonreporting of serious domestic abuse by
persons who are first time victims of such abuse.
Rather, the defendant noted that no foundation had
been laid for a discussion by the witness about whether
Gamble suffered from specific medical syndromes,
such as battered woman’s syndrome. The trial court
agreed and noted that had Micca so testified, her testi-
mony would have been precluded under Favoccia. It
never considered whether a proper foundation had been
laid for the entirety of Micca’s testimony. Consequently,
the record does not reflect that the colloquy sufficiently
preserved the issue raised on appeal.
Finally, the defendant seeks review of this claim
under State v. Golding, 213 Conn. 233, 567 A.2d 823
(1989). ‘‘In State v. Golding, [supra, 239–40], this court
set forth four conditions that a defendant must satisfy
before he may prevail, on appeal, on an unpreserved
constitutional claim. Because a defendant cannot pre-
vail under Golding unless he meets each of those four
conditions, an appellate court is free to reject a defen-
dant’s unpreserved claim upon determining that any one
of those conditions has not been satisfied.’’ (Footnote
omitted.) State v. Brunetti, 279 Conn. 39, 54, 901 A.2d
1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328,
167 L. Ed. 2d 85 (2007).
The defendant must show that the unpreserved issue
is of constitutional magnitude that implicates a violation
of a fundamental right as one of the four conditions
that must be met to merit review under Golding. State
v. Elson, 311 Conn. 726, 744, 91 A.3d 862 (2014). Our
Supreme Court has noted, however, that an unpre-
served claim regarding the admission of expert testi-
mony does not raise a constitutional issue. See State
v. Toccaline, 258 Conn. 542, 550–52, 783 A.2d 450 (2001).
We are unconvinced by the defendant’s claims to the
contrary. ‘‘Putting a constitutional tag on a nonconstitu-
tional claim will no more change its essential character
than calling a bull a cow will change its gender.’’ State
v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). We
therefore decline to review the merits of the defen-
dant’s claim.
III
Finally, the defendant claims that several statements
made by the prosecutor during the closing argument
were improper and deprived him of a fair trial. The
defendant specifically challenges statements in which
he claims the prosecutor discussed facts not in evi-
dence, improperly disparaged the integrity of defense
counsel, and attempted to influence the jury as to Gam-
ble’s credibility. We conclude that none of the chal-
lenged statements were improper.7
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [an impro-
priety] occurred in the first instance; and (2) whether
that [impropriety] deprived [the] defendant of his due
process right to a fair trial. Put differently, [an impropri-
ety is an impropriety], regardless of its ultimate effect
on the fairness of the trial; whether that [impropriety]
caused or contributed to a due process violation is a
separate and distinct question . . . .’’ (Internal quota-
tion marks omitted.) State v. Andrews, 313 Conn. 266,
279, 96 A.3d 1199 (2014); State v. Stevenson, 269 Conn.
563, 572, 849 A.2d 626 (2004).
‘‘As we previously have recognized, prosecutorial
[impropriety] of a constitutional magnitude can occur
in the course of closing arguments. . . . When making
closing arguments to the jury, [however] [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 prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from. . . . Moreover, [i]t does not follow . . . that
every use of rhetorical language or device [by the prose-
cutor] is improper. . . . The occasional use of rhetori-
cal devices is simply fair argument. . . . Nevertheless,
the prosecutor has a heightened duty to avoid argument
that strays from the evidence or diverts the jury’s atten-
tion from the facts of the case.’’ (Internal quotation
marks omitted.) State v. Medrano, 308 Conn. 604, 611–
12, 65 A.3d 503 (2013).
A
The defendant first claims that the prosecutor made
improper statements that were based on facts that were
not in evidence. He specifically challenges portions of
the prosecutor’s closing arguments in which the prose-
cutor stated that: (1) the defendant gave first respond-
ers ‘‘a lot of information’’; (2) the defendant placed nail
polish remover bottles and ashtrays in Gamble’s room;
(3) Gamble was able to identify the nail polish remover
based on smell; and (4) the defendant knew nail polish
remover was flammable.8 We disagree.
‘‘It is well established . . . that a prosecutor, in ful-
filling his duties, must confine himself to the evidence
in the record. . . . Statements as to facts that have not
been proven amount to unsworn testimony, which is
not the subject of proper closing argument. . . . A
prosecutor may invite the jury to draw reasonable infer-
ences from the evidence; however, he or she may not
invite sheer speculation unconnected to evidence.’’
(Internal quotation marks omitted.) State v. Jones, 135
Conn. App. 788, 801, 44 A.3d 848, cert. denied, 305 Conn.
925, 47 A.3d 885 (2012).
By asserting that the defendant provided emergency
responders a lot of information, the prosecutor was
inviting the jury to make reasonable inferences from the
evidence at trial. As was established by both Lieutenant
Dan Albani of the Hartford Police Department and Gam-
ble, the defendant greeted the responders at the door,
identified himself, and explained that Gamble was
injured. The jury was thus free to conclude that the
defendant provided the emergency responders with
information about the circumstances of Gamble’s injur-
ies. The prosecutor’s characterization of the informa-
tion as ‘‘a lot’’ urged the jury to make a permissible
reasonable inference. See State v. Washington, 155
Conn. App. 582, 604, 110 A.3d 493 (2015).
The prosecutor’s statement that the defendant
arranged Gamble’s room with ashtrays and nail polish
removers was also based on reasonable inferences
drawn from the evidence. As the prosecutor noted in
his closing argument, the defendant was the individual
who invented the story that Gamble had spilled nail
polish remover on herself, then lit herself on fire with
a dropped cigarette. He also had the opportunity and
motivation to arrange the room to reflect the version
of events he wanted to portray as true. The jury may
make reasonable inferences from circumstantial evi-
dence. State v. Russell, 101 Conn. App. 298, 333, 922 A.2d
191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007).
Similarly, the prosecutor’s statement that the defen-
dant knew that nail polish remover was flammable was
based on reasonable inferences from the evidence of
record. We find unpersuasive the assertion by the defen-
dant that the state never demonstrated that he had
such knowledge, especially given how the defendant
suggested to Gamble that the accelerant was nail polish
remover and argued in his own closing that such knowl-
edge was clearly marked on nail polish remover bottles
so that anyone who used them would be aware of its
properties.9 As such, the prosecutor’s statement was
not only based on reasonable inferences drawn from
the evidence, but it properly appealed to the jurors’
common sense. See State v. Andrews, supra, 313
Conn. 304.
The defendant last argues that the prosecutor’s state-
ment that Gamble was able to identify the accelerant
as nail polish remover ‘‘based on smell’’ was directly
contradictory to Gamble’s own testimony. The record
belies the defendant’s claims. Gamble noted that she
smelled the liquid the defendant had poured on her,
but did not identify the liquid as nail polish remover at
that time. She did not testify, as the defendant asserts,
that the liquid did not smell like nail polish remover.
Gamble’s testimony is ambiguous as to what the liquid
smelled like, for she only stated that she was unable
to identify it at the time she was doused, and did not
realize it was nail polish remover until the defendant
instructed her to tell others that it was nail polish
remover. The prosecutor argued that it was the smell,
as well as Gamble’s knowledge that her mother used
nail polish remover and the defendant’s own words
asserting that the liquid was nail polish remover, that
made her conclude that the defendant had doused her
with that type of liquid.
When considering the prosecutor’s statements, we
must not consider them in a vacuum, but rather in their
entire context. State v. Angel T., 292 Conn. 262, 275,
973 A.2d 1207 (2009). The prosecutor’s statement that
Gamble was able to identify the liquid on the basis of
its smell was at most a stretched inference from vague
testimony and was immediately clarified as being part
of an assumption that was based on multiple factors.
Our Supreme Court has declined to afford the most
damaging interpretations to ambiguous remarks by
prosecutors when more reasonable interpretations
exist. See State v. Ciullo, 314 Conn. 28, 48, 100 A.3d
779 (2014). As such, we conclude that the statement
was not improper.
In all four statements challenged by the defendant,
the prosecutor characterized the evidence in a manner
that allowed the jury to draw reasonable inferences,
which is within the bounds of propriety during closing
argument. See State v. Jones, supra, 135 Conn. App.
800–801 (‘‘[a] prosecutor may invite the jury to draw
reasonable inferences from the evidence’’ [internal quo-
tation marks omitted]). Although the defendant may
disagree with the content of those inferences, that does
not render the argument improper. See State v.
Andrews, supra, 313 Conn. 304.
B
The defendant next claims that the prosecutor
improperly disparaged the integrity of defense counsel.
Specifically, the defendant argues that the prosecutor’s
statements during rebuttal argument insinuated that
defense counsel was not basing his argument on the
evidence or was misrepresenting the evidence because
the prosecutor indicated that he ‘‘was going to stick to
the facts,’’ and found the defendant’s argument ‘‘incon-
ceivable . . . .’’10 We are not persuaded that the state-
ments were improper.
Although it is well settled that ‘‘[t]he prosecutor is
expected to refrain from impugning, directly or through
implication, the integrity or institutional role of defense
counsel’’; (internal quotation marks omitted) State v.
James E., supra, 154 Conn. App. 820–21; nothing in the
present case suggests that the prosecutor’s comments
were disparaging. As defense counsel finished his clos-
ing argument, he postulated a series of alternative theo-
ries to the case, emphasizing that each might have
occurred.11 The prosecutor’s statement in his rebuttal
argument that he was ‘‘going to stick to the facts’’ served
to focus the jury’s attention on the evidence that the
state wanted to highlight in response to defense coun-
sel’s speculation as to the chain of events. See State v.
Holley, 144 Conn. App. 558, 573, 72 A.3d 1279, cert.
denied, 310 Conn. 946, 80 A.3d 907 (2013). The prosecu-
tor’s argument that the defendant’s version of events
was ‘‘inconceivable’’ was directed at the defendant’s
theory, not at defense counsel. These statements are
permissible because they challenge the theory of
defense, not counsel. State v. Salamon, 287 Conn. 509,
558, 949 A.2d 1092 (2008).
C
The defendant last claims that the prosecutor improp-
erly commented on Gamble’s credibility as a witness.
See State v. Luster, 279 Conn. 414, 435, 902 A.2d 636
(2006). He contends that the prosecutor impermissibly
bolstered Gamble’s credibility with the jury by stating
that Gamble’s story made ‘‘perfect sense’’; asking an
improper rhetorical question about whether she seemed
spiteful; and discussing his pretrial conversations with
Gamble. We disagree.
We initially note that the portion of the prosecutor’s
argument in which he stated that Gamble’s story made
‘‘perfect sense’’ did not impermissibly bolster her credi-
bility.12 When the prosecutor stated that Gamble’s deci-
sions made ‘‘perfect sense,’’ he was addressing the
reason she did not initially tell the police how she sus-
tained her injuries. The characterization was grounded
in the evidence the state elicited through both Gamble’s
testimony and expert testimony for the specific purpose
of helping the jury to understand the behavior of victims
of abuse. ‘‘It is well established that a prosecutor may
argue about the credibility of witnesses, as long as [his]
assertions are based on evidence presented at trial and
reasonable inferences that jurors might draw there-
from.’’ (Internal quotation marks omitted.) State v.
Ciullo, supra, 314 Conn. 45.
We also conclude that the prosecutor did not act
improperly by asking the jury a rhetorical question as
to whether Gamble was spiteful.13 By asking the ques-
tion, the prosecutor encouraged the jury to consider
the evidence and weigh the credibility of Gamble’s testi-
mony in context. To the extent that the prosecutor’s
argument encouraged the jury to draw inferences favor-
able to Gamble’s credibility, its purpose was to ask the
jurors to draw those inferences from the evidence. See
State v. Fauci, 282 Conn. 23, 48, 917 A.2d 978 (2007);
see also State v. Thompson, 266 Conn. 440, 465–66, 832
A.2d 626 (2003).
Finally, we conclude that the prosecutor’s statement
that he did not inappropriately coach Gamble came
in direct response to the defendant’s argument. The
following additional facts are relevant to this claim.
During her direct testimony, Gamble stated that during
and after her hospitalization she felt ‘‘betrayed’’ by the
defendant’s actions. On cross-examination, the defen-
dant questioned her as follows:
‘‘[Defense Counsel]: Now, you get out of the hospital.
You tell the ladies and gentlemen of the jury you felt
betrayed. Right?
‘‘[Gamble]: Excuse me?
‘‘[Defense Counsel:] You told them earlier when you
were talking with [the prosecutor] after you got out,
you felt betrayed. Right?
‘‘[Gamble]: Yes.’’ (Emphasis added.)
Defense counsel later argued in closing that the pros-
ecutor had met with Gamble and coached her to ascribe
her feelings of betrayal resulting from the defendant’s
actions. The defendant then suggested that in fact those
feelings stemmed from an unrelated matter.14 The prose-
cutor responded during rebuttal argument that, while
he had met with Gamble before her testimony, he had
not engaged in coaching, and rhetorically asked the jury
whether Gamble should have felt anything other than
betrayal, given the injuries she sustained.15
The defendant claims that the prosecutor’s assertion
that Gamble’s meaning behind the word betrayed was
unscripted resulted in an impermissible endorsement
of Gamble’s credibility.16 Although the prosecutor
acknowledged that he had spoken with Gamble, the
statement was not a personal commentary on her relia-
bility. On the contrary, the prosecutor attempted to
counter the implicit assertion by the defendant that the
prosecutor encouraged Gamble to lie about her feelings
and motivations. Our Supreme Court ‘‘clearly has estab-
lished the propriety of a prosecutor’s comments on
such motives, as long as the remarks are based on the
ascertainable motives of the [witness] rather than the
prosecutor’s personal opinion.’’ (Internal quotation
marks omitted.) State v. Long, 293 Conn. 31, 45, 975
A.2d 660 (2009). The prosecutor’s question as to what
motive Gamble would have to lie about her emotions
following her injuries was therefore not improper
because it did not attempt to bolster Gamble’s credibil-
ity through personal opinion. See id., 44. In sum, we
conclude that none of the statements by the prosecutor
during closing argument were improper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On the basis of the testimony of Lieutenant Cesar Rodriguez, an investiga-
tor with the Hartford Fire Department’s fire marshal’s office, the jury reason-
ably could have found that the pattern of burns on Gamble’s shirt reflected
a deliberate pouring of liquid rather than a spill, in part due to the widespread
nature of the burns across the shoulder and arm rather than a localized
amount of spillage. The nature of the burns did not reflect a person
attempting to stop an accidental spill.
2
Lieutenant Dan Albani of the Hartford Fire Department smelled the
distinctive odor of nail polish remover or acetone when he entered Gamble’s
apartment in response to her call. He and Jill Kidik, an officer with the
Hartford Police Department, both saw a nearly empty bottle of nail polish
remover in Gamble’s bedroom.
3
Gamble suffered third degree burns across more than 20 percent of her
body, from her chin to her midriff and across her left shoulder and arm,
and received skin grafts to 20 percent of her body. She developed infections
that required further surgical intervention. As a result of the amount of
time she was hospitalized, she developed blood clots in her legs, which
permanently impaired her left leg. Her left arm has reduced functionality.
She has permanent scarring due to her injuries, which require ongoing
physical therapy. Without treatment, Gamble’s injuries likely would have
resulted in her death.
4
As a result of its guilty verdict on the charge of assault in the first degree
in violation of § 53a-59 (a) (1), the jury did not deliberate or return a verdict
on the other two charges.
5
We note that ‘‘[a]lthough the defendant did not preserve [his] claim at
trial, all sufficiency of evidence claims are reviewable on appeal because
such claims implicate a defendant’s federal constitutional right not to be
convicted of a crime on insufficient proof.’’ State v. Miles, 132 Conn. App.
550, 559, 32 A.3d 969 (2011), cert. denied, 303 Conn. 934, 36 A.3d 692 (2012).
6
‘‘Assault in the first degree is a specific intent crime. . . . It requires
that the criminal actor possess the specific intent to cause physical injury
to another person.’’ (Internal quotation marks omitted.) State v. James E.,
154 Conn. App. 795, 804, 112 A.3d 791 (2015); State v. Sivak, 84 Conn. App.
105, 110, 852 A.2d 812, cert. denied, 271 Conn. 916, 859 A.2d 573 (2004).
7
The defendant failed to object to the alleged improper statements during
trial. ‘‘[I]n cases involving incidents of prosecutorial [impropriety] that were
not objected to at trial . . . it is unnecessary for the defendant to seek to
prevail under the specific requirements of [State v. Golding, supra, 213
Conn. 239–40], and, similarly, it is unnecessary for a reviewing court to apply
the four-pronged Golding test. The reason for this is that the touchstone for
appellate review of claims of prosecutorial [impropriety] is a determination
of whether the defendant was deprived of his right to a fair trial, and this
determination must involve the application of the factors set [forth] by this
court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).’’ (Internal
quotation marks omitted.) State v. Andrews, supra, 313 Conn. 280.
8
For clarity, the challenged portions of the prosecutor’s closing argument
are italicized. The prosecutor’s comments, placed into context, were as
follows. When addressing the defendant’s interaction with emergency
responders, the prosecutor stated: ‘‘So, it then begs the question, since they
got limited information from [Gamble], how much information did they get
from [the defendant]? It makes perfect sense and [is a] logical inference
that you can make that he gave them a lot of information. He was the one
who led them into [Gamble’s] room.’’ (Emphasis added.)
When addressing the defendant’s actions while Gamble was in the shower,
the prosecutor stated: ‘‘[The defendant] came up with the story of this whole
nail polish remover, so, he’s going to make it look like there was nail polish
remover and ashtrays and so forth in the room. Remember, he had the
opportunity while she was burning . . . there was a time when he wasn’t
in that room that leads you to believe what was he doing at the time when
she’s in there besides calling the cousin and saying, how do I get out of
this jam.’’ (Emphasis added.)
Subsequently, when discussing the liquid poured on Gamble, the prosecu-
tor stated: ‘‘[Gamble] didn’t actually see [the defendant] pour it, but she felt
it, it was very wet to her skin, only her left side, on her arm and on her
chest area. And, again, although she didn’t see it, she based that it was
nail polish remover based on the smell. She knows that her mom has used
it in the past. And, obviously, the defendant told her, when we come up
with a story, you got to say it was nail polish remover. And she made the
assumption, obviously, it is nail polish remover.’’ (Emphasis added.)
Finally, in addressing the defendant’s mental state, the prosecutor stated,
‘‘So, with that, and plugging in [the defendant’s] conduct, was he aware of
the substantial and justifiable risk? Of course, he was. Again there was—
of course, he was; he knows it’s flammable. He knows it’s flammable. He
poured it on her and got a flame. He took the time to go find it. The bottle says
it’s flammable. And he poured it on her for a reason.’’ (Emphasis added.)
9
The defendant’s counsel stated the following during closing argument:
‘‘You know, it says right here, warning, extremely, extremely flammable.
Liquid and vapors may ignite. Do not use when smoking.’’
10
The prosecutor’s comments were as follows. At the beginning of his
rebuttal argument, the prosecutor stated: ‘‘See, the problem with [defense
counsel’s] argument is, all these maybes, maybes, maybes, or, or, or, that’s
all speculation. I mean, I can come up here and come up with a bunch of
novel ideas of how it happened. But, again, you have to base your case or
your decision on the evidence. . . . Just to follow up on a few things
relative to [defense counsel’s] argument, and I’m going to stick to the facts.’’
(Emphasis added.) The prosecutor then directly proceeded to address the
defendant’s argument about the motivation for Gamble’s testimony.
As he was finishing his rebuttal, the prosecutor stated: ‘‘If you dropped
a bottle of nail polish, it’s going to be—it’s going to fall away from you. If
you’re sitting down, it’s going to fall in your lap. There’s no injuries on
[Gamble’s] lap. It’s inconceivable what [defense counsel] is suggesting to
you. And all I ask you is that you do use common sense, which you’re
allowed to do in a case like this or in any criminal case.’’ (Emphasis added.)
11
Defense counsel stated as part of the end of his closing argument:
‘‘[Gamble’s] mom had gone to Florida; that’s when [the defendant] was over
at the Gamble house. Did she want to tell her mom that? Did she want to
tell her mom, I was excited, [the defendant] and I were going out, you know,
maybe my nails were a little beat up from being a cashier, and maybe I
wanted to dress up a little bit and maybe I was doing my nails, and maybe
it was something I don’t do normally, and maybe I did spill the nail pol-
ish remover.’’
Defense counsel continued: ‘‘So, maybe she did spill the nail polish
remover. Maybe the medical records are correct; maybe she smokes occa-
sionally. Maybe she smokes when her mom’s not around because she’s not
really wanting to tell her mom about her smoking. Maybe she smokes around
[the defendant]. And maybe she did drop the cigarette on herself after
spilling the nail polish remover. Maybe it didn’t require all that much to get
her bra caught on fire.’’
12
The prosecutor’s full comment was as follows. When addressing why
Gamble changed her story, the prosecutor stated, ‘‘It was only her and her
mother living in the house at that time. But her mother testified that she
was fearful. He had access to her keys, meaning [the defendant]. So, is it
reasonable that she was fearful for the mother at the time, fearful for her
own life, didn’t want to swear out a warrant at the time when she’s miles
away from home and the mother’s living alone in Hartford? It makes perfect
sense, ladies and gentlemen.’’ (Emphasis added.)
13
When asking the jury to consider the defendant’s theory that Gamble
was lying, the prosecutor stated, ‘‘As I’m sure you’re aware, and the judge
is going to explain to you, that your verdict must be based on the evidence
presented to you, not speculation, not guesses, but the evidence presented
to you. But for now, I want you to ask yourselves, what evidence was
presented to you that Tashawna Gamble had a motive to falsely accuse
[the defendant] of this situation? What history of Tashawna Gamble was
presented by the state to show she had a motive? What evidence was
presented that Tashawna Gamble had an interest in the outcome of this
case or that she had a prior bias toward this defendant prior to the offense?
You saw her demeanor, you saw her manner while testifying. Did she really
seem like she was a spiteful person that would do this?’’ (Emphasis added.)
14
Defense counsel’s full statement was as follows: ‘‘Ms. Gamble was sitting
right there. You know that she had met with [the prosecutor]. I think it’s
fair to infer that they had gone over to some degree what her testimony
might be. And [the prosecutor] asked her, in relationship to the time she
got out of her ordeal of the hospital, asked her, how did you feel? Do
you remember her answer? I felt betrayed. Oh, that could be because [the
defendant] had lit her on fire.’’
Defense counsel then proceeded to argue that Gamble felt betrayed due
to the alleged infidelity of the defendant.
15
The prosecutor’s full response during rebuttal was as follows: ‘‘Of
course, we met, me and [Gamble], went over what her testimony was going
to be. Okay? Do you think we suggested to her or script[ed] out what to
say in a case like this? She said she was betrayed. Really. She got . . . lit
on fire by her boyfriend, and she felt betrayed. Was she supposed to say,
‘[w]ell, I felt good, I felt happy.’ What else was she supposed to say?’’
(Emphasis added.)
16
We note, briefly, that it is not perfectly clear from the record whether
Gamble testified on cross-examination that she met with the prosecutor, as
asserted by defense counsel in his closing argument. Defense counsel’s
phrasing of the question in stating that ‘‘[y]ou told them earlier when you
were talking with [the prosecutor] after you got out’’ lends itself to two
interpretations: that either Gamble talked to the prosecutor after she got
out of the hospital and stated that she felt betrayed, or she told the prosecutor
earlier during direct examination that when she was discharged she felt
betrayed. As defense counsel endorsed the first interpretation during closing
and has not challenged it on appeal, and because of our unwillingness to
interpret ambiguities in the record in the light most harmful to the state,
we consider the defendant’s interpretation of the ambiguity. See State v.
Ciullo, supra, 314 Conn. 48.