State v. Williams , 172 Conn. App. 820 ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. CHARLES WILLIAMS
(AC 37923)
Lavine, Alvord and Beach, Js.
Argued February 14—officially released May 9, 2017
(Appeal from Superior Court, judicial district of
Hartford, Suarez, J. [motion for recusal]; Alexander, J.
[plea proceeding].)
Donald F. Meehan, assigned counsel, with whom, on
the brief, was Walter C. Bansley IV, for the appellant
(defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Gail P. Hardy, state’s attorney, and
Donna Mambrino, supervisory assistant state’s attor-
ney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Charles Williams, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of unlawful restraint in the first
degree in violation of General Statutes § 53a-95. The
jury found the defendant not guilty of two counts of
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (1). Following the jury verdict, the
defendant pleaded guilty to being a persistent serious
offender in violation of General Statutes § 53a-40 (c).
On appeal, the defendant claims that (1) there was
insufficient evidence presented at trial to support his
conviction of unlawful restraint in the first degree; (2)
the trial court abused its discretion by denying his
motion to reconsider his oral motion for recusal; and
(3) the prosecutor violated his right to a fair trial by
committed certain improprieties during closing argu-
ment. We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
The victim1 and the defendant met in 2001 and began
dating in 2007. Over time, the defendant became physi-
cally, verbally, and emotionally abusive. On some occa-
sions, the victim reported the defendant’s abuse to the
police, friends, or family, but, on other occasions, she
did not report the abuse because she learned that she
‘‘had to kind of pick [her] battles’’ with the defendant.
In April, 2012, the victim decided to end her relationship
with the defendant. The defendant was upset and began
stalking the victim. During this period, the victim and
the defendant filed police reports against each other,
and, as a result of one of the defendant’s complaints,
the victim was criminally charged.2
The victim thereafter moved from Bloomfield to Hart-
ford and changed her phone number on several occa-
sions. Nevertheless, the defendant continued to come
to the victim’s house and call her even though the victim
told him that she did not want to be in a relationship
with him and that she wanted him to stop contacting
her. When confronting the victim, the defendant would
often threaten to call the police and make false reports
so that she would be taken away from her family.3
During this period, the victim acquiesced on several
occasions to having sexual intercourse with the defen-
dant because she knew that he would leave her
house afterward.
On February 14, 2013, the victim was at home with
her infant grandson (February 14 incident). The victim
put her grandson down for his nap in her bedroom at
10 a.m. Sometime thereafter, while the victim’s grand-
son was still napping, the defendant arrived at her house
and began yelling at her because he believed that she
was sleeping with other men. The victim asked the
defendant to leave her house, but he continued to yell
at her. The victim told the defendant that she was not
sleeping with anyone else and asked him to speak more
quietly because her grandson was taking his nap. The
defendant demanded sexual intercourse and threatened
to file a false police report against the victim if she did
not have sexual intercourse with him.
As the defendant advanced on her, the victim backed
away from the defendant and into her bedroom. Follow-
ing her into the bedroom, the defendant pulled a knife
out of his pocket and told the victim to ‘‘stop acting
up.’’ The victim again asked the defendant to leave, but
the defendant told the victim to perform oral sex on
him because it was Valentine’s Day. When the victim
continued to refuse, the defendant grabbed the victim
by her hair and threw her down on the bed, and the
victim fell onto the floor.
The victim began performing oral sex on the defen-
dant. When the victim began crying, the defendant
became angry and ordered her to stop crying because
she was ‘‘making [him] soft.’’ When the victim continued
to cry, the defendant threw her on the bed, pulled down
her pants, and vaginally penetrated her from behind
while holding her down on the bed by her arms. When
the victim heard her grandson crying, she asked the
defendant to stop, but he continued to penetrate her
until he ejaculated. The defendant complained that the
victim ‘‘ruined his sex’’ and then left her house.
On February 28, 2013, the defendant returned to the
victim’s house while she was there with her daughters
and grandsons (February 28 incident). The defendant
demanded to know her new phone number and with
whom she was having sexual intercourse. The situation
escalated and the defendant punched the victim in the
face, breaking her nose. Thereafter, the defendant left
her house. The victim did not want to report the incident
to the police, but one of her daughters called the police
that same day. Although the victim spoke to the investi-
gating officer and identified her assailant as a former
boyfriend, she refused to provide the defendant’s name
at that time because she was afraid of him.
Following the February 28 incident, the victim began
living in domestic violence shelters and stopped going
to her house and telling people where she was living
in an attempt to get away from the defendant. During
this period, the victim received medical and psychologi-
cal treatment. Assisted by the psychological treatment
she was receiving, in April, 2013, the victim decided to
identify the defendant as her assailant in the February
28 incident. In September, 2013, the victim further
reported the February 14 incident to the police.
The defendant was arrested in connection with the
February 14 incident and charged with two counts of
sexual assault in the first degree and one count of
unlawful restraint in the first degree. While the defen-
dant was incarcerated and awaiting trial, he frequently
spoke about his case with Elon Henry, a fellow inmate
with whom he was previously acquainted. On December
5, 2014, three days before the defendant’s trial was
scheduled to commence, the defendant told Henry that
‘‘this girl [i.e., the victim] got me going through it right
now. I’m a kill this girl . . . with my bare hands, and
if I don’t kill her I’m a get close and I’m a make her
give me head for like an hour this time.’’ The threatening
manner in which the defendant spoke concerned Henry,
and he reported the defendant’s statement to a correc-
tional officer that evening.
Trial commenced on December 8, 2014. The defen-
dant presented an alibi defense, supported by his own
testimony and the testimony of his mother, his sister,
his nephew, and his girlfriend’s cousin. The jury found
the defendant guilty of unlawful restraint in the first
degree but not guilty of the two counts of sexual assault
in the first degree. Following the jury verdict, the defen-
dant pleaded guilty to being a persistent serious felony
offender. The defendant was sentenced to ten years
imprisonment. This appeal followed. Additional facts
will be set forth as necessary.
I
We begin with the defendant’s claim that there was
insufficient evidence presented at trial to convict him
of unlawful restraint in the first degree. Specifically, the
defendant claims that there was insufficient evidence as
to the elements of restraint and intent.4 We disagree.
We begin with the standard of review and legal princi-
ples that guide our analysis.5 ‘‘In reviewing the suffi-
ciency 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 con-
strued 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. . . .
‘‘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.
Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).
‘‘A person is guilty of unlawful restraint in the first
degree when he restrains another person under circum-
stances which expose such other person to a substantial
risk of physical injury.’’ General Statutes § 53a-95 (a).
‘‘[T]he hallmark of an unlawful restraint . . . is a
restraint.’’ State v. Salamon, 287 Conn. 509, 530, 949
A.2d 1092 (2008). ‘‘As applicable to § 53a-95 (a), [p]er-
sons are restrained when their movements are inten-
tionally restricted so as substantially to interfere with
their liberty, either (1) by moving them from one place
to another, or (2) by confining them either to the place
where the restriction commences or to the place where
they have been moved without their consent. General
Statutes § 53a-91 (1).’’ (Internal quotation marks omit-
ted.) State v. Youngs, 97 Conn. App. 348, 354, 904 A.2d
1240, cert. denied, 280 Conn. 930, 909 A.2d 959 (2006).
Furthermore, unlawful restraint in the first degree
requires that the defendant had the specific intent to
restrain the victim. State v. Salamon, supra, 287 Conn.
570. Specific intent is ‘‘an intent to bring about a certain
result.’’ Id., 572. Thus, to prove unlawful restraint in
the first degree, the state must also ‘‘establish that the
defendant had restricted the victim’s movements inten-
tionally and unlawfully in such a manner as to interfere
substantially with her liberty by confining her without
her consent.’’ (Emphasis in original; internal quotation
marks omitted.) Id., 573.
‘‘Because direct evidence of an accused’s state of
mind typically is not available, his intent often must be
inferred from his conduct, other circumstantial evi-
dence and rational inferences that may be drawn there-
from. . . . For example, intent may be inferred from
the events leading up to, and immediately following,
the conduct in question . . . the accused’s physical
acts and the general surrounding circumstances. . . .
[W]hen a jury evaluates evidence of a defendant’s intent,
it properly rel[ies] on its common sense, experience
and knowledge of human nature in drawing inferences
and reaching conclusions of fact.’’ (Citations omitted;
internal quotation marks omitted.) State v. Winot, 294
Conn. 753, 768, 988 A.2d 188 (2010).
In support of his claim, the defendant argues that
there was insufficient evidence to convict him of unlaw-
ful restraint because the charge was based on the vic-
tim’s testimony, which the jury necessarily discredited
because it found him not guilty of the two counts of
sexual assault in the first degree. The defendant’s argu-
ment fails to recognize that in determining the credibil-
ity of witnesses the jury may decide ‘‘what—all, none,
or some—of a witness’ testimony to accept or reject.’’
(Internal quotation marks omitted.) State v. Victor C.,
145 Conn. App. 54, 61, 75 A.3d 48, cert. denied, 310
Conn. 933, 78 A.3d 859 (2013). On appeal ‘‘[w]e do not
sit as a [seventh] juror who may cast a vote against the
verdict based upon our feeling that some doubt of guilt
is shown by the cold printed record. . . . Rather, we
must defer to the jury’s assessment of the credibility
of the witnesses based on its firsthand observation of
their conduct, demeanor and attitude.’’ (Internal quota-
tion marks omitted.) State v. Jason B., 111 Conn. App.
359, 363, 958 A.2d 1266 (2008), cert. denied, 290 Conn.
904, 962 A.2d 794 (2009).
The dispositive question before this court is whether
the victim’s testimony provided the jury with a reason-
able basis on which it could conclude that the state
proved beyond a reasonable doubt each of the elements
of § 53a-95 (a) and, thus, provided the jury with a suffi-
cient basis on which it could find the defendant guilty
of that charge. See State v. Victor C., supra, 145 Conn.
App. 61 (‘‘the jury may find a defendant guilty based
solely on the testimony of one witness’’). At trial, the
victim testified that during the course of her encounter
with the defendant on February 14, she repeatedly
asked him to leave her house and repeatedly refused
his requests for sexual intercourse. Once their argument
moved to her bedroom, the defendant pulled out a knife,
told her, ‘‘stop acting up,’’ and asked her to perform
oral sex. When she continued to refuse, he grabbed her
by the hair and threw her onto her bed. Thereafter,
the victim submitted to performing oral sex. When her
crying upset the defendant, however, he picked her up
and pinned her on the bed by her arms so that he could
penetrate her vaginally from behind, and he continued
to hold her on the bed even after she asked him to stop.
Viewing this testimony as we must, in a light most
favorable to sustaining the jury’s verdict, we conclude
that the jury reasonably could have found beyond a
reasonable doubt that the defendant intentionally and
unlawfully restricted the victim’s movements in such a
manner as to interfere substantially with her liberty.
Cf. State v. Rice, 167 Conn. App. 615, 621–22, 142 A.3d
1267 (defendant, while trying to determine whether vic-
tim stole his bag, briefly held victim’s hand, blocked
her egress from restroom, and discouraged her from
calling for help), cert. denied, 323 Conn. 932, 150 A.3d
232 (2016); State v. Jason B., supra, 111 Conn. App. 366(defendant grabbed victim her by arm and pulled her
back into car as well as held his hand over her face to
prevent her from breathing, pinned her arm behind her
head, and climbed on top of her against her will); State
v. Pauling, 102 Conn. App. 556, 565–66, 925 A.2d 1200(defendant slapped victim, struggled with her, grabbed
her by throat, and threw her onto bed), cert. denied,
284 Conn. 924, 933 A.2d 727 (2007); State v. Luster, 48
Conn. App. 872, 880–81, 713 A.2d 277 (elderly victim
struggled with and resisted defendant, who was on top
of her and using force to keep her in bed), cert. denied,
246 Conn. 901, 717 A.2d 239 (1998). Accordingly, there
was sufficient evidence to convict the defendant of
unlawful restraint in the first degree.
II
We next address the defendant’s claim that the court
abused its discretion by denying his ‘‘motion to recon-
sider [his] oral motion for recusal.’’ The state responds
that the defendant’s claim is unreviewable because he
failed to provide an adequate record for review. We
agree with the state.
The following additional facts are relevant to this
claim. On December 1, 2014, the defendant orally asked
the court to recuse itself because the court had presided
over his violation of probation hearing one year earlier
and had found him to be in violation of his probation.
That same day, the court orally denied the defendant’s
motion. On December 5, 2014, three days before the
commencement of trial, the defendant filed a written
motion to reconsider his oral motion for recusal
(motion for reconsideration). On December 8, 2014, the
court, without hearing further from either party, stated
that it had granted the defendant’s motion for reconsid-
eration, reconsidered the issue, and denied the relief
requested therein for the same reasons articulated in
its December 1, 2014 oral ruling, which the court then
briefly summarized.6
Practice Book § 1-23 provides: ‘‘A motion to disqualify
a judicial authority shall be in writing and shall be
accompanied by an affidavit setting forth the facts relied
upon to show the grounds for disqualification and a
certificate of the counsel of record that the motion is
made in good faith. The motion shall be filed no less
than ten days before the time the case is called for trial
or hearing, unless good cause is shown for failure to
file within such time.’’
We have previously held that ‘‘Practice Book § 1-23
creates a mandatory procedure to be followed by any
party seeking to recuse a judge . . . and, if a party fails
to follow such procedures, the record is deemed to be
inadequate for our review because they are a condition
precedent to a hearing on a judge’s disqualification.
. . . Further, [r]epresentations made by counsel are
not evidence in the record upon which we can rely in
our review of the judge’s conduct. . . . The lack of a
recusal hearing leaves the record bereft of any factual
basis upon which we may base our review.’’ (Citations
omitted; internal quotation marks omitted.) Olson v.
Olson, 71 Conn. App. 826, 830, 804 A.2d 851 (2002);
accord State v. Teel, 42 Conn. App. 500, 506, 681 A.2d
974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996);
State v. Weber, 6 Conn. App. 407, 412–13, 505 A.2d 1266,
cert. denied, 199 Conn. 810, 508 A.2d 771 (1986).
We conclude that the defendant has failed to provide
an adequate record for review because he failed to
follow the procedures in Practice Book § 1-23. Although
the defendant filed a written motion for reconsideration
and a certificate of good faith, he failed to provide ‘‘an
affidavit setting forth the facts relied upon to show
the grounds for disqualification’’ or good cause for his
failure to file his motion ‘‘ten days before the time the
case is called for trial or hearing . . . .’’ Practice Book
§ 1-23. In addition, the defendant has not provided this
court with the transcript from the December 1, 2014
hearing. See footnote 4 of this opinion.7 Because the
court expressly relied on its December 1, 2014 oral
ruling when denying the defendant’s motion for recon-
sideration, it is impossible for this court to review the
defendant’s claim that the court abused its discretion
by not recusing itself without knowing the full factual
and legal basis for the court’s December 1, 2014 ruling.
See State v. Ruscoe, 119 Conn. App. 834, 841, 989 A.2d
667 (‘‘[a] lack of pertinent factual findings and legal
conclusions will render a record inadequate’’ [internal
quotation marks omitted]), cert. denied, 296 Conn. 903,
992 A.2d 330 (2010).
Accordingly, we decline to review the defendant’s
claim because the record is inadequate for review.
III
The defendant’s final claim is that the prosecutor
committed certain improprieties during closing argu-
ment and thereby deprived him of his constitutional
right to a fair trial. In particular, the defendant claims
that during rebuttal argument the prosecutor improp-
erly (1) appealed to the emotions, passions, and preju-
dices of the jury, (2) asked the jury to identify with the
victim, and (3) referred to a document not in evidence.8
The state responds that the defendant’s claims are inad-
equately briefed or, alternatively, that they fail on the
merits. Although the defendant’s claims of prosecu-
torial impropriety are adequately briefed for appellate
review, we conclude that he has failed to establish that
the prosecutor committed any improprieties during
closing argument. Accordingly, we reject the defen-
dant’s claims.
We review claims of prosecutorial impropriety under
a two step analytical process. ‘‘The two steps are sepa-
rate and distinct. . . . We first examine whether prose-
cutorial 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 fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry.’’ (Citations
omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978(2007). ‘‘The defendant bears the burden of satisfying
both of these analytical steps.’’ State v. O’Brien-Veader,
318 Conn. 514, 524, 122 A.3d 555 (2015).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . [B]ecause closing arguments often have a
rough and tumble quality about them, some leeway
must be afforded to the advocates in offering arguments
to the jury in final argument. [I]n addressing the jury,
[c]ounsel must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line,
and something must be allowed for the zeal of counsel
in the heat of argument.’’ (Internal quotation marks
omitted.) State v. Elias V., 168 Conn. App. 321, 347,
147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d
386 (2016).
A
The defendant first claims that the prosecutor
improperly appealed to the jury’s emotions and improp-
erly asked the jury to identify with the victim when she
argued: ‘‘It’s a coping mechanism. You may not have
done it. I certainly would never have done it, but that’s
here.’’ The state responds that this remark, when viewed
in context, was a proper counterargument to the defen-
dant’s suggestion that the defendant and the victim were
engaged in a consensual sexual relationship. We agree
with the state.
Our Supreme Court ‘‘has recognized on numerous
occasions 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 [jurors’] 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 irrele-
vant factors which are likely to skew that appraisal.’’
(Internal quotation marks omitted.) State v. Long, 293
Conn. 31, 54, 975 A.2d 660 (2009). An improper appeal
to the jurors’ emotions can take the form of ‘‘a plea for
sympathy for the victim . . . .’’ Id., 59.
During closing argument in the present case, defense
counsel highlighted the victim’s testimony that ‘‘all the
way up until February 14, 2013, she was in a consensual
sexual relationship with [the defendant].’’ In response,
during rebuttal argument, the prosecutor made the fol-
lowing remarks: ‘‘[The defendant] claims they had a
consensual sexual relationship prior to this. You use
your own judgment. Do you think it’s consensual when
someone is repeatedly abusing you verbally, physically,
yelling at you, who you sleeping with, who you sleeping
with when the whole time they’re not boyfriend and
girlfriend anymore. He’s got a girlfriend. He has a child.
And he repeatedly comes over and harps on this over
and over and over again. Who you sleeping with? Who
you sleeping with? Just tell me the truth. The same
thing, and then he said, well, if you’re not sleeping with
anybody, then you could sleep with me. She just gives
in. That’s not consensual sex, ladies and gentlemen.
She told you the reasons she gave in was just to [get]
rid [of] him. And every time she did it, he left. That was
her way of coping. It’s a coping mechanism. You may
not have done it. I certainly would never have done
it, but that’s here. That’s a woman who’s been in this
relationship for seven years. It’s her coping mecha-
nism.’’ (Emphasis added.)
The defendant argues that the emphasized remarks
by the prosecutor improperly suggested to the jury that
the victim’s prior sexual relationship with the defendant
was ‘‘something other than consensual.’’ The defendant
contends that ‘‘[t]his manner of speaking to the jury is
clearly for the sole purpose of evoking sympathy for
the [victim] when she consented to sexual intercourse
in the past, and evoking outrage at the [d]efendant for
putting the complainant in a position of deciding
whether or not to have consensual intercourse with
him.’’ We disagree.
The prosecutor’s ‘‘coping mechanism’’ remark, when
read in context, was not designed to encourage the jury
to decide the case on the basis of sympathy for the
victim rather than a rational appraisal of the evidence
presented at trial. To the contrary, the purpose of the
prosecutor’s remark was to remind the jurors that they
must review the evidence objectively and from the per-
spective of a reasonable person, rather than on the
basis of their personal dislikes, opinions, or prejudices
about the victim’s actions. That is, the prosecutor was
reminding the jurors that they must consider the evi-
dence presented at trial concerning the victim’s rela-
tionship and history with the defendant and then decide
whether, on the basis of that evidence and their own
common sense, it was reasonable to infer that the victim
consented to sexual intercourse with the defendant on
February 14, 2013.
We conclude therefore that the prosecutor’s coping
mechanism remark did not appeal improperly to the
jurors’ emotions or exhort them to decide the case on
anything other than the evidence presented to them.
B
The defendant also claims that another portion of the
prosecutor’s remarks violates the prohibition against
‘‘golden rule’’ arguments.9 The state responds that the
prosecutor’s remarks ‘‘did not violate the ‘golden rule’
because they did not ask the jury to evaluate the case
on something other than the evidence, such as emotion,
passion, bias or sympathy.’’ We agree with the state.
‘‘[A] golden rule argument is one that urges jurors to
put themselves in a particular party’s place . . . or into
a particular party’s shoes. . . . Such arguments are
improper because they encourage the jury to depart
from neutrality and to decide the case on the basis of
personal interest and bias rather than on the evidence.
. . . They have also been equated to a request for sym-
pathy. . . . The danger of these types of arguments
lies in their [tendency] to pressure the jury to decide
the issue of guilt or innocence on considerations apart
from the evidence of the defendant’s culpability.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Long, supra, 293 Conn. 53–54.
During the victim’s testimony, an issue arose con-
cerning whether the victim’s testimony about the timing
of the February 14 incident was inconsistent with her
statement to the police. In particular, the victim testified
that the February 14 incident occurred sometime after
she put her grandson down for his nap at 10 a.m. During
cross-examination, defense counsel attempted to
impeach the victim’s testimony by highlighting the fact
that in her police statement she reported that the inci-
dent occurred in the ‘‘mid-afternoon,’’ not at 10 a.m.
The victim responded that she told the detective who
took her statement that the incident occurred sometime
between ‘‘[m]id to afternoon,’’ which she understood
to mean between 10 a.m., when she put her grandson
down for his nap, and 2:30 p.m., when her daughter
returned home from school. Defense counsel thereafter
suggested that the victim changed the time frame of
the February 14 incident to earlier in the day when she
learned that the defendant claimed that he was picking
up his mother from the hospital in the mid-afternoon.
During closing argument, defense counsel argued in
relevant part that the victim was not credible because
of this discrepancy between her testimony and her
statement to the police about the timing of the February
14 incident. The prosecutor responded first by
reviewing the victim’s testimony concerning the timing
of the February 14 incident, including the circum-
stances surrounding her statement to the police and
her discussions with the prosecutor in preparation for
trial. The prosecutor then made the following remarks:
‘‘When someone comes into your house, and you know
what’s happened in the past with this man, you know
what he’s doing, he’s screaming at you, he’s yelling at
you, he’s telling you you’re going to have sex, he’s
forcing you to give oral sex, he holds you down on the
bed, he makes you have vaginal intercourse with him,
while he’s holding you down, while you’re crying,
while you’re screaming, while your twenty-two month
old grandson is in that room crying and screaming,
do you stop and look at the clock? Do you make note
of it while that trauma is happening to you? Absolutely
not. It’s totally unreasonable to have this woman note
exactly what time it is. And it’s not for another seven
months does she tell the police. And she’s narrowing
it down as best she can. But who’s going to remember
exactly what time that happened and what time it
ended? But look at the reverse, this defendant knows
where he is all day long. All day long.’’ (Emphasis
added.)
The defendant argues that the emphasized remarks
were improper golden rule arguments. In particular, the
defendant argues that these remarks were an ‘‘attempt
to have the [jurors] picture themselves in a bleak situa-
tion where they are being verbally, physically, and sexu-
ally assaulted by the [d]efendant,’’ and then decide the
case based on their emotional response.’’ We disagree.
‘‘[N]ot all arguments that ask jurors to place them-
selves in a particular party’s situation implicate the
prohibition on golden rule argument.’’ State v. Devito,
159 Conn. App. 560, 579, 124 A.3d 14, cert. denied,
319 Conn. 947, 125 A.3d 1012 (2015). ‘‘The animating
principle behind the prohibition on golden rule argu-
ments is that jurors should be encouraged to decide
cases on the basis of the facts as they find them, and
reasonable inferences drawn from those facts, rather
than by any incitement to act out of passion or sympathy
for or against any party.’’ State v. Long, supra, 293 Conn.
57–58. Accordingly, our courts have repeatedly held
that a prosecutor does not violate the golden rule by
using the pronoun ‘‘you’’ or by asking the jurors to
place themselves in the position of the witness if the
prosecutor is using these rhetorical devices to ask the
jury to assess the evidence from the standpoint of a
reasonable person or to employ common sense in evalu-
ating the evidence. See, e.g., State v. Stephen J. R., 309
Conn. 586, 607, 72 A.3d 379 (2013); State v. Long, supra,55–58; State v. Bell, 283 Conn. 748, 773–74, 931 A.2d
198 (2007); State v. Devito, supra, 578–80; State v.
Ovechka, 118 Conn. App. 733, 745–46, 984 A.2d 796,
cert. denied, 295 Conn. 905, 989 A.2d 120 (2010).
In the present case, the prosecutor’s remarks on
rebuttal were made in response to defense counsel’s
argument that the victim was not credible because she
was inconsistent concerning the timing of the February
14 incident. The purpose of the prosecutor’s remark
was to encourage the jury to employ its common sense
when determining whether, in light of the evidence pre-
sented at trial, it was reasonable for the victim to be
imprecise or inconsistent concerning what time of day
that the February 14 incident occurred. The defendant
has failed to establish that these remarks, when read in
context, appealed to the jurors’ emotions or otherwise
encouraged them to decide the case on something
beyond the evidence presented at trial.
We conclude therefore that the prosecutor’s remarks
did not constitute an improper golden rule argument.
C
Finally, the defendant claims that the prosecutor
improperly referred to the victim’s police statement,
which was not in evidence, and improperly tapped on
and picked up the victim’s police statement while refer-
ring to it. We disagree.
As we previously stated, an issue arose at trial con-
cerning whether the victim’s testimony about the timing
of the February 14 incident was inconsistent with the
statement she gave to the police. See part III B of this
opinion. At trial, Detective Cheryl Gogins testified that
she took the victim’s statements concerning the Febru-
ary 14 and February 28 incidents. On cross-examination,
Gogins testified that the victim reported that the Febru-
ary 14 incident occurred during the ‘‘mid-afternoon’’
and that she accurately memorialized that in the victim’s
statement. On redirect examination, Gogins explained
that the victim ‘‘gave a fraction of a period of time, and
that’s how [the term] mid-afternoon came [about]. It
was around a fraction of that timing.’’ In particular,
Gogins recalled that when she was trying to pinpoint
the timing of the February 14 incident with the victim,
‘‘[the victim] stat[ed] that she had laid down her grand-
son to take a nap.’’
During her rebuttal argument, the prosecutor, when
addressing the victim’s purported inconsistency con-
cerning the timing of the February 14 incident, made
the following remark: ‘‘And remember the testimony of
Detective Gogins when she was questioned with respect
to the time because counsel made a big deal about the
mid to afternoon. Okay. What does she say right after
that? It happened right after I put my grandson down
for a nap. That’s what she said in her statement to
Detective Gogins, completely consistent with what I
asked her. I just narrowed it down.’’ (Emphasis added.)
At the conclusion of closing arguments, the defendant
raised five objections to the prosecutor’s rebuttal argu-
ment, including an objection to the fact that the prose-
cutor purportedly tapped on and picked up the victim’s
police statement during these remarks. In response to
the defendant’s objection, however, the prosecutor did
not state whether the document she picked up was her
notes,10 the victim’s statement, or another document,
and the court did not inquire into the nature of the
document.11
On appeal, the defendant argues that the prosecutor
improperly argued facts not in evidence by referencing
and picking up the victim’s police statement during
closing argument. We disagree. First, it is axiomatic
that in closing argument parties are permitted to rely
on the evidence presented at trial. See State v. Arline,
223 Conn. 52, 58, 612 A.2d 755 (1992) (‘‘[c]ounsel may
comment upon facts properly in evidence and upon
reasonable inferences to be drawn from them’’ [empha-
sis omitted; internal quotation marks omitted]). In the
present case, Gogins testified that the victim told her
that the February 14 incident occurred after she put her
grandson down for a nap. Accordingly, the prosecutor’s
remark, which expressly referenced Gogins’ testimony,
was not improper.
Second, the record is unclear as to what, if anything,
the prosecutor picked up during her remarks about
Gogins’ testimony. When a defendant raises a claim of
prosecutorial impropriety on appeal, the burden is on
the defendant to prove first that the prosecutor commit-
ted an impropriety and second that the impropriety
deprived him of a fair trial. State v. Felix R., 319 Conn.
1, 8–9, 124 A.3d 871 (2015). As the record before us is
ambiguous as to what, if anything, the prosecutor
picked up during her remarks about Gogins’ testimony,
we conclude that the defendant failed to meet his bur-
den of proving that the prosecutor improperly showed
a document not in evidence to the jury during closing
argument. See id., 9 (‘‘when a prosecutor’s potentially
improper remarks are ambiguous, a court should not
lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning or that a
jury, sitting through a lengthy exhortation, will draw
that meaning from the plethora of less damaging inter-
pretations’’ [internal quotation marks omitted]).
The judgment is affirmed.
In this opinion the other judges concurred.
1
In furtherance of our policy of protecting the privacy interests of the
subject of a criminal protective order, we refer to the protected person in
this case only as the victim.
2
In November, 2013, the state entered a nolle prosequi in the victim’s
case after a witness admitted to filing a false incident report and pleaded
guilty to making a false statement.
3
The victim has two daughters and two grandchildren. During the period
in question, one of the victim’s daughters was receiving chemotherapy treat-
ment for cancer. To help her daughter, the victim often cared for her daugh-
ter’s son.
4
The defendant also challenges his conviction of unlawful restraint in the
first degree on the grounds that it is factually and legally inconsistent with
his acquittal of the charges of sexual assault in the first degree. Claims
of factual and legal inconsistency between a conviction and an acquittal,
however, are not reviewable unless there is evidence that the jury reached
an inconsistent verdict as the result of juror misconduct. State v. Arroyo,
292 Conn. 558, 585 n.22, 586, 973 A.2d 1254 (2009), cert. denied, 559 U.S.
911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010). The defendant has neither
argued nor presented any evidence that the jury reached an inconsistent
verdict as a result of juror misconduct. Accordingly, we decline to review
this claim.
5
The defendant failed to preserve his claim at trial and seeks review
pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) .
As we have previously stated, however, ‘‘[a]ny defendant found guilty on
the basis of insufficient evidence has been deprived of a constitutional
right, and would therefore necessarily meet the four prongs of Golding.
Accordingly, we conclude that no practical reason exists to engage in a
Golding analysis of a sufficiency of the evidence claim and, thus, review the
challenge as we do any other properly preserved claim.’’ (Internal quotation
marks omitted.) State v. Pettigrew, 124 Conn. App. 9, 29–30 n.13, 3 A.3d
6In particular, the court stated: ‘‘The cases that the court recited at the
time [the defendant’s oral motion to recuse] was raised I think still apply
in this particular case. As I said . . . on the day that was raised, the mere
fact that the court has ruled adversely on a proceeding does not necessarily
mean that the court should recuse itself. In this particular case, the court
heard a violation of probation here last year, found the defendant in violation.
And in this particular case, it’s an entirely different matter. It’s . . . a sexual
assault allegation that’s going to be tried to a jury. This court will not be
making findings of fact. It’s the jury that’s going to be finding those facts.
The mere fact that a judge has previously ruled adversely does not necessar-
ily recuse the judge. And for that reason, the court denied the . . . relief
that was asked for . . . .’’
7
The defendant did not order the transcript for the December 1, 2014
hearing. Initially, the defendant maintained that the December 1 transcript
was not necessary for the present appeal because he was challenging only
the court’s denial of his motion for reconsideration, but on February 17,
2017, after oral argument before this court, the defendant filed a motion
requesting permission to file an additional transcript. The state objected,
arguing that ‘‘filing of an additional transcript at this juncture changes the
entire nature of the claims and arguments presented on appeal.’’ On February
23, 2017, this court denied the defendant’s motion.
In addition, the defendant did not order the transcripts of his violation
of probation hearing on November 20 and 22, 2013 nor did he include these
transcripts in his appendix to his opening brief. The state observed in its
brief that although the defendant alluded to events that transpired at the
November 22 hearing in his motion for reconsideration and his opening
brief, the transcript from that hearing was not before the court on December
1 or 8, 2014, and, therefore, the transcript is not part of the record on appeal.
The defendant then appended to his reply brief the redacted transcripts of
his violation of probation hearing and asked this court to take judicial notice
of them. Since filing his reply brief, the defendant has not ordered or filed
these transcripts pursuant to Practice Book § 63-8.
8
We note that following closing argument, defense counsel objected to
some, but not all, of the improprieties claimed on appeal. The defendant’s
unpreserved claims are nevertheless reviewable. ‘‘We previously have recog-
nized that a claim of prosecutorial impropriety, even in the absence of an
objection, has constitutional implications and requires a due process analysis
. . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Gibson,
302 Conn. 653, 658–59, 31 A.3d 346 (2011).
9
To the extent that the defendant also claims that these remarks consti-
tuted an improper appeal to the jurors’ emotions, we need not separately
analyze the defendant’s claim under both the prohibition against golden rule
arguments and the prohibition against appealing to jurors’ emotions because
‘‘the prohibition on golden rule arguments is merely a subset of this type
of prosecutorial impropriety . . . .’’ State v. Long, 293 Conn. 56 n.21.
10
We note that the prosecutor asked the jury during her opening argument
to ‘‘excuse me for having to read a little bit of this because a lot of the
evidence that came out today, I just had to write down quickly.’’
11
The prosecutor misunderstood the nature of the defendant’s objection
at trial. She understood the defendant to be challenging the substance of
her remarks rather than the act of lifting up a document, and, as a result,
her response to this objection focused on the fact that Gogins testified that
the victim told her the February 14 incident occurred after she put her
grandson down for a nap.
The defendant in his brief suggests that the court found that the prosecutor
had picked up a document not in evidence during closing argument and
concluded that this conduct was improper. We disagree with the defendant’s
interpretation of the court’s remarks. After the prosecutor concluded her
argument, the court observed that it understood defense counsel to be
objecting to the act of picking up a document during closing argument, not
the substance of her remarks about Gogins’ testimony, and defense counsel
agreed. The court then stated that ‘‘the statement is not in evidence. . . .
I’ll have to address that’’ in the jury instructions and recessed proceedings
for the day. The following trial day, the court informed the parties that it
had considered the defendant’s objections further and concluded that the
prosecutor’s conduct was ‘‘within the limits and the bounds of the prosecu-
torial closing argument.’’