State v. Michael T. ( 2019 )

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STATE OF CONNECTICUT v. MICHAEL T.*
(AC 41053)
DiPentima, C. J., and Devlin and Sullivan, Js.
Syllabus
Convicted, after a jury trial, of five counts of the crime of risk of injury to
a child, two counts of the crime of unlawful restraint in the first degree,
and of the crimes of assault in the first degree, criminal attempt to
commit assault in the first degree, and assault in the second degree,
the defendant appealed to this court. The defendant lived in an apartment
with N, his girlfriend, and her five daughters, including the victims, J
and D. The defendant, after an argument with N, began to yell at the
victims for disobeying a rule about hanging out of their bedroom window.
The defendant then grabbed J, lifted her off the ground and carried her
to the stove in the kitchen, where he ignited the gas burner and placed
J’s right hand over the flame. The defendant dropped J, but he then
picked up D and carried her to the stove, where he placed both of her
hands on top of the flame for up to one minute. Subsequently, D received
medical treatment at a hospital for her severe burns and underwent
several surgical procedures, including the amputation of several finger-
tips. Forensic interviews of the victims were recorded and, in those
recordings, the victims identified the defendant as the individual who
had burned their hands on the open flame from the stove burner. Prior
to trial, the defendant filed a motion in limine to preclude the state from
entering video recordings of the forensic interviews into evidence, which
the trial court denied on the first day of trial. At the close of the state’s
case, and again at the close of the defendant’s case, the defendant moved
for a judgment of acquittal with respect to two counts that charged him
with risk of injury to a child, and the court denied those motions.
Following the jury’s verdicts, the defendant filed a motion for a new
trial on the ground that the admission into evidence of the forensic
interviews necessitated a new trial, which the court denied prior to
sentencing. Held:
1. The defendant’s unpreserved claim that the trial court abused its discretion
by admitting the forensic interviews into evidence because they failed
to satisfy the requirements of the medical diagnosis and treatment excep-
tion to the rule against hearsay, as established in State v. Griswold (160
Conn. App. 528), was not reviewable; the defendant’s appellate argument
differed from what was presented to the trial court, defense counsel
having claimed before the court that Griswold, a case where the defen-
dant sexually abused the victims, was inapplicable to the present case
and that the admission of a forensic interview pursuant to the medical
treatment and diagnosis exception required evidence of a sexual assault.
2. The defendant could not prevail on his claim that the forensic interviews
of the victims were not relevant: the relevancy argument raised by
defense counsel to the trial court, which focused on the connection
between forensic interviews, cases involving sexual assault and the
constancy of accusation doctrine, contradicted existing precedent and
was wholly without merit because the medical diagnosis and treatment
exception to the rule against hearsay has no direct connection to the
constancy of accusation doctrine and is not limited to sexual assault
cases; moreover, the defendant’s claim on appeal that the recordings
of the forensic interviews failed to meet the standard of the applicable
provision (§ 4-1) of the Connecticut Code of Evidence in that they did
not tend to make the existence of any material fact more or less probable
than it would be without such evidence, was unavailing, as, during the
forensic interviews, the victims identified the defendant as the person
who had burned their hands and discussed the extent of the injuries
they suffered, which satisfied the low hurdle of relevance and had
obvious value to the state’s case.
3. The defendant’s claim that the prejudicial impact of the forensic interviews
of the victims outweighed their probative value and that those interviews
were cumulative and, therefore, should not have been admitted into
evidence, was not reviewable; the defendant failed to brief that claim
adequately, as he addressed the claim in a single sentence and failed
to cite any authority or to present any reasoning to support his claim
regarding the prejudicial impact or cumulative nature of the forensic
interviews.
4. The defendant could not prevail on his claim that the trial court improperly
denied his motions for a judgment of acquittal with respect to two
counts of risk of injury to a child, which was based on his claim that
neither J nor D were placed at risk of injury to their physical or mental
health because neither victim actually witnessed the burning of the
other; it was undisputed that D was present in the apartment when the
defendant burned J and that J was in the apartment when he burned
D, the jury reasonably could have concluded, on the basis of N’s testi-
mony and the photographs admitted into evidence that depicted the
layout of the apartment, that the defendant created a situation that was
likely to result in injury to D’s mental health as a result of her witnessing
the burning of J, and although there was conflicting evidence as to
whether J directly observed the burning of D, evidence is not insufficient
because it is conflicting or inconsistent, as it is the jury’s exclusive
province to weigh the conflicting evidence and to determine the credibil-
ity of witnesses, and the jury can decide what part of a witness’ testimony
to accept or reject.
5. The defendant could not prevail on his claim that the trial court made a
constitutional and evidentiary error when it improperly precluded him
from presenting evidence of third-party culpability by not allowing him
to testify about N’s prior statement to him that she had burned the
victims, which was based on his claim that the court improperly deter-
mined that the statement against penal interest exception to the rule
against hearsay did not apply to N’s alleged admission to the defendant
that she had burned the victims: the defendant had to establish the
unavailability of N to use the statement against penal interest hearsay
exception, and although the defendant claimed that N was unavailable
because she was reluctant at trial to make a statement against her penal
interest, there were pauses in her testimony, her version of the events
was opposite to that of the defendant, her testimony would not be
favorable to the defendant, and she had demonstrated a willingness to
lie to protect herself, those contentions, unsupported by case law or
other legal authority, failed to acknowledge that N testified during the
defendant’s criminal trial and were not encompassed within the five
situations of unavailability previously set forth by our Supreme Court;
accordingly, the trial court did not abuse its discretion in ruling that
the statement against penal interest exception to the rule against hearsay
did not apply, and, therefore, the defendant could not prevail on his
evidentiary or constitutional claims.
Argued September 9—officially released December 3, 2019
Procedural History
Substitute information, in the first case, charging the
defendant with three counts of the crime of risk of
injury to a child, and with the crimes of assault in the
first degree and unlawful restraint in the first degree,
and substitute information, in the second case, charging
the defendant with three counts of the crime of risk of
injury to a child, and with the crimes of criminal attempt
to commit assault in the first degree, assault in the
second degree, and unlawful restraint in the first degree,
brought to the Superior Court in the judicial district of
New Haven, where the cases were consolidated and
tried to the jury before B. Fischer, J.; thereafter, the
court denied the defendant’s motion to preclude certain
evidence; subsequently, the court denied the defen-
dant’s motions for a judgment of acquittal as to two
counts of risk of injury to a child; verdicts of guilty of
five counts of risk of injury to a child, two counts of
unlawful restraint in the first degree, and one count
each of assault in the first degree, criminal attempt to
commit assault in the first degree, and assault in the
second degree; thereafter, the court denied the defen-
dant’s motion for a new trial, and rendered judgments in
accordance with the verdicts, from which the defendant
appealed to this court. Affirmed.
Judie Marshall, with whom, on the brief, was Freesia
Singngam, for the appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, Maxine Wilensky, senior assistant state’s
attorney, and Karen A. Roberg, assistant state’s attor-
ney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Michael T., appeals
from the judgments of conviction,1 rendered after a jury
trial, of assault in the first degree in violation of General
Statutes § 53a-59 (a) (2), five counts of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(1), two counts of unlawful restraint in the first degree
in violation of General Statutes § 53a-95 (a), criminal
attempt to commit assault in the first degree in violation
of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (2),
and assault in the second degree in violation of General
Statutes § 53a-60 (a) (2). On appeal, the defendant
claims that the trial court (1) abused its discretion by
admitting into evidence the forensic interviews of the
two minor victims, (2) improperly denied his motions
for a judgment of acquittal with respect to two counts
of risk of injury to a child and (3) improperly precluded
the defendant from presenting evidence of third-party
culpability. We disagree and, accordingly, affirm the
judgments of conviction.
The jury reasonably could have found the following
facts. In August, 2015, the defendant lived in a New
Haven apartment with N, his girlfriend,2 and her five
daughters, including eight year old J and four year old
D. J and D shared a bedroom with their sibling, S. In
the early afternoon of August 16, 2015, the defendant, N
and her five children, one of whom was the defendant’s
child, were in the apartment when a neighbor came to
the door. N spoke to the neighbor and their conversa-
tion escalated into an argument over the actions of J,
S and D. After this interaction with the neighbor, N
went into the bedroom and observed J and D ‘‘hanging
out of the window.’’ Previously, the defendant had
placed screws in the window frame to prevent the chil-
dren from engaging in this behavior. Upon seeing J
and D hanging out of the window, N ‘‘yelled’’ and then
‘‘spanked’’ them each one time with her hand. N then
sent the two girls into the living room.
The defendant, after an argument with N, subse-
quently came out of his bedroom and ordered J, S and
D to exit their room. After the three girls came out of
their room, the defendant began to yell at them for
disobeying the rule about hanging out of their window.
He then grabbed J, lifted her off the ground and carried
her to the stove in the kitchen. The defendant ignited
the front gas burner and placed J’s right hand over the
flame. J, in pain and crying out, began to kick and, as
a result, the defendant dropped her.
The defendant then picked up D and carried her to
the stove, where he placed both of her hands ‘‘on top
of the flame.’’ D yelled and screamed as the defendant
kept her hands in the fire for up to one minute. After-
ward, the defendant, a former emergency medical tech-
nician, instructed N to submerge D’s hands into the
bathtub filled with warm water. He further instructed
N to go to a nearby pharmacy for medical supplies to
treat D’s burns.
By the time N returned to the apartment from the
pharmacy, D had white blisters on her hands, and the
defendant indicated that she needed to go to the hospi-
tal due to third-degree burns. The defendant spoke to
his mother to obtain transportation to the hospital. He
then instructed N, J, S and D to falsely state that D’s
burns had resulted from an accident. The defendant, N
and D went to the hospital, while the other girls stayed
with the defendant’s mother.
As a result of her burns, D screamed and cried during
the car ride to the Saint Raphael Campus of the Yale
New Haven Hospital. At this point, N observed that D’s
hands appeared white and ‘‘bubbly.’’ Upon arriving at
the emergency department, D received immediate treat-
ment from the medical staff. Mark Shapiro, a physician
and the head of the emergency department, observed
pronounced burns on both sides of D’s hands. Although
D’s left hand sustained greater damage, Shapiro deter-
mined that both hands exhibited second-degree and
third-degree burns.3 He also described the charring
under D’s fingernails as indicative of a fourth-degree
burn.4 After evaluating D and prescribing pain medica-
tion, Shapiro arranged for her transfer to the burn treat-
ment unit at Bridgeport Hospital.5 D received medical
treatment at Bridgeport Hospital for approximately six
weeks, undergoing several surgical procedures, includ-
ing the amputation of several fingertips.
In the early morning hours of August 17, 2015, Khris-
tine Cuddy, a New Haven police detective, went to
Bridgeport Hospital to investigate the circumstances of
D’s injuries. N provided Cuddy with consent to search
the New Haven apartment. Cuddy proceeded to the
apartment, arriving at approximately 7 a.m. After fur-
ther investigation, Cuddy interviewed J. Cuddy
observed a blistered burn on the bottom portion of J’s
right hand. Later that day, the Department of Children
and Families invoked a ninety-six hour hold6 on the five
children and obtained an order of temporary custody
on August 21, 2015.7
Monica Vidro, a licensed clinical social worker
employed by the Yale Child Sexual Abuse Clinic, con-
ducted forensic interviews of J and D on August 28,
2015, and October 13, 2015, respectively. In these
recordings, J and D identified the defendant as the indi-
vidual who had burned their hands on the open flame
from the stove burner. Afterward, Vidro recommended
that both children receive mental health treatment,
which they did.
The state charged the defendant in two long form
informations. The first information set forth the follow-
ing alleged crimes with respect to J: criminal attempt
to commit assault in the first degree in violation of
§§ 53a-49 (a) (2) and 53a-59 (a) (2); assault in the second
degree in violation of § 53a-60 (a) (2); three counts of
risk of injury to a child in violation of § 53-21 (a) (1)
by placing J’s hand over an open flame, failing to seek
medical attention for J and causing J to witness the
burning of D; and unlawful restraint in the first degree
in violation of § 53a-95 (a). The second information set
forth the following alleged crimes with respect to D:
assault in the first degree in violation of § 53a-59 (a)
(2); three counts of risk of injury to a child in violation
of § 53-21 (a) (1) by placing D’s hand over an open
flame, denying D medical attention and causing D to
witness the burning of J; and unlawful restraint in the
first degree in violation of § 53a-95 (a).
At the conclusion of the trial, held in July, 2017, the
jury found the defendant guilty on all counts, with the
exception of the count charging risk of injury to a child
by failing to seek medical attention for J. The court
rendered judgments of conviction in accordance with
the verdicts and imposed a total effective sentence of
thirty-eight years of incarceration, execution suspended
after twenty-eight years, and five years of probation.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The defendant first claims that the trial court abused
its discretion by admitting into evidence the forensic
interviews of the two minor victims. Specifically, he
argues that the forensic interviews of J and D (1) did
not meet the requirements of the medical diagnosis and
treatment exception to the rule against hearsay, (2)
were irrelevant and (3) were more prejudicial than pro-
bative and were cumulative. The state counters that
these arguments are unreviewable, meritless or harm-
less. We conclude that the defendant cannot prevail on
this claim.8
The following additional facts and procedural history
are necessary for our discussion. On June 16, 2017, the
defendant filed a motion in limine to preclude the state
from entering video recordings of the forensic inter-
views into evidence. In his motion, the defendant pri-
marily argued that the recordings were irrelevant.9 On
July 6, 2017, the state filed a memorandum of law in
support of admitting the recordings of the forensic inter-
views into evidence.10 Five days later, the defendant
filed a reply, iterating his claim of irrelevance.11
On the first day of trial and outside of the presence
of the jury, the court heard argument on the admissibil-
ity of the forensic interviews. The prosecutor empha-
sized that the interviews satisfied the requirements for
the medical treatment exception to the rule against
hearsay and, thus, were admissible into evidence.
Defense counsel argued that forensic interviews were
admissible only in cases involving a sexual assault. He
further contended that ‘‘the reason [forensic interviews]
usually are allowed in terms of relevance is because
we have this theory of constancy, that a sex assault
victim is going—is not going to—or normally is not
going to say anything. That’s usually the relevance.’’ He
also claimed that the present matter, involving physical
abuse, was distinguishable from State v. Griswold, 160
Conn. App. 528, 127 A.3d 189, cert. denied, 320 Conn.
907, 128 A.3d 952 (2015), a sexual assault case.12 The
prosecutor countered, inter alia, that the existence of
sexual abuse is not a prerequisite for the admissibility
of a forensic interview.
The court issued a preliminary ruling that, subject to
an offer of proof, the forensic interviews of J and D
would be admitted into evidence pursuant to the medi-
cal treatment hearsay exception and the reasoning set
forth in State v. Griswold, supra, 160 Conn. App. 528.
After both J and D had testified, the state called Vidro
as a witness outside the presence of the jury. Vidro
described her educational background, her employ-
ment with the Yale Child Sexual Abuse Clinic and the
purpose of and the manner in which a forensic interview
is conducted.13 Vidro emphasized that the particular
purpose of a forensic interview was to assess any needs
regarding the child’s safety, medical treatment and men-
tal health treatment. Vidro conducted a forensic inter-
view of J and D following a referral due to abuse con-
cerns. Following the interviews, Vidro recommended
that both children continue receiving mental health
treatment at the trauma clinic of the Yale Childhood
Violent Trauma Center.
At the conclusion of the state’s offer of proof, defense
counsel again challenged the relevancy of the
recordings of the forensic interviews of J and D. The
court admitted the recordings into evidence, stating:
‘‘I’m going to stand by my preliminary ruling, and I
do make the following findings regarding the medical
treatment exception: that this court concludes that the
statements are admissible because the purpose of the
interviews, despite being primarily to establish or prove
past events potentially relevant to later criminal prose-
cutions, [was] at least, in part, to determine whether
the victims were in need of medical treatment. That
would include physical and/or mental health. The state-
ments were reasonably pertinent to obtain a medical
diagnosis or treatment, and the interviewers—the inter-
viewer occupied a position within the chain of medical
care. Again, this court follows the reasoning of State
v. Griswold, [supra, 160 Conn. App. 528].’’
Vidro then testified before the jury. She stated her
training, qualifications and general information regard-
ing a forensic interview of a child.14 She noted that
the forensic interview with J occurred in August, 2015,
following a referral due to suspected abuse. The prose-
cutor played a redacted recording of J’s forensic inter-
view for the members of the jury and provided a typed
transcript. During the interview, Vidro informed J that
her job was to speak with children to ensure their safety
and health. Vidro also indicated that a pediatrician and
other individuals were observing the interview from a
nearby room. Following the interview, Vidro recom-
mended that J engage in mental health treatment and
have no contact with the defendant.
Vidro conducted the forensic interview of D in Octo-
ber, 2015,15 as a result of suspected abuse. The prosecu-
tor again provided a transcript to the jury and played
a redacted recording. During the interview, Vidro
informed D that her job was to make sure ‘‘kids are safe
and healthy’’ and that her coworkers, such as physicians
and nurses, would observe the conversation. Vidro sub-
sequently recommended mental health treatment and
that D have no contact with the defendant.
Following the jury’s verdicts, the defendant filed a
motion for a new trial pursuant to Practice Book § 42-53.
He argued, inter alia, that the admission into evidence
of the forensic interviews necessitated a new trial. The
court denied the defendant’s motion for a new trial
prior to sentencing.
A
On appeal, the defendant claims that the court abused
its discretion by admitting the forensic interviews into
evidence. He first contends that the forensic interviews
failed to satisfy the requirements of the medical diagno-
sis and treatment exception to the rule against hearsay
as established in State v. Griswold, supra, 160 Conn.
App. 528, and State v. Estrella J.C., 169 Conn. App.
56, 148 A.3d 594 (2016). The state counters that this
appellate argument differs from what was presented
to the trial court and, thus, is unpreserved and not
reviewable. We agree with the state.
We begin with the applicable legal principles. ‘‘Our
standard of review for evidentiary claims is well settled.
To the extent [that] a trial court’s admission of evidence
is based on an interpretation of the [Connecticut] Code
of Evidence, our standard of review is plenary. For
example, whether a challenged statement properly may
be classified as hearsay and whether a hearsay excep-
tion properly is identified are legal questions demanding
plenary review. . . . We review the trial court’s deci-
sion to admit [or exclude] evidence, if premised on
a correct view of the law, however, for an abuse of
discretion.’’ (Internal quotation marks omitted.) State
v. Taupier, 330 Conn. 149, 181, 193 A.3d 1 (2018), cert.
denied, U.S. , 139 S. Ct. 1188, 203 L. Ed. 2d
202 (2019); see also State v. Miguel C., 305 Conn. 562,
571–72, 46 A.3d 126 (2012).
Hearsay is an out-of-court statement offered for the
truth of the matter asserted and generally is inadmissi-
ble. State v. Burton, 191 Conn. App. 808, 828, 216 A.3d
734, cert. denied, 333 Conn. 927, A.3d (2019);
see also State v. Carrion, 313 Conn. 823, 837, 100 A.3d
361 (2014); see generally Conn. Code Evid. § 8-1 and
Conn. Code Evid. (2009) § 8-2. The rules of evidence,
however, recognize that certain out-of-court statements
warrant an exception to the general rule that hearsay
constitutes inadmissible evidence. State v. Cruz, 260
Conn. 1, 7, 792 A.2d 823 (2002). Section 8-3 (5) of the
Connecticut Code of Evidence provides that ‘‘[a] state-
ment made for purposes of obtaining a medical diagno-
sis or treatment and describing medical history, or past
or present symptoms, pain, or sensations, or the incep-
tion or general character of the cause or external source
thereof, insofar as reasonably pertinent to the medical
diagnosis or treatment’’ is not excluded by the hearsay
rule, even though the declarant is available as a witness.
In State v. Griswold, supra, 160 Conn. App. 528, this
court set forth the relevant legal principles regarding
the medical diagnosis and treatment exception to the
hearsay rule. ‘‘Out-of-court statements made by a
patient to a [medical provider] may be admitted into
evidence if the declarant was seeking medical diagnosis
or treatment, and the statements are reasonably perti-
nent to achieving these ends. . . . The rationale for
excluding from the hearsay rule statements made in
furtherance of obtaining treatment is that we presume
that such statements are inherently reliable because
the patient has an incentive to tell the truth in order to
obtain a proper medical diagnosis and treatment. . . .
The term medical encompasses psychological as well
as somatic illnesses and conditions. . . . Statements
made by a sexual assault complainant to a social worker
may fall within the exception if the social worker is
found to have been acting within the chain of medical
care. . . . Although [t]he medical treatment exception
to the hearsay rule requires that the statements be both
pertinent to treatment and motivated by a desire for
treatment . . . in cases involving juveniles, [we] have
permitted this requirement to be satisfied inferentially.’’
(Citations omitted; internal quotation marks omitted.)
Id., 555–56; see also State v. Abraham, 181 Conn. App.
703, 711, 187 A.3d 445, cert. denied, 329 Conn. 908,
186 A.3d 12 (2018); see generally E. Prescott, Tait’s
Handbook of Connecticut Evidence (6th Ed. 2019)
§ 8.17.2, pp. 566–67.
Before the trial court, defense counsel argued that
the admission of a forensic interview pursuant to the
medical treatment and diagnosis exception required evi-
dence of a sexual assault. Defense counsel concluded
by noting that because the present case involved physi-
cal abuse, Griswold, a case where the defendant sexu-
ally abused the victims, was inapposite.
On appeal, however, the defendant altered his argu-
ment regarding the admission of the forensic inter-
views. Rather than arguing that Griswold was inapplica-
ble to the present case, the defendant contended in his
appellate brief that the state had failed to establish
the necessary elements for application of the medical
diagnosis and treatment hearsay exception, as set forth
in Griswold. Our law does not permit such a tactic.
‘‘It is . . . well established that [a]ppellate review of
evidentiary rulings is ordinarily limited to the specific
legal [ground] raised by . . . trial counsel. . . . To
permit a party to raise a different ground on appeal
than [that] raised during trial would amount to trial by
ambuscade, unfair both to the trial court and to the
opposing party.’’ (Internal quotation marks omitted.)
State v. Rogers, 183 Conn. App. 669, 680, 193 A.3d 612(2018); see also State v. Bennett, 324 Conn. 744, 761,
155 A.3d 188 (2017). Accordingly, we decline to review
the defendant’s argument, raised for the first time on
appeal, that the state failed to establish that the forensic
interviews in this case should have been admitted into
evidence pursuant to Griswold.16
B
The defendant next argues that the forensic inter-
views of J and D were not relevant. Initially, he notes
that the court did not rule on the relevancy objection
made in his motion in limine and at the proceedings
on July 19 and 24, 2017. The defendant also asserts, in
a general manner, that the recordings of the forensic
interviews failed to satisfy § 4-1 of the Connecticut Code
of Evidence. The state counters that recordings of the
interviews tended to make more probable the facts that
the crimes had occurred and had been committed by the
defendant. We conclude that the defendant’s relevancy
arguments are without merit.
As an initial matter, we set forth the applicable legal
principles. ‘‘Section 4-1 of the Connecticut Code of Evi-
dence provides: Relevant evidence means evidence hav-
ing any tendency to make the existence of any fact that
is material to the determination of the proceeding more
probable or less probable than it would be without the
evidence. As it is used in [the Connecticut Code of
Evidence], relevance encompasses two distinct con-
cepts, namely, probative value and materiality. . . .
Conceptually, relevance addresses whether the evi-
dence makes the existence of a fact material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
In contrast, materiality turns upon what is at issue in
the case, which generally will be determined by the
pleadings and the applicable substantive law. . . . If
evidence is relevant and material, then it may be admis-
sible. . . . [T]he trial court has broad discretion in rul-
ing on the admissibility . . . of evidence. . . . The
trial court’s ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion. . . . We will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discretion.’’
(Citation omitted; internal quotation marks omitted.)
State v. Sampson, 174 Conn. App. 624, 635–36, 166 A.3d
1, cert. denied, 327 Conn. 920, 171 A.3d 57 (2017); see
also State v. Pena, 301 Conn. 669, 674, 22 A.3d 611(2011).
The relevancy argument raised by defense counsel
to the trial court focused on the connection between
forensic interviews, cases involving sexual assault and
the constancy of accusation doctrine. Specifically,
defense counsel stated: ‘‘The point being that in my
opinion, and I think the cases are pretty clear, the reason
we do the forensic interviews and the reason they’re
usually allowed in terms of relevance is because we
have this theory of constancy, that a sex assault victim
is going—is not going to—or normally is not going to
say anything. That’s usually the relevance. And so what
the state usually does is they put in the forensic inter-
view to show that they are consistent with what they
testified to or what has been said in—in the case. That’s
why it’s relevant. In this case that didn’t happen. . . .
So, there’s no constancy issue in this case. So, really
there’s no reason to need to put in the forensic interview
in the first place. . . . There’s no constancy issue, so
there’s no relevance.’’
In its preliminary ruling on the admissibility of the
forensic interviews, the court implicitly rejected the
defendant’s relevancy argument premised on the con-
stancy of accusation doctrine. After restating § 8-3 (5)
of the Connecticut Code of Evidence, the court referred
to State v. Griswold, supra, 160 Conn. App. 528. In that
case, we specifically stated that the rationale for the
medical diagnosis and treatment hearsay exception is
that ‘‘statements made in furtherance of obtaining treat-
ment [are presumed to be] inherently reliable because
the patient has an incentive to tell the truth in order
to obtain a proper medical diagnosis and treatment.’’
(Internal quotation marks omitted.) Id., 555; see also
State v. Cruz, supra, 260 Conn. 7–8; State v. Miller, 121
Conn. App. 775, 780, 998 A.2d 170, cert. denied, 298
Conn. 902, 3 A.3d 72 (2010). To the extent that the
defendant has reasserted this specific relevancy argu-
ment in this appeal, we conclude that it contradicts
existing precedent and is wholly without merit. The
medical diagnosis and treatment hearsay exception has
no direct connection to the constancy of accusation
doctrine and is not limited to sexual assault cases.
The defendant also argues that the recordings of the
forensic interviews failed to meet the standard of § 4-
1 of the Connecticut Code of Evidence, in that they did
not tend to make the existence of any material fact
more or less probable than it would be without such
evidence. We do not agree. In the forensic interviews,
J and D identified the defendant as the person who had
burned their hands and discussed the extent of the
injuries they suffered. Mindful that our jurisprudence
has recognized the ‘‘low hurdle of relevance’’; see State
v. Nowacki, 155 Conn. App. 758, 773, 111 A.3d 911(2015); and the obvious value of this evidence to the
state’s case, we conclude that this argument fails.
C
The defendant next argues that the prejudicial impact
of the forensic interviews of J and D outweighed their
probative value. He also contends that these interviews
were cumulative and, therefore, should not have been
admitted into evidence. The state counters that these
arguments are unreviewable due to an inadequate brief.
We agree with the state.
The defendant’s appellate brief contains the following
single sentence addressing these arguments. ‘‘Even if
the trial court believed the forensic interviews were
relevant, they should have been excluded pursuant to
. . . § 4-3 [of the Connecticut Code of Evidence]
because [their] probative value was outweighed by the
danger of unfair prejudice, and the evidence was cumu-
lative.’’ The defendant failed to cite any authority or to
present any reasoning to support his arguments regard-
ing the prejudicial impact or cumulative nature of the
forensic interviews.
‘‘We are not required to review issues that have been
improperly presented to this court through an inade-
quate brief. . . . Analysis, rather than mere abstract
assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly.’’ (Internal
quotation marks omitted.) State v. Fowler, 178 Conn.
App. 332, 345, 175 A.3d 76 (2017), cert. denied, 327
Conn. 999, 176 A.3d 556 (2018). ‘‘[F]or this court judi-
ciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set
forth their arguments in their briefs. . . . The parties
may not merely cite a legal principle without analyzing
the relationship between the facts of the case and the
law cited.’’ (Internal quotation marks omitted.) State v.
Claudio C., 125 Conn. App. 588, 600, 11 A.3d 1086(2010), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011).
Accordingly, we decline to review these unsubstanti-
ated arguments regarding the prejudicial impact and
cumulative nature of the recordings of the two forensic
interviews. We also conclude, therefore, that the defen-
dant’s claim that the court improperly admitted into
evidence the forensic interviews of J and D must fail.
II
The defendant next claims that the court improperly
denied his motions for a judgment of acquittal with
respect to two counts of risk of injury to a child. Specifi-
cally, he argues that the state failed to produce evidence
that J witnessed the burning of D, and that D witnessed
the burning of J. He contends that neither J nor D were
placed at risk of injury to their physical or mental health
because neither victim actually witnessed the burning
of the other. We disagree.
The following additional facts are necessary for the
resolution of this claim. In count four of the first infor-
mation, the state charged the defendant with violating
§ 53-21 (a) (1) by causing or permitting D to be placed
in a situation that her life or limb was endangered, or
her health was likely to be injured, by allowing her to
witness the burning of J. In count five of the second
information, the state alleged the same violation of § 53-
21 (a) (1) with respect to J as a result of her witnessing
the burning of D. The defendant moved for a judgment
of acquittal with respect to these two counts at the close
of the state’s case17 and his case.18 In both instances,
the court denied the defendant’s motions.
On appeal, the defendant argues that the state failed
to produce evidence that each girl directly observed
the burning of the other, and therefore the defendant’s
conduct fell outside the ambit of § 53-21 (a) (1).19 We
are not persuaded.
We begin our analysis by setting forth the relevant
legal principles germane to this claim. ‘‘A defendant
who asserts an insufficiency of the evidence claim bears
an arduous burden. . . . The standard of review [that]
we [ordinarily] apply to a claim of insufficient evidence
is well established. In reviewing the sufficiency of the
evidence to support a criminal conviction we apply a
two-part test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [finder
of fact] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt. . . . In evaluating evidence, the trier
of fact is not required to accept as dispositive those
inferences that are consistent with the defendant’s inno-
cence. . . . The trier may draw whatever inferences
from the evidence or facts established by the evidence
it deems to be reasonable and logical. . . .
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by
the defendant that, had it been found credible by the
trier, would have resulted in an acquittal. . . . Simply
stated, [o]n 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 evidence that
supports the jury’s verdict of guilty.’’ (Citations omitted;
internal quotation marks omitted.) State v. Berrios, 187
Conn. App. 661, 671–72, 203 A.3d 571, cert. denied,
331 Conn. 917, 204 A.3d 1159 (2019); see also State v.
Harper, 184 Conn. App. 24, 30, 194 A.3d 846, cert.
denied, 330 Conn. 936, 195 A.3d 386 (2018).
Next, we turn to the relevant statutory language. Sec-
tion 53-21 (a) provides in relevant part: ‘‘Any person
who (1) wilfully or unlawfully causes or permits any
child under the age of sixteen years to be placed in
such a situation that the life or limb of such child is
endangered, the health of such child is likely to be
injured or the morals of such child are likely to be
impaired, or does any act likely to impair the health or
morals of any such child . . . shall be guilty of (A) a
class C felony . . . .’’ In construing this statute, our
Supreme Court has long recognized that ‘‘subdivision
(1) of § 53-21 [(a)] prohibits two different types of
behavior: (1) deliberate indifference to, acquiescence
in, or the creation of situations inimical to the [child’s]
moral or physical welfare . . . and (2) acts directly
perpetrated on the person of the [child] and injurious
to his [or her] moral or physical well-being. . . . Thus,
the first part of § 53-21 [(a) (1)] prohibits the creation
of situations detrimental to a child’s welfare, while the
second part proscribes injurious acts directly perpe-
trated on the child.’’ (Emphasis omitted; internal quota-
tion marks omitted.) State v. James E., 327 Conn. 212,
219, 173 A.3d 380 (2017); see also State v. Padua, 273
Conn. 138, 147–48, 869 A.2d 192 (2005). This statute
criminalizes the creation of a situation likely to result
in injury to the mental health of a child. See State v.
Scruggs, 279 Conn. 698, 713–14, 905 A.2d 24 (2006);
State v. Aziegbemi, 111 Conn. App. 259, 265–66, 959
A.2d 1, cert. denied, 290 Conn. 901, 962 A.2d 128 (2008).
Finally, ‘‘[w]e are mindful that § 53-21 (a) (1) is broadly
drafted and was intended to apply to any conduct, illegal
or not, that foreseeably could result in injury to the
health of a child.’’ State v. Scruggs, supra, 724–25.
Applying these principles to the facts of the present
case, we conclude that the defendant’s claim of eviden-
tiary insufficiency must fail. It is undisputed that D was
present in the apartment when the defendant burned J
and that J was in the apartment when he burned D.
N stated that she was cleaning the kitchen when the
defendant called J, S and D out of their room. The
defendant, after screaming at the girls, picked up J,
carried her to the stove, ignited the flame and burned
her. On the basis of this testimony, and the photographs
admitted into evidence that depicted the layout of the
apartment, the jury reasonably could have concluded
that the defendant created a situation that was likely
to result in injury to D’s mental health as a result of
her witnessing the burning of J.
With respect to J, there was conflicting evidence as
to whether she directly observed the burning of D. In
her forensic interview, J stated that she and N attempted
to stop the defendant when he was holding D’s hands
over the flame. D also indicated during her forensic
interview that J saw the defendant burn D’s hands. J
testified at trial, however, that after the defendant had
burned her hands, she went to her bedroom. She heard
D cry out as she was getting burned. J saw D after the
burning, when D placed her hands in the bathtub filled
with water. D testified at trial that J was in her bedroom
when the defendant burned her. We are mindful that
‘‘[e]vidence is not insufficient . . . because it is con-
flicting or inconsistent. . . . It is the [jury’s] exclusive
province to weigh the conflicting evidence and to deter-
mine the credibility of witnesses. . . . The [jury] can
. . . decide what—all, none, or some—of a witness’
testimony to accept or reject.’’ (Internal quotation
marks omitted.) State v. Young, 174 Conn. App. 760,
766, 166 A.3d 704, cert. denied, 327 Conn. 976, 174 A.3d
195 (2017). Accordingly, we conclude that the defen-
dant’s claims of evidentiary insufficiency are without
merit.
III
Finally, the defendant claims that the court improp-
erly precluded him from presenting evidence of third-
party culpability. The defendant contends that this pre-
clusion resulted in constitutional and evidentiary error.
Specifically, he argues that the court should have per-
mitted him to testify about N’s prior statement to him
that she had burned J and D. We disagree.
The following additional facts are relevant to this
claim. On direct examination, N testified that the defen-
dant had physically assaulted her and burned J and D.
She also admitted to lying to Detective Cuddy about
the burnings, both at the hospital and a few days later.
The police arrested N on August 28, 2015, and inter-
viewed her again. During this interview, N inquired to
the police detective: ‘‘Why can’t you just say it was me
and call it a day?’’ N later testified that she made this
untruthful remark from a desire to conclude the investi-
gation. N also iterated that she did not burn the victims
but that it was the defendant who had done so.
The defendant testified at his trial and stated on direct
examination that N had made an ‘‘admission’’ to him.
The prosecutor objected on the basis of hearsay, which
the court sustained. On redirect examination, defense
counsel asked if the defendant ever had told the police
that N confessed to him. The prosecutor raised an objec-
tion, which the court sustained. At this point, the court
excused the jury, and the prosecutor indicated that
the objection was based on hearsay. Defense counsel
responded that N’s admission constituted a statement
against a penal interest and had not been offered for
the truth of the matter asserted. The court disagreed
and again sustained the prosecutor’s objection.
The court permitted defense counsel to make an offer
of proof. The defendant testified that N had confessed to
burning the victims and that the defendant had informed
the police of this confession. The jury returned, and
the court stated it had sustained the prosecutor’s objec-
tion. In his motion for a new trial, dated August 3, 2017,
the defendant reasserted this claim, arguing that the
evidence was not hearsay because (1) it was not offered
for the truth of the matter asserted or (2) it constituted
a statement against civil or penal interests.
On appeal the defendant claims, for the first time,
that the court’s ruling violated his sixth amendment
right to present a defense.20 He also claims that the
court improperly determined that the statement against
penal interest exception to the hearsay rule did not
apply to N’s admission to the defendant that she had
burned the victims. We conclude that the court did not
abuse its discretion in ruling that this hearsay exception
did not apply, and therefore the defendant cannot pre-
vail on either his evidentiary or constitutional claims.
First, we set forth the applicable legal principles and
our standard of review. ‘‘When a trial court improperly
excludes evidence in a criminal matter, the defendant’s
constitutional rights may be implicated. It is fundamen-
tal that the defendant’s [right] . . . to present a defense
[is] guaranteed by the sixth amendment to the United
States constitution. . . . In plain terms, the defen-
dant’s right to present a defense is the right to present
the defendant’s version of the facts as well as the prose-
cution’s to the jury so that it may decide where the
truth lies. . . .
‘‘Nevertheless, [i]t is well established that a trial court
has broad discretion in ruling on evidentiary matters
. . . . Accordingly, the trial court’s ruling is entitled to
every reasonable presumption in its favor . . . and we
will disturb the ruling only if the defendant can demon-
strate a clear abuse of the court’s discretion.’’ (Internal
quotation marks omitted.) State v. Watson, 192 Conn.
App. 353, 375–76, A.3d (2019); see also State
v. Durdek, 184 Conn. App. 492, 499 n.5, 195 A.3d 388(defendant is bound by rules of evidence in presenting
defense, and if proffered evidence constitutes inadmis-
sible hearsay, defendant’s constitutional right to pres-
ent defense is not violated by its exclusion), cert.
denied, 330 Conn. 934, 194 A.3d 1197 (2018); State v.
Ramos, 182 Conn. App. 604, 614, 190 A.3d 892 (sixth
amendment rights, although substantial, do not suspend
rules of evidence), cert. denied, 330 Conn. 917, 193 A.3d
1213 (2018).
Section 8-6 of the Connecticut Code of Evidence pro-
vides in relevant part: ‘‘The following are not excluded
by the hearsay rule if the declarant is unavailable as a
witness . . . (4) . . . A trustworthy statement against
penal interest that, at the time of its making, so far
tended to subject the declarant to criminal liability that
a reasonable person in the declarant’s position would
not have made the statement unless the person believed
it to be true. In determining the trustworthiness of a
statement against penal interest, the court shall con-
sider (A) the time the statement was made and the
person to whom the statement was made, (B) the exis-
tence of corroborating evidence in the case, and (C)
the extent to which the statement was against the
declarant’s penal interest. . . .’’ See also State v. Bryan,
193 Conn. App. 285, 299, A.3d (2019); State v.
Azevedo, 178 Conn. App. 671, 685–86, 176 A.3d 1196(2017), cert. denied, 328 Conn. 908, 178 A.3d 390 (2018);
E. Prescott, supra, § 8.34.2, pp. 631–32.
To use the statement against penal interest exception
to the rule against hearsay, ‘‘the proponent of the evi-
dence must demonstrate that the declarant is unavail-
able. See State v. Schiappa, 248 Conn. 132, 141, 728
A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145
L. Ed. 2d 129 (1999).’’ State v. Rodriguez, 146 Conn.
App. 99, 109, 75 A.3d 798, cert. denied, 310 Conn. 948, 80
A.3d 906 (2013). Thus, in the present case, the defendant
had to establish the unavailability of N to use the state-
ment against penal interest hearsay exception. See State
v. Bryant, 202 Conn. 676, 694, 523 A.2d 451 (1987).
Our Supreme Court has employed the definitions of
‘‘unavailability’’ from rule 804 (a) of the Federal Rules
of Evidence with respect to this hearsay exception.
State v. Lopez, 239 Conn. 56, 74–75, 681 A.2d 950 (1996);
see also State v. Wright, 107 Conn. App. 85, 89–90, 943
A.2d 1159, cert. denied, 287 Conn. 914, 950 A.2d 1291(2008). ‘‘Rule 804 (a) lists five situations in which the
declarant witness may be considered unavailable: (1)
the court has determined that the witness has a testimo-
nial privilege; (2) the witness persists in refusing to
testify despite a court order to do so; (3) the witness
has a lack of memory; (4) the witness is unable to be
present or testify because of death or existing physical
or mental illness or infirmity; and (5) the witness is
absent from the hearing and the proponent of his state-
ment has been unable to procure his attendance . . .
[or testimony] by process or other reasonable means.’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Frye, 182 Conn. 476, 481, 438 A.2d 735 (1980).
The defendant argues that N ‘‘was unavailable, pursu-
ant to the rules of evidence and, therefore, her state-
ment should have come in as a statement against penal
interest.’’ Specifically, he noted that N was ‘‘reluctant’’
at trial to make a statement against her penal interest,
there were ‘‘pauses’’ in her testimony, her version of
the events was ‘‘opposite’’ to that of the defendant, her
testimony would not be ‘‘favorable’’ to the defendant
and she had demonstrated a willingness to lie to protect
herself. These contentions, unsupported by case law or
other legal authority, fail to acknowledge that N testi-
fied during the defendant’s criminal trial and are not
encompassed within the five situations of unavailability
set forth by our Supreme Court. As a result of the
defendant’s inability to meet the threshold requirement
of N’s unavailability, the statement against penal inter-
est hearsay exception cannot provide a path to admit
this testimony into evidence. Further, as a result of
the court’s proper evidentiary ruling, the defendant’s
constitutional claim must fail.
The judgments are affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victims or others
through whom the victims’ identities may be ascertained. See General Stat-
utes § 54-86e.
1
These convictions arose from charges set forth in two separate informa-
tions that had been consolidated and tried together.
2
In connection with the events of this case, N was arrested on August
28, 2015. On November 21, 2016, she pleaded guilty to five counts of risk
of injury to a child in violation of § 53-21 (a) (1). Her sentence, which had
not been imposed at the time of the defendant’s trial, was capped at twenty
years incarceration, execution suspended after ten years, with the right to
argue for a lesser sentence.
3
Shapiro described a first-degree burn as ‘‘something analogous to a
sunburn. . . . It can be a thermal burn, it can be from chemicals. It’s a very
superficial burn that only involves the outer layer of the skin called the
epidermis . . . .’’ Shapiro further explained that ‘‘[a] second-degree burn
is one that is deeper and goes into the dermis, which is the layer below the
epidermis where there’s nerves and fat and other structures. And that can
be either partial or full thickness second-degree burns based on how deep
it goes within that layer. . . . [A] third-degree burn basically is a full thick-
ness burn, meaning that it goes through all the layers of the skin . . . .’’ In
the emergency department, burn classification is determined by the appear-
ance of the burned area, with ‘‘first [degree] being pink, second [degree]
being blistered, [and] third [degree] being white.’’
4
Specifically, Shapiro stated: ‘‘When you see black or brown or charring,
that can indicate a deeper burn. Brown or black is when it gets through
the skin and starts to get down into the muscle and the bone, but on a
fingernail it just may be the nail itself is charred, but the thing is, usually
black or brown is a sign of even—what we call a fourth-degree burn, which
is when you get to the muscle and the bone.’’ Richard Garvey, a surgeon
at the Bridgeport Hospital, stated that the presence of this black material
indicated a heat source of approximately 700 degrees Fahrenheit.
5
Shapiro also testified that the defendant had told the nurses that D’s
injuries resulted from touching a hot stove. Shapiro stated that this statement
was inconsistent with the burns on both sides of D’s hands that he observed
because a person generally does not touch something with the back of their
hand, or with both hands.
6
See General Statutes § 17a-101g (e) and (f).
7
See General Statutes (Rev. to 2015) § 46b-129 (b).
8
As a result of our conclusion that the defendant failed to demonstrate
that the trial court abused its discretion in admitting the forensic interviews
into evidence, we need not reach the issue of harm. ‘‘When an improper
evidentiary ruling is not constitutional in nature, the defendant bears the
burden of demonstrating that the error was harmful. . . . [W]hether [an
improper ruling] is harmless in a particular case depends upon a number
of factors, such as the importance of the . . . testimony in the prosecution’s
case, whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise permitted, and,
of course, the overall strength of the prosecution’s case. . . . Most import-
antly, we must examine the impact of the . . . evidence on the trier of fact
and the result of the trial. . . . [T]he proper standard for determining
whether an erroneous evidentiary ruling is harmless should be whether the
jury’s verdict was substantially swayed by the error. . . . Accordingly, a
nonconstitutional error is harmless when an appellate court has a fair assur-
ance that the error did not substantially affect the verdict.’’ (Internal quota-
tion marks omitted.) State v. Ayala, 333 Conn. 225, 231–32, 215 A.3d 116(2019); see also State v. Tarasiuk, 192 Conn. App. 207, 218, A.3d
(2019) (incumbent on defendant to show that nonconstitutional evidentiary
error was harmful in order to obtain new trial).
Assuming, arguendo, that this court were to reach the issue of harm, we
would conclude that the defendant had failed to meet his burden that an
evidentiary error substantially affected the verdict. The defendant argued
that the admission of the forensic interviews was harmful because the jury
heard from J and D more than once, the forensic interviews occurred in a
sympathetic setting and the prosecutor focused on these interviews in her
closing argument. The state countered that the evidence against the defen-
dant was overwhelming in that four witnesses identified the defendant as
the person who burned J and D, and the medical testimony established that
the burns were neither accidental nor self-inflicted. Additionally, the state
presented consciousness of guilt evidence supporting its case against the
defendant. Thus, if this court were to reach the issue of harm, we would
conclude that the defendant had failed to meet his burden that an evidentiary
error substantially affected the verdict.
9
Specifically, the defendant stated that ‘‘most cases involving a forensic
interview involve an allegation of sex abuse . . . [and that] most sex abuse
cases involve a delay in disclosing the actual abuse . . . .’’ The defendant
further argued that the relevancy of forensic interviews usually is based on
the constancy of accusation doctrine. We note that this doctrine ‘‘permits
a person to whom a sexual assault victim has reported the alleged assault
to testify regarding the fact and timing of the victim’s complaint.’’ State v.
Samuels, 273 Conn. 541, 547, 871 A.2d 1005 (2005); see generally Conn.
Code Evid. (2009) § 6-11 (c); State v. Troupe, 237 Conn. 284, 304, 677 A.2d
917 (1996). More recently, our Supreme Court concluded that ‘‘the constancy
of accusation doctrine should continue to be employed in Connecticut to
counter implicit juror bias against victims, including children, who delay in
reporting sexual abuse, but in a modified form intended to address the
potential prejudice to defendants caused by the testimony of multiple con-
stancy witnesses.’’ State v. Daniel W. E., 322 Conn. 593, 618, 142 A.3d
265 (2016).
10
In its memorandum, the state, inter alia, acknowledged that the
recordings contained the hearsay statements of J and D, but asserted that
they were admissible under the medical treatment or tender years exceptions
to the rule against hearsay.
11
Specifically, the defendant contended that the constancy of accusation
doctrine is limited to cases of sexual assault, that this was not a case of
‘‘incremental disclosure’’ by J and D and that the concept of incremental and
delayed disclosure by abused children is ‘‘well-known.’’ (Internal quotation
marks omitted.)
12
Specifically, defense counsel stated: ‘‘If you look at Griswold, that obvi-
ously involved a sex assault case. Although it doesn’t talk about the underly-
ing reasons for why it was relevant in the first place, I think it’s presupposed
that those forensic interviews were relevant because we had a constancy
issue because most people, according to our law, most people don’t think
that sex assault victims are going to—or they think that sex assault victims,
if they were raped, would tell immediately. That’s the purpose of allowing
that interview in. I understand what Griswold says. I don’t really have an
answer, this, you know, this forensic interview was pretty much done exactly
the way they said in Griswold. I don’t have a problem with that. My point
is, this is not Griswold because it’s an assault, a physical assault. And there’s
no question as to when it took place and what the kids said. . . . And I
still haven’t heard what the state’s relevance is relative to either [J’s] or
[D’s] interviews. . . . This is an extremely big stretch of Griswold, and I
think that’s inappropriate.’’
13
Our law recognizes that the statement sought to be admitted pursuant
to this hearsay exception need not be made to a physician, so long as the
interviewer is acting within the chain of medical care. See State v. Cruz,
260 Conn. 1, 10, 792 A.2d 823 (2002); State v. Eddie N. C., 178 Conn. App.
147, 171, 174 A.3d 803 (2017), cert. denied, 327 Conn. 1000, 176 A.3d 558(2018); State v. Donald M., 113 Conn. App. 63, 71, 966 A.2d 266, cert. denied,
291 Conn. 910, 969 A.2d 174 (2009).
14
Specifically, Vidro defined a forensic interview as ‘‘a nonleading fact-
finding interview of a child where there is a concern of abuse.’’ She also
stated that the purposes of such an interview are to assess whether the
child is safe, requires medical care or requires mental health treatment.
Vidro noted that the interview is recorded and that the child is made aware
that others will observe the interview. The purpose of the recording and
the presence of observers, such as an employee of the Department of Chil-
dren and Families or a member of a law enforcement agency, is to minimize
the trauma of multiple interviews.
15
Vidro explained that D’s hospitalization caused the delay of her foren-
sic interview.
16
After the verdict, the defendant filed a motion for a new trial pursuant
to Practice Book § 42-53. He argued, inter alia, that the forensic interviews
‘‘did not fall under the medical diagnosis exception to the general prohibition
against hearsay.’’ An evidentiary argument raised for the first time in a
postverdict motion for a new trial is not preserved for appellate review.
See State v. Daniel W., 180 Conn. App. 76, 96 n.7, 182 A.3d 665, cert. denied,
328 Conn. 929, 182 A.3d 638 (2018); see also State v. Messam, 108 Conn.
App. 744, 760, 949 A.2d 1246 (2008) (problems inherent in allowing counsel
to wait until after adverse verdict to raise objections to evidence are too
obvious to warrant discussion).
17
At the close of the state’s case, defense counsel argued: ‘‘These are the
counts where, essentially, [the defendant] is alleged to have forced one of
the kids to watch the burning of both kids, and there’s two counts because
there’s two injuries or two victims. My recollection is that there’s no evidence
of that. He didn’t deliberately do that. In fact, I think the testimony for [J]
is that she was in the bedroom, at least during the part of it when it happened,
and she certainly wasn’t—he was deliberately forcing her to watch. But I
think that that’s—that covers both counts . . . .’’
18
Specifically, defense counsel stated: ‘‘I would just say just for the record
I’m going to—we move for motion for judgment of acquittal based on the
prior arguments I made.’’
19
At trial, the defendant challenged the absence of the general intent
element with respect to § 53-21 (a) (1); see, e.g., State v. Euclides L., 189
Conn. App. 151, 161–62, 207 A.3d 93 (2019); while on appeal, he focuses his
sufficiency claim on whether each child was present when the other was
burned. To the extent that his appellate argument is unpreserved, it is
nevertheless reviewable by this court. See State v. Revels, 313 Conn. 762,
777, 99 A.3d 1130 (2014), cert. denied, 574 U.S. 1177, 135 S. Ct. 1451, 191
L. Ed. 2d 404 (2015); State v. Griffin, 184 Conn. App. 595, 613, 195 A.3d
723, cert. denied, 330 Conn. 941, 195 A.3d 692 (2018), and cert. denied, 330
Conn. 941, 195 A.3d 693 (2018).
20
The defendant requests review of this claim 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).