State v. Williams ( 2020 )

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STATE OF CONNECTICUT v. RICARDO K. WILLIAMS
(AC 43226)
DiPentima, C. J., and Lavine and Bright, Js.*
Syllabus
Convicted, after a jury trial, of sexual assault in the first degree, sexual
assault in the fourth degree and risk of injury to a child, the defendant
appealed to this court. He claimed that he was entitled to a new trial
on the basis of alleged prosecutorial improprieties during the state’s
closing argument and the state’s examination of its witnesses, which
resulted in a denial of his due process right to a fair trial, and that the
evidence was insufficient to support the mandatory minimum sentence
imposed by the court pursuant to statute (§ 53a-70 (b) (2)). Held:
1. The defendant could not prevail on his claim that he was deprived of his
right to a fair trial as a result of alleged prosecutorial improprieties:
the prosecutor’s references to the complainant as the ‘‘victim’’ did not
constitute prosecutorial impropriety as the prosecutor’s use of the word
‘‘victim’’ was relatively infrequent, the court repeatedly instructed the
jurors that the arguments of counsel were not evidence, the prosecutor
reminded the jury at the beginning of her rebuttal that closing arguments
were ‘‘arguments,’’ and, when defense counsel objected to the prosecu-
tor’s use of the word ‘‘victim’’ during closing argument, the trial court
sustained the objection and immediately instructed the jury to disregard
it, whereby the prosecutor promptly apologized in front of the jury;
moreover, the prosecutor’s statements expressing her opinion on the
credibility of the victim during closing argument were proper argument
because they reflected reasonable inferences that the jury could have
drawn from the evidence produced at trial, and, as it was the defendant’s
theory of defense that the evidence showed that that the victim made
up the allegations against the defendant, the prosecutor was allowed
to address that argument in her closing argument; furthermore, the
prosecutor did not improperly elicit comments on the credibility of
the victim from the state’s witnesses, as the witnesses’ inappropriate
answers to otherwise proper questions did not constitute prosecu-
torial impropriety.
2. The defendant’s unpreserved claim that there was insufficient evidence
for the jury to find beyond a reasonable doubt that the victim was under
ten years of age at the time of the first sexual assault to support the
mandatory minimum sentence imposed by the court pursuant to § 53a-
70 was unavailing, as the victim testified that she was nine years old at
the time of the first sexual assault, and this testimony, in conjunction
with her testimony concerning the dates of the other incidents, provided
a sufficient evidentiary basis for the jury to answer the interrogatory in
the affirmative; moreover, even though the jury was presented with
conflicting evidence as to the victim’s age at the time of the first sexual
assault, the jury was free to believe the victim’s testimony that she was
nine years old at the time, and, therefore, this court concluded that the
evidence was sufficient to support the jury’s finding.
Submitted on briefs April 6—officially released September 29, 2020
Procedural History
Substitute information charging the defendant with
two counts of the crime of sexual assault in the first
degree and one count each of the crimes of sexual
assault in the fourth degree and risk of injury to a child,
brought to the Superior Court in the judicial district of
New Haven, geographical area number twenty-three,
and tried to the jury before Vitale, J.; verdict and judg-
ment of guilty, from which the defendant appealed to
this court. Affirmed.
Alice Osedach, assistant public defender, for the
appellant (defendant).
Samantha L. Oden, deputy assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, Mary A. Sanangelo, senior assistant state’s
attorney, and Maxine Wilensky, senior assistant state’s
attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Ricardo K. Wil-
liams, appeals from the judgment of conviction, ren-
dered after a jury trial, of two counts of sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (2), one count of sexual assault in the fourth
degree in violation of General Statutes (Rev. to 2013)
§ 53a-73a (a) (1) (A) and one count of risk of injury to
a child in violation of General Statutes § 53-21 (a) (1). On
appeal, the defendant claims that (1) he was deprived
of the right to a fair trial as a result of prosecutorial
impropriety and (2) the evidence was insufficient to
support the mandatory minimum sentence imposed by
the court under § 53a-70 (b) (2). We are not persuaded
and, accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. In 2012, the victim1 lived on the second floor
of a multifamily apartment with her mother and her
siblings. The defendant was in a relationship with the
victim’s mother at the time and often would spend the
night at the apartment.
In the autumn of 2012, when the victim was nine
years old, she was sleeping on the couch in the living
room of the apartment. She awoke to the defendant
hovering over her. The defendant picked her up, carried
her into her bedroom, laid her on her back on the bed
and, after putting on a condom, sexually assaulted her
by vaginal intercourse, causing her to bleed and to expe-
rience pain.
A second incident occurred sometime that winter,
after the victim and her family had moved to a new
apartment. On that night, the victim and her younger
brother had fallen asleep on the floor of their playroom.
She awoke to the defendant tapping her and telling her
to come into the adjoining living room. The defendant
laid her on the floor, removed her underwear and sexu-
ally assaulted her, also by vaginal intercourse.
A third incident occurred on December 14, 2013. That
morning, the victim was lying on the bed in her sibling’s
bedroom. The defendant, who had been making break-
fast, entered the room, got onto the bed with the victim
and kissed the victim’s mouth and neck, as well as her
chest, breasts, stomach, vagina and inner thighs above
the clothes. The assault ended when the victim’s mother
called for the defendant. On June 18, 2015, the victim
met with Brian Schweinsburg, a clinical psychologist
specializing in neuropsychology, in New Haven. Her
mother had arranged the appointment due to her con-
cerns about the victim’s increased levels of depression
and recent suicide attempts. Schweinsburg conducted
an assessment interview with the victim, who revealed
that the defendant had ‘‘raped’’ her on multiple occa-
sions. Following the interview, Schweinsburg arranged
for an ambulance to transport the victim to the hospital
for further psychiatric evaluation. Schweinsburg also
made oral and written reports to the Department of
Children and Families (department) regarding the vic-
tim’s disclosure of the sexual assaults.
The victim was discharged from the hospital the fol-
lowing morning and returned to her mother’s apart-
ment. That day, a department investigator made an
unannounced visit to the home, but was denied access
by the victim’s mother. On July 8, 2015, the victim was
brought to Yale New Haven Hospital for a forensic
interview regarding her disclosures of sexual assault by
the defendant. Following the interview, Lisa Pavlovic,
a physician at the Yale Child Abuse Clinic, conducted
a medical examination of the victim. The examination
revealed that the victim had suffered a penetrating
injury to her vagina.
Thereafter, on July 29, 2015, Kristine Cuddy, a detec-
tive with the New Haven Police Department, inter-
viewed the defendant concerning the victim’s allega-
tions. In October, 2015, the defendant was arrested and,
in a 2017 long form information, was charged in counts
one and two with sexual assault in the first degree, in
count three with sexual assault in the fourth degree
and in count four with risk of injury to a child. The
case proceeded to a trial by jury on that information.
On January 11, 2018, the jury found the defendant guilty
of all counts. The jury, in response to a written interrog-
atory, specifically found that the victim was under ten
years of age at the time of the sexual assault alleged
in the first count of the long form information.
Following the verdict, the defendant filed a motion
for new trial nunc pro tunc, claiming prosecutorial
impropriety. The court denied the motion and thereafter
sentenced the defendant on count one to ten years of
incarceration in accordance with the statutory mini-
mum under § 53a-70 (b) (2),2 followed by five years of
special parole, on count two to ten years of incarcera-
tion, five years mandatory, followed by five years of
special parole, on count three to two years and one day
of incarceration followed by two years of special parole,
all to be served consecutively, and on count four to ten
years of incarceration to be served concurrently to all
of the other counts, for a total effective term of twenty-
two years and one day of incarceration, fifteen years
of which are mandatory, followed by twelve years of
special parole. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that he was deprived of
the right to a fair trial as a result of prosecutorial impro-
priety. Specifically, he argues that the prosecutor’s
impropriety during direct examination and closing argu-
ments deprived him of his due process right to a fair
trial. The defendant contends that the prosecutor acted
improperly in three ways: (1) by referring to the com-
plainant as the ‘‘victim,’’ (2) by expressing her opinion
concerning the credibility of the victim in closing argu-
ment and (3) by eliciting comments on the credibility
of the victim from the state’s witnesses. In the alterna-
tive, he argues that this court should exercise its super-
visory powers to reverse his conviction because of ‘‘the
flagrant prosecutorial improprieties in this case.’’ We
disagree with the first argument and decline the invita-
tion to consider the alternative argument.
The record reveals that the defendant did not specifi-
cally object to all of the alleged instances of impropriety
that he now claims. This failure does not preclude our
review. It is well settled that ‘‘a defendant who fails to
preserve claims of prosecutorial [impropriety] need not
seek to prevail under the specific requirements of 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)], and, similarly, it is unnecessary for
a reviewing court to apply the four-pronged Golding
test. . . . The reason for this is that the defendant in
a claim of prosecutorial [impropriety] must establish
that the prosecutorial [impropriety] was so serious as
to amount to a denial of due process . . . .’’ (Citation
omitted; internal quotation marks omitted.) State v.
Warholic, 278 Conn. 354, 360, 897 A.2d 569, 578 (2006);
accord State v. Payne, 303 Conn. 538, 560, 34 A.3d 370,
386 (2012).
Accordingly, we undertake our review of these claims
with a two step analysis. It is well established that
‘‘[i]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [impropri-
ety] occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial. . . . [W]hen a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show . . .
that the remarks were improper . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Taft,
306 Conn. 749, 761–62, 51 A.3d 988 (2012).
‘‘If we conclude that prosecutorial impropriety
occurred, we then decide whether the defendant was
deprived of his due process right to a fair trial by consid-
ering [the factors set forth in State v. Williams, 204
Conn. 523, 540, 529 A.2d 653 (1987)] [1] the extent to
which the [impropriety] was invited by defense conduct
or argument . . . [2] the severity of the [impropriety]
. . . [3] the frequency of the [impropriety] . . . [4] the
centrality of the [impropriety] to the critical issues in
the case . . . [5] the strength of the curative measures
adopted . . . and [6] the strength of the state’s case.
. . . As is evident upon review of these factors, it is
not the prosecutor’s conduct alone that guides our
inquiry, but, rather, the fairness of the trial as a whole.’’
(Citation omitted; internal quotation marks omitted.)
State v. Albert D., 196 Conn. App. 155, 162–63, 229 A.3d
1176, cert. denied, 335 Conn. 913, 229 A.3d 118 (2020).
With those principles in mind we address each of the
defendant’s claims of impropriety in turn.
A
The defendant first claims that the prosecutor acted
improperly by referring to the complainant as the ‘‘vic-
tim’’ during closing argument.3 Specifically, the defen-
dant directs us to the following four statements. First,
the prosecutor stated: ‘‘There is a stipulation in this
case about the ages and the dates of birth, so you don’t
have to say oh, how old was the defendant or how old
was the victim you have their dates of birth.’’ Second,
the following exchange occurred:
‘‘[The Prosecutor]: The victim testified a week ago,
a little over a week ago—
‘‘[Defense Counsel]: Objection as to the use of the
term victim, Your Honor.
‘‘The Court: Sustain the objection. Jury disregard it.
‘‘[The Prosecutor]: I’m sorry, I apologize. The com-
plainant. We are not calling her a victim; I apologize.’’
Third, the prosecutor stated: ‘‘It sounds like [the
defendant] was a good authority figure in the house,
maybe a little stability to a crazy mother, but maybe
that made her a perfect victim.’’ Finally, the prosecutor
commented that ‘‘[h]e just pulls up his pants and leaves
and leaves her there. She was the perfect victim.’’ The
state argues that these statements, given their infre-
quency and context, do not amount to impropriety. We
agree with the state.
In cases where the use of the term ‘‘victim’’ is at
issue, ‘‘[o]ur Supreme Court has stated that a court’s
repeated use of the word victim with reference to the
complaining witness is inappropriate when the issue at
trial is whether a crime has been committed. . . . A
different set of circumstances exists when the person
making reference to the complaining witness is the
prosecutor.’’ (Emphasis added.) State v. Rodriguez, 107
Conn. App. 685, 701, 946 A.2d 294, cert. denied, 288
Conn. 904, 953 A.2d 650 (2008).
‘‘This is so, our courts have held, for two basic rea-
sons. First, although a prosecutor’s reference to the
complainant as the ‘victim,’ in a trial where her alleged
victimization is at issue, risks communicating to the
jury that the prosecutor personally believes that she in
fact is a victim, and thus the defendant is guilty of
victimizing her, the isolated or infrequent use of that
term in a trial otherwise devoid of appeals to passion
or statements of personal belief by the prosecutor will
probably be understood by jurors to be consistent with
the prosecutor’s many proper references to the com-
plainant as the complainant or the alleged victim, partic-
ularly where the prosecutor openly acknowledges and
willingly accepts the state’s burden of proving the defen-
dant guilty beyond a reasonable doubt solely on the
basis of the evidence admitted at trial. Second, when
a prosecutor uses that term in argument, where his or
her role is generally expected and understood to be that
of an advocate, such isolated or infrequent references
to the complainant as the ‘victim’ are likely to be under-
stood by jurors as parts of a proper argument that the
evidence has established the complainant’s victimiza-
tion, and thus the defendant’s guilt, beyond a reasonable
doubt. In either of those circumstances, the prosecu-
tor’s use of the term ‘victim’ in reference to the com-
plainant is not considered improper because such usage
does not illicitly ask the jury to find the defendant guilty
on the basis of the prosecutor’s personal belief in the
complainant’s victimization or the defendant’s guilt.’’
State v. Thompson, 146 Conn. App. 249, 268–69, 76 A.3d
273, cert denied, 310 Conn. 956, 81 A.3d 1182 (2013).
A brief review of the relevant case law will facilitate
our analysis of this argument. In State v. Warholic,
supra, 278 Conn. 370, our Supreme Court held that
reference to the complainant as the ‘‘victim’’ twice dur-
ing closing argument did not amount to impropriety
because ‘‘the jury was likely to understand that the
state’s identification of the complainant as the victim
reflected the state’s contention that, based on the state’s
evidence, the complainant was the victim of the alleged
crimes.’’ The court did, however, caution the state
against ‘‘making excessive use of the term ‘victim’ to
describe a complainant when the commission of a crime
is at issue . . . .’’ Id., 370 n.7.
In State v. Rodriguez, supra, 107 Conn. App. 703, in
holding that the prosecutor’s ‘‘sporadic’’ references to
the complainant as the ‘‘victim’’ did not amount to
impropriety, this court stated that ‘‘[j]urors understand
the respective roles of the prosecutor and defense coun-
sel. It should not be assumed that jurors will be unduly
influenced by the prosecutor’s use of the word victim.’’
In that case, because this court found that an eviden-
tiary basis existed for the jury to conclude that the
complainant was indeed the victim of the offense, the
prosecutor’s use of the word victim was unlikely to
confuse the jury and constituted a proper rhetorical
argument. Id.
Likewise, in State v. Kurrus, 137 Conn. App. 604, 621,
49 A.3d 260, cert. denied, 307 Conn. 923, 55 A.3d 556
(2012), this court did not find impropriety when the
prosecutor used the word ‘‘victim’’ three times at the
end of his closing argument, told the jury at the begin-
ning of closing argument that his statements were argu-
ment, and the court instructed the jurors in its instruc-
tions that closing arguments were not testimony, but
merely statements to help them interpret the evidence.
This court stated that given these factors it ‘‘[would]
not assume that the jurors were unduly influenced by
the prosecutor’s isolated use of the word victims.’’ Id.
Cases in which our courts have determined that refer-
ences to the complainant as the ‘‘victim’’ constituted
impropriety concerned more obvious and frequent uses
of the term as compared to the cases discussed. See,
e.g., State v. Albino, 130 Conn. App. 745, 24 A.3d 602
(2011) (distinguishing Warholic and Rodriguez and
holding that prosecutor’s reference to the complainant
as ‘‘the victim’’ approximately twenty-seven times was
improper), aff’d, 312 Conn. 763, 97 A.3d 478 (2014);
State v. Thompson, supra, 146 Conn. App. 271 (finding
that prosecutor’s use of word ‘‘victim’’ seven times in
reference to complainant, each of which was subject
to timely defense objection all of which were sustained
by the court without opposition by the state, was
improper).
Here, the defendant identifies four instances when
the prosecutor used the word ‘‘victim.’’ The defendant
attempts to distinguish Kurrus by noting that here,
unlike in Kurrus, the prosecutor did not begin her clos-
ing argument by expressly telling the jury that her argu-
ments are solely arguments and not evidence. This con-
tention is unpersuasive. The court repeatedly instructed
the jurors that the arguments of counsel are not evi-
dence4 and the prosecutor reminded the jury at the
beginning of her rebuttal that closing arguments are
‘‘arguments.’’ Moreover, when defense counsel objected
to the prosecutor’s use of the word ‘‘victim’’ during
closing argument, the trial court sustained the objection
and immediately instructed the jury to disregard it,
whereby the prosecutor promptly apologized in front
of the jury. See State v. Ubaldi, 190 Conn. 559, 563,
462 A.2d 1001 (‘‘[w]e have often held that a prompt
cautionary instruction to the jury regarding improper
prosecutorial remarks obviates any possible harm to
the defendant’’), cert. denied, 464 U.S. 916, 104 S. Ct.
280, 78 L. Ed. 2d 259 (1983).
Given these circumstances and the prosecutor’s rela-
tively infrequent use of the word victim we find this
case to be similar to Kurrus and conclude that the
prosecutor’s references to the complainant as the ‘‘vic-
tim’’ did not constitute prosecutorial impropriety.5
B
The defendant next argues that the prosecutor acted
improperly by expressing her opinion on the credibility
of the victim during closing argument. The state
responds that the prosecutor’s comments were proper
argument because they reflected reasonable inferences
that the jury could have drawn from the evidence pro-
duced at trial. We agree with the state.
We begin by detailing the challenged statements and
the context in which they arose. During closing argu-
ment, the prosecutor first stated: ‘‘It is the state’s posi-
tion—is that [the victim] was credible and she was being
consistent.’’ In the second challenged statement the
prosecutor stated: ‘‘It is your job to assess the credibility
of [the victim]. She was here. You also have her video.
If you need to, watch her video and compare it with
what she told you live and see how consistent she is
and how credible she is.’’ The third statement was:
‘‘Watch [the video]. She wasn’t coached. They asked
what happened, show us. That’s not a false accusation.
A false accusation does not have graphic detail and
sensory impressions.’’
The fourth challenged statement concerned the
motives of the victim: ‘‘What motivation would she have
to talk about [the defendant] after [the defendant and
the victim’s mother] had already broken up? Yes, maybe
a motivation to get out of mom’s house certainly.
There’s no motivation to fabricate a story against [the
defendant]; he was long gone.’’
The defendant also challenges statements made dur-
ing the state’s rebuttal argument to the jury. In the first
statement, the prosecutor stated: ‘‘And again, the state
is going to ask you again to look at the credible, consis-
tent evidence of [the victim] when she was here, [the
victim] on her video. Watch that video again. You
decide.’’ In the second challenged statement in rebuttal,
the prosecutor indicated that ‘‘[the victim] said [the
defendant was the person who had sexually assaulted
her], there’s medical evidence, she was consistent, she
was credible.’’ In the last challenged statement, the
prosecutor asked: ‘‘How could she make a false accusa-
tion and have a torn hymen?’’
It is well settled that ‘‘[a] prosecutor may not express
his [or her] own opinion, directly or indirectly, as to
the credibility of the witnesses. . . . Such expressions
of personal opinion are a form of unsworn and
unchecked testimony, and are particularly difficult for
the jury to ignore because of the prosecutor’s special
position. . . . Put another way, the prosecutor’s opin-
ion carries with it the imprimatur of the [state] and may
induce the jury to trust the [state’s] judgment rather
than its own view of the evidence. . . . Moreover,
because the jury is aware that the prosecutor has pre-
pared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions. . . . However, [i]t is not improper for the
prosecutor to comment upon the evidence presented
at trial and to argue the inferences that the jurors might
draw therefrom. . . . We must give the jury the credit
of being able to differentiate between argument on the
evidence and attempts to persuade them to draw infer-
ences in the state’s favor, on one hand, and improper
unsworn testimony, with the suggestion of secret
knowledge, on the other hand. The [prosecutor] should
not be put in the rhetorical straitjacket of always using
the passive voice, or continually emphasizing that he
[or she] is simply saying I submit to you that this is
what the evidence shows, or the like.’’ (Internal quota-
tion marks omitted.) State v. Ciullo, 314 Conn. 28, 40–41,
100 A.3d 779 (2014).
‘‘A prosecutor’s mere use of the words honest, credi-
ble, or truthful does not, per se, establish prosecutorial
impropriety. . . . The distinguishing characteristic of
impropriety in this circumstance is whether the prose-
cutor asks the jury to believe the testimony of the state’s
witnesses because the state thinks it is true, on the one
hand, or whether the prosecutor asks the jury to believe
it because logic reasonably thus dictates.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Fasanelli, 163 Conn. App. 170, 186, 133 A.3d 921 (2016).
Further, ‘‘[i]t is well established that a prosecutor
may argue about the credibility of witnesses, as long
as her assertions are based on evidence presented at
trial and reasonable inferences that jurors might draw
therefrom.’’ (Internal quotation marks omitted.) State
v. Ciullo, supra, 314 Conn. 45. ‘‘Moreover, we have held
that [i]t is permissible for a prosecutor to explain that
a witness either has or does not have a motive to lie.’’
(Internal quotation marks omitted.) State v. Reddick,
174 Conn. App. 536, 562, 166 A.3d 754, cert. denied, 327
Conn. 921, 171 A.3d 58 (2017), cert. denied, U.S.
, 138 S. Ct. 1027, 200 L. Ed. 2d 285 (2018).
With those principles in mind, we conclude that in
this case the prosecutor’s comments were not
improper. The prosecutor’s statements in both closing
arguments concerning the credibility of the victim
‘‘when placed in the context in which they were made,
are reasonable inferences the jury could have drawn
from the evidence adduced at trial.’’ State v. Ciullo,
supra, 314 Conn. 42. The prosecutor properly argued
that the jury should assess the evidence and testimony
adduced at trial and that such review would lead to the
conclusion that the victim was credible. Simply because
the prosecutor used the word ‘‘credible’’ in her argu-
ment does not establish prosecutorial impropriety. See
State v. Fasanelli, supra, 163 Conn. App. 186. Thus, the
context shows that these statements were not
improper.
Likewise, we find that the challenged statement that
the victim had no motive to lie was proper. ‘‘This court
previously has concluded that the state may argue that
its witnesses testified credibly, if such an argument is
based on reasonable inferences drawn from the evi-
dence. . . . Specifically, the state may argue that a wit-
ness has no motive to lie.’’ (Citation omitted.) State
v. Warholic, supra, 278 Conn. 365. At trial, there was
evidence offered concerning the time frame of the
defendant’s relationship with the victim’s mother and
the victim’s abusive home environment. The prosecu-
tor’s statement asked the jury to recall this evidence
and use it in their assessments of the victim’s credibility.
Moreover, it was the defendant’s theory of defense that
the evidence showed that the victim ‘‘made up’’ the
allegations against the defendant, and the prosecutor
was allowed to address this argument in her closing.
We therefore conclude that the prosecutor’s statements
were proper argument.
C
Last, the defendant argues that the prosecutor acted
improperly by eliciting comments on the credibility of
the victim from the state’s witnesses. Specifically, the
defendant points to the testimony of Schweinsburg and
Cuddy and argues that improper statements given dur-
ing their respective direct examinations were the result
of improper questioning by the prosecutor. The state
argues that, regardless of whether the witness’ testi-
mony was improper, it was not given in response to
improper questions from the prosecutor and, therefore,
cannot be attributed to prosecutorial impropriety. We
agree with the state.
During the prosecutor’s direct examination of
Schweinsburg, the witness testified as follows:
‘‘[The Prosecutor]: Doctor, what did [the victim] look
like to you as she was describing being sexually
assaulted allegedly by [the defendant]?
‘‘[The Witness]: She appeared to me to be a—telling
a credible story.
‘‘[Defense Counsel]: Objection.
‘‘The Court: Sustain . . . . That last statement is
stricken; disregard it. Doctor, please listen to the ques-
tion that’s asked.
‘‘[The Prosecutor]: Doctor, I’m not asking for your
assessment at this point.
‘‘[The Witness]: Hm-hmm.
‘‘[The Prosecutor]: We’re just asking what did she
look like.
‘‘[The Witness]: Okay.’’
Schweinsburg proceeded to testify as to his physical
observations of the victim. Thereafter, outside the pres-
ence of the jury, the court cautioned Schweinsburg
and asked him to ‘‘direct [his] answers to the specific
question that’s asked.’’
The defendant further directs us to the prosecutor’s
direct examination of Cuddy:
‘‘[The Prosecutor]: [I]n cases you personally have
handled, and you indicated you’ve handled at least 200
. . . do those result in arrests every time?
‘‘[The Witness]: No.
‘‘[The Prosecutor]: And why not?
‘‘[The Witness]: Because most of these crimes
occur—there’s no witnesses, there’s no evidence, the
statements get recanted. They’re very hard cases to put
together. You need to be able to prove that the timeline
matches, the person matches, the child’s story is legit.
Any corroboration of anything, if the person was—you
know—in the place where the child said the place was
and other things happened, everything happened but
the sexual event, it’s pretty likely that the child is telling
you the truth. So that’s just part of the investigation.
‘‘The Court: Just a second. That last statement is
ordered stricken from the record. Jury disregard it.
‘‘[The Witness]: Sorry, Your Honor.’’
Later in the direct examination, the prosecutor asked
Cuddy ‘‘what was the end result of your investigation,’’
whereby Cuddy responded that she ‘‘had probable
cause.’’ That comment was stricken by the court and
the jury was instructed to disregard it. The prosecutor
then asked Cuddy if she had arrested the defendant in
October, 2015, and she responded in the affirmative.
In its final instructions to the jury, the court specifi-
cally addressed the testimony: ‘‘To the extent that Dr.
Schweinsburg, Detective Cuddy, or any other wit-
nesses, if any, may have commented either directly or
indirectly in the course of testimony in court on the
credibility of [the victim] or her accusations that are
the subject of this trial, such testimony is stricken and
you are not—and you are to disregard it. You are not
to consider any such testimony when evaluating the
evidence in this case, and any such comments . . . are
to play absolutely no role in your deliberations . . . .’’
‘‘It is well established that a witness may not be asked
to comment on the veracity of another witness’ testi-
mony. . . . Such questions are prohibited because
determinations of credibility are for the jury, and not
for witnesses. . . . Consequently, questions that ask a
[witness] to comment on another witness’ veracity
invade the province of the jury. . . . [Q]uestions of this
sort also create the risk that the jury may conclude
that, in order to acquit the defendant, it must find that
the witness has lied. . . . A witness’ testimony, how-
ever, can be unconvincing or wholly or partially incor-
rect for a number of reasons without any deliberate
misrepresentation being involved. . . .
‘‘Moreover, [w]e repeatedly have stated that an expert
may not testify regarding the credibility of a particular
victim. The reason is that such testimony may be viewed
as a direct assertion that validate[s] the truthfulness of
[the victim’s] testimony.’’ (Citations omitted; internal
quotation marks omitted.) State v. Ritrovato, 280 Conn.
36, 64–65, 905 A.2d 1079 (2006); see also State v. Taft,
supra, 306 Conn. 764; State v. Singh, 259 Conn. 693,
706–710, 793 A.2d 226 (2002).
The defense argues that this case is similar to Ritro-
vato. We disagree. In Ritrovato, the prosecutor asked
the witness on redirect examination whether she found
the victim’s account of the incident to be ‘‘credible.’’
State v. Ritrovato, supra, 280 Conn. 60 n.19. Here, the
prosecutor did not ask either witness to comment on
the credibility of the victim. The prosecutor made clear
to Schweinsburg that she was attempting to elicit testi-
mony concerning his observations of the victim’s physi-
cal appearance, not his opinions of the victim’s credibil-
ity.6 Likewise, the first question to Cuddy at issue
properly inquired as to her process in investigating simi-
lar allegations and elicited, in part, proper testimony.
The second question to Cuddy at issue similarly was
not improper but a permissive inquiry into the investiga-
tion of the defendant. Witnesses’ inappropriate answers
to otherwise proper questions do not constitute prose-
cutorial impropriety. We therefore conclude that the
prosecutor did not improperly elicit comments on the
credibility of the victim from the state’s witnesses.
Because we conclude that no prosecutorial impropri-
ety occurred, we need not consider whether the defen-
dant was deprived of his due process right to a fair
trial. See State v. Reddick, supra, 174 Conn. App. 563.
II
The defendant’s second claim is that the evidence
was insufficient to support the mandatory minimum
sentence imposed by the court under § 53a-70 (b) (2).
Specifically, the defendant argues that the state failed
to produce sufficient evidence regarding the age of the
victim at the time of the sexual assault as alleged in
count one. We disagree.
The following procedural history is relevant to the
resolution of this claim. The jury was instructed on four
counts against the defendant pursuant to the 2017 long
form information. With respect to the first count, which
alleged sexual assault in the first degree in violation of
§ 53a-70 (a) (2), the jury was provided with an instruc-
tion that if it found that the state had proven all the
elements of the offense beyond a reasonable doubt, it
was to further make a separate and specific finding, by
means of a written interrogatory, as to whether the
state had ‘‘proven beyond a reasonable doubt, that the
complainant was less than ten years of age at the time
of the offense alleged.’’ The purpose of this written
interrogatory was to determine the defendant’s statu-
tory minimum sentence pursuant to § 53a-70 (b) (2).7
See State v. Kirk R., 271 Conn. 499, 512, 857 A.2d 908
(2004) (determining that factual question of whether
victim was under ten years of age at time of violation
of § 53a-70 (a) is to be determined by jury). The jury
answered the written interrogatory in the affirmative
and the defendant subsequently was sentenced to ten
years of incarceration in accordance with the statutory
minimum on this count.
The defendant argues that there was insufficient evi-
dence for the jury to find beyond a reasonable doubt
that the victim was under ten years of age at the time
of the first sexual assault. Specifically, he contends
that the victim’s testimony was inconsistent with other
evidence adduced at trial such that the jury could not
have found that the victim was under ten years of age
at the time of the first sexual assault. The defendant
does not dispute that there was sufficient evidence to
prove that the victim was under sixteen years of age
at the time of the offense and asks us to remand this
case to the trial court to resentence the defendant to a
five year mandatory sentence on this count. See General
Statutes § 53a-70 (b) (2). The state argues that, on the
basis of the testimony of the victim at trial, the jury
reasonably could have inferred that the victim was
under ten years old at the time of the first offense. We
agree with the state.
Although this claim was not preserved at trial, it is
reviewable. ‘‘Unpreserved sufficiency claims are
reviewable on appeal because such claims implicate a
defendant’s federal constitutional right not to be con-
victed of a crime upon insufficient proof. . . . Our
Supreme Court has stated that Jackson v. Virginia,
[443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)],
compels the conclusion that any defendant found guilty
on the basis of insufficient evidence has been deprived
of a constitutional right, and would therefore necessar-
ily meet the four prongs of [State v. Golding, supra,
213 Conn. 239–40]. . . . Thus . . . there is no practi-
cal reason for engaging in a Golding analysis of a claim
based on the sufficiency of the evidence. . . . We will
review the defendant’s challenge to the sufficiency of
the evidence as we do any properly preserved claim.’’
(Citation omitted; internal quotation marks omitted.)
State v. Cyrta, 107 Conn. App. 656, 659–60, 946 A.2d
288, cert. denied, 288 Conn. 912, 954 A.2d 185 (2008).
The standard of review for sufficiency of the evidence
claims 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 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
[finder of fact] must find every element proven beyond
a reasonable doubt in order to find the defendant 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 rea-
sonable and logical for the [finder of fact] to conclude
that a basic fact or an inferred fact is true, the [finder
of fact] 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. . . .
‘‘When there is conflicting evidence . . . it is the
exclusive province of the . . . trier of fact, to weigh
the conflicting evidence, determine the credibility of
witnesses and determine whether to accept some, all
or none of a witness’ testimony. . . . Questions of
whether to believe or to disbelieve a competent witness
are beyond our review. As a reviewing court, we may
not retry the case or pass on the credibility of witnesses.
. . . We must defer to the trier of fact’s assessment of
the credibility of the witnesses that is made on the basis
of its firsthand observation of their conduct, demeanor
and attitude . . . . 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.’’ (Citation omitted; internal quotation marks
omitted.) State v. Daniel G., 147 Conn. App. 523, 530–31,
84 A.3d 9, cert. denied, 311 Conn. 931, 87 A.3d 579
(2014).
The state relied primarily on the testimony of the
victim at trial to prove that she was under the age of
ten at the time of the first sexual assault. The victim
testified that she was nine years old at the time of the
first incident. She further testified that the third incident
occurred on December 14, 2013, her eleventh birthday,
that the second incident had occurred one year prior
in the winter and that the first incident occurred in
autumn.
The defendant argues that the victim was not ‘‘ada-
mant’’ about her timeline of events and points to incon-
sistencies in the victim’s testimony as well as to incon-
sistencies between the victim’s timeline of events and
other testimony and evidence adduced at trial. In sup-
port of his argument, the defendant cites the victim’s
statements made at trial that she ‘‘can’t really remember
the time [of the incidents]’’ and her statement in the
July 8, 2015 forensic interview that she was ten at the
time of the first incident. He also directs us to the
testimony of Schweinsburg who testified that the victim
told him in the June 18, 2015 interview that the incidents
occurred between December, 2013 and February, 2014,
a period in which the victim was more than ten years
old.
‘‘It is well settled . . . that [e]vidence is not insuffi-
cient . . . because it is conflicting or inconsistent.
. . . Rather, the [finder of fact] [weighs] the conflicting
evidence and . . . can decide what—all, none, or
some—of a witness’ testimony to accept or reject.’’
(Internal quotation marks omitted.) State v. Montana,
179 Conn. App. 261, 266, 178 A.3d 1119, cert. denied,
328 Conn. 911, 178 A.3d 1042 (2018).
Here, the victim testified that she was nine years old
at the time of the first sexual assault.8 This, in conjunc-
tion with her testimony concerning the dates of the
other incidents, provided a sufficient evidentiary basis
for the jury to answer the interrogatory in the affirma-
tive. That conflicting evidence was proffered does not
undermine our decision. ‘‘As a reviewing court, we may
not retry the case or pass on the credibility of witnesses.
. . . [W]e must defer to the [finder] of fact’s assessment
of the credibility of the witnesses that is made on the
basis of its firsthand observation of their conduct,
demeanor, and attitude. . . . Credibility determina-
tions are the exclusive province of the . . . fact finder,
which we refuse to disturb.’’ Id., 265–66. Furthermore,
‘‘[e]ven if uncorroborated, the victim’s testimony, if
believed, may be sufficient to support a guilty verdict.’’
State v. Antonio W., 109 Conn. App. 43, 53, 950 A.2d
580, cert. denied, 289 Conn. 923, 958 A.2d 153 (2008).
The jury was presented with conflicting evidence as to
the victim’s age at the time of the first sexual assault
and was free to believe the victim’s testimony that she
was nine years old at the time. See State v. Montana,
supra, 179 Conn. App. 266. Because we conclude that
the evidence was sufficient to support the jury’s finding,
we reject the defendant’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date the appeal was submitted on briefs.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom victim’s identity may be
ascertained. See General Statutes § 54-86e.
2
General Statutes § 53a-70 (b) (2) provides in relevant part: ‘‘Any person
found guilty under said subdivision (1) or (2) shall be sentenced to a term
of imprisonment of which ten years of the sentence imposed may not be
suspended or reduced by the court if the victim is under ten years of age
or of which five years of the sentence imposed may not be suspended or
reduced by the court if the victim is under sixteen years of age.’’
3
As part of this claim, the defendant also argues that the prosecutor acted
improperly by referring to the complainant as the ‘‘victim’’ during the voir
dire of two venirepersons. The state correctly notes that neither of these
venirepersons actually served on the jury. We agree with the state that
because neither of the venirepersons served on the jury, these alleged
instances of impropriety cannot have unduly influenced the jury’s decision
making or otherwise denied the defendant his due process right to a fair
trial. See State v. Thompson, 146 Conn. App. 249, 268–69, 76 A.3d 273
(noting that prosecutor referring to complainant as ‘‘victim’’ risks improper
communication to jury), cert. denied, 310 Conn. 956, 81 A.3d 1182 (2013).
We therefore conclude that this argument is without merit.
4
Indeed, before the court began to deliver its final instruction to the jury
it expressly addressed this issue: ‘‘Before I begin, there is one thing I need
to address with respect to the arguments of counsel. To the extent the state
in any part of its argument referred to [the complainant] as the ‘victim,’ I
instruct you that the use of that term was improper and you are to disregard
it. It is your responsibility alone to determine whether the state has proven
any of these allegations beyond a reasonable doubt.’’ Although the court
told the jury that the prosecutor’s use of the word ‘‘victim’’ was improper, that
impropriety. As noted previously in this opinion, isolated instances of the
use of improper language is typically insufficient to support a conclusion
that there was prosecutorial impropriety.
5
Further, with respect to the prosecutor’s comments that the complainant
was the ‘‘perfect victim,’’ we note that in State v. Ceballos, 266 Conn. 364,
832 A.2d 14 (2003), our Supreme Court concluded that the prosecutor’s
comments about the claimant being the ‘‘perfect victim’’ because of her
childhood and living conditions constituted a proper argument concerning
the defendant’s opportunity to commit the alleged offenses and were not
improper appeals to the jurors’ emotions. Id., 394–95. Here, the prosecutor
referred to the complainant as the ‘‘perfect victim’’ in an analogous manner,
to argue that the circumstances surrounding the alleged offenses—i.e., the
defendant’s position of authority as her mother’s boyfriend, and an unstable
home environment—made the complainant vulnerable. These two com-
ments by themselves constituted proper argument.
6
Indeed, defense counsel did not object to Schweinsburg’s eventual testi-
mony regarding his observations of the victim’s mannerisms.
7
See footnote 2 of this opinion.
8
The victim testified as follows:
‘‘Q. Let me ask you—let’s go slow. The first time, you were living at . . . .
‘‘A. Yes.
‘‘Q. Okay. And do you remember this first time, how old were you, when
this first thing happened to you?’’
‘‘A. Nine.
‘‘Q. Okay. Do you remember a specific date, or anything about when the
date the first time happened was?
‘‘A. No
‘‘Q. Okay. But you know you were about nine years old?
‘‘A. Yes.’’