State v. Jerrell R. , 187 Conn. App. 537 ( 2019 )

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STATE OF CONNECTICUT v. JERRELL R.*
(AC 40155)
DiPentima, C. J., and Lavine and Harper, Js.
Syllabus
Convicted of the crime of unlawful restraint in the second degree, and of
two counts of the crime of risk of injury to a child in violation of
statute (§ 53-21 [a] [1] and [2]), the defendant appealed to this court.
The defendant’s conviction stemmed from an incident involving the
minor victim, who was his daughter. On appeal, the defendant claimed
that his conviction of two counts of risk of injury to a child violated
the double jeopardy clause and that he was denied a fair trial due
to certain instances of prosecutorial impropriety that occurred during
closing and rebuttal arguments. Held:
1. The defendant could not prevail on his unpreserved claim that his convic-
tion under subdivisions (1) and (2) of § 53-21 (a) violated the constitu-
tional prohibition against double jeopardy, as he failed to establish that
the charged offenses arose out of the same act or transaction: the
evidence, charging documents, and the state’s theory of the case
reflected that the defendant’s conduct was separable into distinct parts,
each punishable as a separate offense, as the jury reasonably could have
credited the testimony of the victim and her mother that the defendant
waited until the victim’s mother was in the shower, and then pulled
down the victim’s pants, pinned her against the wall and forced her
head toward his exposed penis while instructing her to suck it, which
supported the defendant’s conviction of risk of injury to a child under
§ 53-21 (a) (1), and the jury reasonably could have credited the victim’s
statements in her forensic interview that the defendant touched her
vagina while also discrediting the defendant’s testimony that the touch-
ing was accidental, which supported his conviction of risk of injury to
a child under § 53-21 (a) (2); moreover, the defendant’s reliance on
certain case law in support of his claim that this court must conclude
that the crimes arose out of the same transaction because it was unclear
what conduct the jury relied on to convict him was misplaced, as the
case law relied on by the defendant was distinguishable from the present
case in that the reviewing court looked only to the charging documents
and did not consider, as instructed by more recent case law, the evidence
presented at trial or the state’s theory of the case to discern what the
jury reasonably could have found to support the conviction.
2. The defendant’s claim that he was deprived of a fair trial as a result of
certain instances of prosecutorial impropriety during closing and rebut-
tal arguments was unavailing:
a. The prosecutor did not misstate the law with respect to subdivision
(2) of § 53-21 (a) during closing argument by referring to evidence
relating to the risk of injury charge under § 53-21 (a) (1); the prosecutor
aptly explained the difference between the two charges and correctly
stated that the sexual contact itself must impair the health or morals
of a child to support a conviction under § 53-21 (a) (2), the prosecutor
was not required in presenting closing argument to neatly arrange the
evidence introduced at trial according to the charge it supported, and
the defendant failed to object to the remarks, which suggested that he
did not view them as improper at the time they were made.
b. The prosecutor did not, during rebuttal argument, improperly offer
her personal opinion regarding the credibility of the victim’s sister,
who had testified to the defendant’s prior acts of sexual misconduct
committed on her while she was sleeping; the prosecutor’s challenged
remark was based on the evidence presented at trial and was a proper
request for the jurors to use their common sense to draw reasonable
inferences from the evidence to support the theory that the defendant
intentionally touched the victim’s intimate parts in a similarly sexual
manner, the prosecutor’s use of the phrase ‘‘in my opinion’’ in this
context did not raise the concern of improper unsworn testimony, and
the defendant did not object to the remarks at the time they were made.
Argued October 9, 2018–officially released January 29, 2019
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree and
unlawful restraint in the second degree, and with two
counts of the crime of risk of injury to a child, brought
to the Superior Court in the judicial district of Fairfield
and tried to the jury before Pavia, J.; verdict and judg-
ment of guilty of unlawful restraint in the second degree
and risk of injury to a child, from which the defendant
appealed to this court. Affirmed.
Matthew C. Eagan, assigned counsel, with whom
was Emily Graner Sexton, assigned counsel, for the
appellant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Colleen P. Zingaro, assistant
state’s attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Jerrell R., appeals from
the judgment of conviction, rendered following a jury
trial, of risk of injury to a child in violation of General
Statutes § 53-21 (a) (1), risk of injury to a child in viola-
tion of § 53-21 (a) (2), and unlawful restraint in the
second degree in violation of General Statutes § 53a-
96 (a). On appeal, the defendant claims that (1) his
conviction of both risk of injury to a child charges
violate his constitutional protection against double
jeopardy and (2) the prosecutor made improper
remarks to the jury during closing and rebuttal argu-
ments that deprived him of his due process right to a
fair trial. We affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. The victim, the victim’s mother, and the victim’s
two siblings lived on the first floor of a six family home.
The defendant was the father of both the victim, who
was six years old, and the victim’s sister. On the evening
of March 7, 2015, the defendant sent text messages to
the victim’s mother, asking if he could come to her
home. The victim’s mother acquiesced, and the defen-
dant arrived twenty minutes later. After watching televi-
sion and conversing with the defendant and the victim
in the bedroom of the victim’s mother, the victim’s
mother left the room to shower.
After approximately eight minutes, the victim’s
mother heard the victim screaming. At first, the victim’s
mother did not think anything of the screaming because
she believed that the defendant and victim were just
playing. After realizing that the victim was calling for
help, the victim’s mother ran out of the bathroom and
toward her bedroom, where the door was partially shut.
Upon opening the door, the victim’s mother witnessed
the defendant holding the victim by the face and pinning
her against the wall while her pants were halfway down.
After the victim’s mother returned to the bedroom, the
defendant went into the kitchen, got on his knees, and
started crying and pulling on his hair. At that point, the
defendant left the home after the victim’s mother told
him to leave. The victim later revealed in a forensic
interview that while her mother was in the shower, the
defendant had removed her pants, touched her vagina,
and forced her head toward his exposed penis.
After the defendant left the home, the victim
described her encounter with the defendant to her
mother, who then tried to reach the defendant via phone
in an attempt to have him come back to the house.
After he stopped answering text messages, the victim’s
mother contacted the police, who subsequently inter-
viewed the victim at her home. The victim’s mother
again urged the defendant to come back to the house,
but he refused once he came close to the home and
noticed police cars parked outside. The victim subse-
quently was transported to the hospital, accompanied
by her mother and the responding police officers. In
an attempt to get the defendant to come to the hospital,
the victim’s mother sent a text message to the defendant
saying that the victim had suffered an asthma attack
and was going to the hospital.
The defendant later arrived at the hospital, where he
spoke with police officers after waiving his Miranda1
rights. During questioning, the defendant claimed to be
concerned that other men were touching his daughter
inappropriately, and he admitted that he might have
touched the victim’s vagina. Additionally, the defendant
later conceded in an interview with a social worker
from the Department of Children and Families that he
restrained the victim and may have touched her vagina
by accident.
The state originally filed a seven count information
after the victim’s two siblings also alleged that the
defendant had inappropriate sexual contact with them.
After one of the victim’s siblings declined to testify at
trial, the state filed an amended information, charging
the defendant with sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2), risk of
injury to a child in violation of § 53-21 (a) (1), risk of
injury to a child in violation of § 53-21 (a) (2), and
unlawful restraint in the second degree in violation of
§ 53a-96 (a). All of these charges related to the incident
with the victim.
At trial, the jury found the defendant not guilty of
sexual assault in the first degree and guilty of unlawful
restraint and both counts of risk of injury to a child.
The court subsequently sentenced the defendant to a
total effective sentence of eighteen years imprisonment,
execution suspended after eight years, followed by
twenty-five years of probation. This appeal followed.
Additional facts will be set forth as necessary.
I
First, the defendant claims that his conviction of risk
of injury to a child under both § 53-21 (a) (1)2 and
(2)3 violates his constitutional protection against double
jeopardy because the offenses arose from the same
transaction and, pursuant to Blockberger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306
(1932), both offenses required proof of substantively
identical elements. We disagree.
As a preliminary matter, the defendant acknowledges
that he failed to raise the present claim before the trial
court. The defendant argues, however, that his unpre-
served claim nonetheless is reviewable 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). Under Golding, ‘‘a defendant
can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are
met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of
any one of these conditions, the defendant’s claim will
fail.’’ (Emphasis in original; footnote omitted.) State
v. Golding, supra, 239–40. ‘‘The first two steps in the
Golding analysis address the reviewability of the claim,
while the last two steps involve the merits of the claim.’’
(Internal quotation marks omitted.) State v. Britton,
283 Conn. 598, 615, 929 A.2d 312 (2007).
The claim is reviewable pursuant to Golding because
the record is adequate for review and the claim is of
constitutional magnitude. See State v. Urbanowski, 163
Conn. App. 377, 386, 136 A.3d 236 (2016), aff’d, 327
Conn. 169, 172 A.3d 201 (2017). Moreover, the defendant
claims that he has received duplicative punishments
for the same offense in a single trial. ‘‘A defendant may
obtain review of a double jeopardy claim, even if it is
unpreserved, if he has received two punishments for
two crimes, which he claims were one crime, arising
from the same transaction and prosecuted at one trial
. . . .’’ (Internal quotation marks omitted.) Id., 386–87.
Because the defendant’s claim is reviewable, we next
address its merits.
We first set forth the applicable standard of review
and relevant legal principles that guide our analysis.
‘‘A defendant’s double jeopardy challenge presents a
question of law over which we have plenary review.
. . . The double jeopardy clause of the fifth amendment
to the United States constitution provides: [N]or shall
any person be subject for the same offense to be twice
put in jeopardy of life or limb. The double jeopardy
clause is applicable to the states through the due pro-
cess clause of the fourteenth amendment. . . . This
constitutional guarantee prohibits not only multiple tri-
als for the same offense, but also multiple punishments
for the same offense in a single trial. . . .
‘‘Double jeopardy analysis in the context of a single
trial is a two-step process. First, the charges must arise
out of the same act or transaction. Second, it must be
determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met.’’ (Citations omitted; internal
quotation marks omitted.) State v. Wright, 319 Conn.
684, 689, 127 A.3d 147 (2015). If we determine that the
charges do not arise from the same transaction, we do
not need to proceed to the second step of the analysis.
State v. Schovanec, 326 Conn. 310, 328, 163 A.3d 581
(2017).
‘‘Traditionally we have applied the Blockburger test
to determine whether two statutes criminalize the same
offense, thus placing a defendant prosecuted under
both statutes in double jeopardy: [W]here the same act
or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other
does not. . . . This test is a technical one and examines
only the statutes, charging instruments, and bill of par-
ticulars as opposed to the evidence presented at
trial. . . .
‘‘Our analysis of [the defendant’s] double jeopardy
[claim] does not end, however, with a comparison of
the offenses. The Blockburger test is a rule of statutory
construction, and because it serves as a means of dis-
cerning [legislative] purpose the rule should not be con-
trolling where, for example, there is a clear indication
of contrary legislative intent. . . . Thus, the
Blockburger test creates only a rebuttable presumption
of legislative intent, [and] the test is not controlling
when a contrary intent is manifest. . . . When the con-
clusion reached under Blockburger is that the two
crimes do not constitute the same offense, the burden
remains on the defendant to demonstrate a clear legisla-
tive intent to the contrary.’’ (Citations omitted; internal
quotation marks omitted.) State v. Wright, supra,
689–90.
We begin our analysis by determining whether the
conviction for both counts of risk of injury to a child
pursuant to § 53-21 (a) (1) and (2) arose from the same
act or transaction. ‘‘[D]istinct repetitions of a prohibited
act, however closely they may follow each other . . .
may be punished as separate crimes without offending
the double jeopardy clause. . . . The same transaction,
in other words, may constitute separate and distinct
crimes where it is susceptible of separation into parts,
each of which in itself constitutes a completed offense.
. . . [T]he test is not whether the criminal intent is one
and the same and inspiring the whole transaction, but
whether separate acts have been committed with the
requisite criminal intent and are such as are made pun-
ishable by the [statute].’’ (Citations omitted; internal
quotation marks omitted.) State v. Tweedy, 219 Conn.
489, 497–98, 594 A.2d 906 (1991). When analyzing
whether the conviction arose from the same act or
transaction, ‘‘it is not uncommon that we look to the
evidence at trial and to the state’s theory of the case
. . . in addition to the information against the defen-
dant, as amplified by the bill of particulars.’’ (Citation
omitted; internal quotation marks omitted.) State v. Por-
ter, 328 Conn. 648, 662, 182 A.3d 625 (2018).
At the onset, we note that the defendant did not
obtain a bill of particulars to clarify the charges alleged
in the information.4 As a result, pursuant to our Supreme
Court’s recent decision in Porter, we look to the infor-
mation, the evidence adduced at trial, and the state’s
theory of the case to discern whether the conviction
arose from the same act or transaction. Our Supreme
Court, when examining those materials, has asked
whether a jury reasonably could have found a separate
factual basis to support its conviction for the offenses
charged. See id., 656–57 (noting that Schovanec looked
to what a jury reasonably could have found); State v.
Schovanec, supra, 326 Conn. 329; State v. Snook, 210
Conn. 244, 265, 555 A.2d 390 (1987), cert. denied, 492
U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). We
conclude that the defendant’s conviction pursuant to
both risk of injury to a child charges arose from separate
acts and transactions.
The defendant argues that the state intermingled evi-
dence, making it impossible to deduce what evidence
the jury relied on to support its conviction for both
counts of risk of injury to a child. Specifically, the defen-
dant points to several statements made by the state
during closing argument, suggesting that the state mis-
led the jury into considering evidence related to the
situational risk of injury to a child charge under § 53-
21 (a) (1) when discussing the sexual contact risk of
injury charge under § 53-21 (a) (2) and vice versa.5 We
are not persuaded.
In State v. Schovanec, supra, 326 Conn. 312–17, the
defendant was convicted of identity theft in the third
degree in violation of General Statutes § 53a-129d,
credit card theft in violation of General Statutes § 53a-
128c (a), illegal use of a credit card in violation of
General Statutes § 53a-128d (2), and larceny in the sixth
degree in violation of General Statutes § 53a-125b after
he stole the victim’s wallet and later utilized her credit
cards to purchase gasoline and cigarettes. In support
of his argument that his conviction violated his constitu-
tional protection against double jeopardy, the defen-
dant essentially argued that because the trial court had
referred to the purchase of gasoline and cigarettes with
the stolen credit cards, in addition to the theft of the
wallet, when charging the jury on the larceny in the
sixth degree charge, all of the defendant’s acts were
part of the same transaction. Id., 328–29. Our Supreme
Court rejected this argument, opining that ‘‘because the
jury, and not the judge, was the fact finder . . .
because the information was broad enough to encom-
pass the theft of the wallet and its contents and the
separate unauthorized charges on the credit cards, and
because the prosecutor both argued the case and pre-
sented evidence in that manner relating to both inci-
dents, we reject the defendant’s arguments in that
regard.’’ Id., 329.
Similarly, in the present case, we find that the infor-
mation was broad enough to encompass both risk of
injury charges and that the state presented evidence at
trial in a manner that supported the jury’s factual find-
ings. Additionally, a review of the record reveals that
the defendant’s conduct is susceptible to separation
into distinct parts, which supports the conviction for
both charges of risk of injury to a child. The jury reason-
ably could have found a separate factual basis, on the
basis of the testimony of witnesses and the evidence
admitted at trial, to support each conviction of risk of
injury to a child.
First, the jury reasonably could have credited the
testimony of the victim and the victim’s mother that
the defendant waited until the victim’s mother was in
the shower, pulled down the victim’s pants, pinned her
against the wall, and forced her head toward his
exposed penis. These statements would support a con-
viction of risk of injury to a child under § 53-21 (a) (1).
Moreover, the jury reasonably could have credited the
victim’s statements in her forensic interview that the
defendant touched her vagina while also discrediting
the defendant’s testimony that his contact with the vic-
tim’s vagina was accidental and was done out of con-
cern that other men were touching her in that area.
These statements would support a conviction of risk
of injury to a child under § 53-21 (a) (2).
To bolster his claim, the defendant relies on State v.
Mezrioui, 26 Conn. App. 395, 402–403, 602 A.2d 29, cert.
denied, 224 Conn. 909, 617 A.2d 169 (1992), for the
proposition that where it is unclear what conduct the
jury relied on to convict the defendant, we must con-
clude that the crimes arose out of the same transaction.
In Mezrioui, the defendant was convicted of sexual
assault in the first degree and sexual assault in the third
degree after he raped the victim in his car. Id., 396–98.
The trial court instructed the jury that the defendant’s
contact with either the victim’s groin or breasts would
support a conviction of sexual assault in the third
degree. Id., 402–403. Because sexual assault in the first
degree entailed incidental contact with the groin, and
because it was unclear whether the jury relied on the
defendant’s contact with the victim’s groin or breasts
for its conviction of sexual assault in the third degree,
this court concluded that the crimes arose out of the
same act or transaction. Id., 403.
A key distinction in Mezrioui, however, is that this
court’s analysis looked only to the charging documents.
Id., 402. Therefore, it did not consider the evidence
presented at trial and the state’s theory of the case to
discern what the jury reasonably could have found to
support the conviction at issue. Id. Consequently, we
are unpersuaded by the defendant’s reliance on Mezri-
oui because it does not reflect our more recent double
jeopardy jurisprudence that looks to the evidence pre-
sented at trial as well as the state’s theory of the case
under the first part of the double jeopardy analysis.
In conclusion, the defendant’s conviction did not
arise from the same acts or transactions. Because the
defendant has failed to satisfy the first part of our dou-
ble jeopardy inquiry, we decline to move to the second
step of the analysis. Accordingly, we find that the defen-
dant’s constitutional protection against double jeopardy
was not violated.
II
The defendant next claims that he was deprived of
a fair trial due to prosecutorial impropriety during the
course of closing and rebuttal arguments. Specifically,
he argues that the prosecutor (1) misstated the law and
(2) gave her personal opinion as to the credibility of a
witness. We disagree.
We begin by setting forth the relevant law that guides
our analysis. Although the defendant did not object to
the prosecutor’s remarks at trial, his claim is nonethe-
less reviewable because ‘‘a defendant who fails to pre-
serve claims of prosecutorial [impropriety] need not
seek to prevail under the specific requirements of [Gold-
ing], and, similarly, it is unnecessary for a reviewing
court to apply the four-pronged Golding test.’’ (Internal
quotation marks omitted.) State v. Papantoniou, 185
Conn. App. 93, 110, 196 A.3d 839 (2018).
‘‘[O]ur Supreme Court has explained that a defen-
dant’s failure to object at trial to each of the occurrences
that he now raises as instances of prosecutorial impro-
priety, though relevant to our inquiry, is not fatal to
review of his claims. . . . This does not mean, how-
ever, that the absence of an objection at trial does not
play a significant role in the determination of whether
the challenged statements were, in fact, improper. . . .
To the contrary, we continue to adhere to the well
established maxim that defense counsel’s failure to
object to the prosecutor’s argument when it was made
suggests that defense counsel did not believe that it
was [improper] in light of the record of the case at
the time.’’ (Internal quotation marks omitted.) State v.
Roberts, 158 Conn. App. 144, 151, 118 A.3d 631 (2015).
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to a
fair trial. . . . The two steps of [our] analysis are sepa-
rate and distinct, and we may reject the claim if we
conclude that the defendant has failed to establish
either prong.’’ (Citations omitted; internal quotation
marks omitted.) State v. Papantoniou, supra, 185 Conn.
App. 110–11. A reviewing court need not conduct the
first step of the analysis if it determines that, even if
the prosecutor’s conduct was improper, it did not
deprive the defendant of a fair trial. State v. Hickey,
135 Conn. App. 532, 554, 43 A.3d 701, cert. denied, 306
Conn. 901, 52 A.3d 728 (2012).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . When making closing arguments to the
jury, [however] [c]ounsel must be allowed a generous
latitude in argument, as the limits of legitimate argu-
ment and fair comment cannot be determined precisely
by rule and line, and something must be allowed for
the zeal of counsel in the heat of argument. . . . Thus,
as the state’s advocate, a prosecutor may argue the
state’s case forcefully, [provided the argument is] fair
and based upon the facts in evidence and the reasonable
inferences to be drawn therefrom.’’ State v. Reddick,
174 Conn. App. 536, 559, 166 A.3d 754, cert. denied, 327
Conn. 921, 171 A.3d 58 (2017), and cert. denied,
U.S. , 138 S. Ct. 1027, 200 L. Ed. 2d 285 (2018).
‘‘[W]hen reviewing the propriety of a prosecutor’s state-
ments, we do not scrutinize each individual comment
in a vacuum but, rather, review the comments com-
plained of in the context of the entire trial.’’ (Internal
quotation marks omitted.) State v. Holmes, 169 Conn.
App. 1, 11, 148 A.3d 581, cert. denied, 323 Conn. 951,
151 A.3d 847 (2016). We address each of the defendant’s
claims of prosecutorial impropriety in turn.
A
The defendant first argues that the prosecutor mis-
stated the law by urging the jury to consider evidence
related to the risk of injury charge under § 53-21 (a)
(1) when discussing the § 53-21 (a) (2) charge.
Specifically, during closing argument, the prosecutor
stated: ‘‘[The victim] said . . . that [the defendant]
exposed his penis and was pulling her head towards
him and telling her to, suck it, and she turned her head
away and was screaming. . . . And does being exposed
to sexual contact by her father in that manner and being
asked to suck his penis, is that gonna affect her health
and morals . . . .’’
‘‘It is well settled that [c]ounsel may comment upon
facts properly in evidence and upon reasonable infer-
ences to be drawn from them.’’ (Internal quotation
marks omitted.) State v. Chankar, 173 Conn. App. 227,
250, 162 A.3d 756, cert. denied, 326 Conn. 914, 173 A.3d
390 (2017). ‘‘Furthermore, prosecutors are not permit-
ted to misstate the law.’’ (Internal quotation marks omit-
ted.) State v. Walton, 175 Conn. App. 642, 648, 168 A.3d
652, cert. denied, 327 Conn. 970, 173 A.3d 390 (2017).
After reviewing the record, we are unpersuaded that
the prosecutor’s remarks were improper. During clos-
ing argument, the state highlighted the difference
between the two risk of injury to a child charges, stating,
in relevant part: ‘‘This third count is risk of injury under
what we say a sexual contact risk of injury. There’s
two counts of risk of injury and they’re—and they’re
very different.
‘‘The first one has to do with sexual contact, and that’s
when a person has sexual contact—when a person has
contact with the intimate parts of a child under the age
of sixteen, in a sexual and indecent manner likely to
impair the health or morals of such child. . . .
‘‘Risk of injury, the second count, is what we call a
situational risk. Situational risk is did this situation
affect the child. Specifically . . . it’s when a person
places a child under the age of sixteen in a situation
that the morals of said child were likely to be impaired.
It’s a very different thing than the sexual contact, risk
of injury in count three. It’s a situation.’’ (Emphasis
added.)
When considering these additional statements, it is
apparent that the state attempted to delineate the two
separate risk of injury charges and did not misstate the
law. Rather, the prosecutor correctly stated that the
sexual contact itself must impair the health or morals
of a child to support a conviction under § 53-21 (a)
(2). Although the state may have mentioned evidence
pertaining to the § 53-21 (a) (1) charge when discussing
the § 53-21 (a) (2) charge, the defendant has failed to
cite to any authority which suggests that the state is
required at closing argument to neatly arrange evidence
introduced at trial according to what charge it supports.
To the contrary, our case law makes clear that closing
argument is not a precise exercise. Moreover, the defen-
dant failed to object to the prosecutor’s statement, sug-
gesting that the defendant did not view the remarks as
improper at the time they were made. As a result, we
conclude that the prosecutor’s statement was not
improper.
B
The defendant next argues that the prosecutor
improperly disclosed her own opinion regarding the
credibility of a witness to the jury during rebuttal clos-
ing argument. Specifically, the prosecutor said, ‘‘[o]ne
thing makes this, in my opinion, and only my opinion
because you are the judges of the facts . . . [t]hat of
a sexual nature rather than an innocent nature. Specifi-
cally in—in a context of [the victim’s sister], she was
asleep and that sexual contact started.’’ (Emphasis
added.)
‘‘The prosecutor may not express his opinion, directly
or indirectly, as to the credibility of the witnesses. . . .
Nor should a prosecutor express his opinion, directly
or indirectly, as to the guilt of the defendant. . . . 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.’’ (Internal quotation marks omitted.) State v.
Warholic, 278 Conn. 354, 363, 897 A.2d 569 (2006).
‘‘Although there are restrictions on a prosecutor’s
argument, [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 there-
from. . . . We must give the jury the credit of being
able to differentiate between argument on the evidence
and attempts to persuade them to draw inferences in
the state’s favor, on one hand, and improper unsworn
testimony, with the suggestion of secret knowledge, on
the other hand.’’ (Internal quotation marks omitted.)
State v. Chankar, supra, 173 Conn. App. 251.
Our review of the record leads us to conclude that the
prosecutor’s remark was not improper.6 The prosecutor
was commenting on evidence presented at trial that
the victim’s sister was touched inappropriately by the
defendant while sleeping. In light of this evidence, the
prosecutor urged the jury to infer that the defendant’s
touching of the victim was not accidental as he sug-
gested, but sexual in nature. The prosecutor’s use of
the phrase ‘‘in my opinion’’ in this context does not
raise the concern of improper unsworn testimony or
secret knowledge reaching the ears of the jury. Rather,
these comments were an invitation for the jury to draw
commonsense inferences on the basis of evidence pre-
sented at trial. We also note that the defendant did not
object to this statement either, once again creating a
suggestion that the defendant did not view the remarks
as improper at the time they were made. Accordingly,
we conclude that the prosecutor’s remarks were not
improper.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2
General Statutes § 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 class C felony . . . .’’
3
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in [General Statutes
§] 53a-65, of a child under the age of sixteen years or subjects a child under
sixteen years of age to contact with the intimate parts of such person, in
a sexual and indecent manner likely to impair the health or morals of such
child . . . shall be guilty of . . . a class B felony . . . .’’
4
‘‘We acknowledge that the defendant’s failure to pursue a motion for a
bill of particulars complicates this inquiry.’’ State v. Flynn, 14 Conn. App.
10, 17, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L.
Ed. 2d 217 (1988); see also State v. Schovanec, supra, 326 Conn. 328 n.7
(defendant’s failure to request bill of particulars and failure to raise double
jeopardy claim before trial court ‘‘contributed to the ambiguity that is now
present in the record’’).
5
When discussing the situational risk charge under § 53-21 (a) (1), the
state argued that ‘‘[the victim] was trapped up against the wall, that her
body [was] being touched inappropriately by her father and having to try
and have her suck his penis. That’s—of all those factors and some other
ones like [it], being six years old, and it being late at night, and being in
this room, and not having anybody to help and having to scream out to
your mother . . . all of those things go into this situation . . . .’’ (Emphasis
added.) In essence, the defendant argues that the jury could have been
misled to consider the inappropriate touching in convicting him under § 53-
21 (a) (1).
Similarly, the defendant notes that during rebuttal closing argument, the
state asserted: ‘‘[F]irst of all I think I could have a hundred jurors sit here
and—and describe the penetration into a child’s vagina with the fingers by
a father, that’s—is that indecent, is that sexual. But then you add on top of
that this asking [her] to suck the penis—his penis, and she consistently said
that.’’ The defendant argues that this statement could have led the jury to
consider the defendant asking the victim to suck his penis when deliberating
the element of § 53-21 (a) (2) that requires an inappropriate touching to be
sexual in nature.
Finally, the defendant broadly asserts that the state comingled evidence
during closing argument when it urged the jury to consider corroborating
evidence.
6
We acknowledge, and the state concedes, that it nonetheless is preferable
that a prosecutor refrain from the use of the phrase ‘‘in my opinion.’’ See
State v. Gibson, 302 Conn. 653, 660, 31 A.3d 346 (2011) (acknowledging that
prosecutors should avoid phrases beginning with pronoun ‘‘I’’).