State v. Roy D. L.

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. ROY D. L.*
(SC 20152)
Robinson, C. J., and McDonald, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted, after a trial to the court, of sexual assault in the first degree,
sexual assault in the fourth degree, and risk of injury to a child in
connection with the sexual abuse of his daughter, R, when she was
ten years old, the defendant appealed to this court. During a forensic
interview conducted in response to R’s statement to a camp counselor
that the defendant had been touching her inappropriately, R stated that
the defendant had on multiple occasions touched her vagina and vaginal
area. R also reported that the defendant’s conduct caused her to experi-
ence pain and made her feel uncomfortable. At trial, the court admitted,
over defense counsel’s objection, a video recording of the forensic inter-
view, and the defendant, through his own testimony, denied inappropri-
ately touching R. In addition, the defendant presented the testimony of
his sister and former girlfriend, S, both of whom testified that R experi-
enced dry skin around her vaginal area. S testified that the defendant
supervised R as she cleaned herself but did not touch her directly.
The court found R’s account to be credible and rejected the contrary
testimony offered by the defendant. Held:
1. The trial court did not abuse its discretion in admitting the video recording
of R’s forensic interview into evidence under the medical treatment
exception to the hearsay rule: the interview took place in a hospital,
during which a forensic interviewer asked R about her physical and
mental well-being, and the interviewer testified at the defendant’s trial
that, as a result of the substance of R’s statements during the interview,
she encouraged a medical examination of and therapy for R; accordingly,
on the basis of R’s statements and the circumstances in which they
were made, including the location of the interview and the nature of
the interviewer’s questions, an objective observer reasonably could infer
that R’s statements were made for the purpose of receiving medical
treatment and were pertinent to that end.
2. The defendant could not prevail on his claim that he was deprived of a
fair trial on the ground that the prosecutor improperly referred to facts
not in evidence and commented on the credibility of a witness insofar
as he mischaracterized the testimony of J, the defendant’s former girl-
friend, by stating that J had previously admitted that she saw the defen-
dant inappropriately touch R: even if the prosecutor’s statements were
improper, this court was provided with the requisite assurance that the
defendant was not deprived of a fair trial, as the trial court, which was
the trier of fact, expressly rejected the allegedly improper statements,
it having acknowledged, following defense counsel’s objection to the
prosecutor’s remarks concerning J, the concerns that motivated the
objection and having stated that it would not consider the prosecutor’s
statements in determining the defendant’s guilt; moreover, the court
noted that, if the prosecutor’s comments regarding J had been made
during a jury trial, it would have instructed the jury that it was its
recollection of the evidence that controlled, and there was no evidence
that the court failed to follow its own instructions.
3. The defendant could not prevail on his claims that the evidence was
insufficient to prove that he engaged in the criminal conduct described
by R during her forensic interview and at trial because he presented
witnesses who contradicted R’s testimony, and that the evidence was
insufficient to prove that he acted with the intent to degrade or humiliate
R, or that he gained sexual gratification from engaging in the conduct
in question, for purposes of his conviction of sexual assault in the
fourth degree: the trial court credited R’s testimony and discredited the
contradictory testimony offered by the defense, and R’s testimony was
sufficient to support the court’s conclusion that the defendant engaged
in the criminal conduct on which his conviction was based; moreover,
there was sufficient evidence to establish that the defendant acted with
the necessary intent to be convicted of sexual assault in the fourth
degree, as the evidence adduced by the state, including R’s testimony,
was sufficient to support the trial court’s conclusions that the defen-
dant’s contact with R’s intimate parts, despite her repeated pleas to him
that he stop, was made for the purpose of degrading or humiliating her,
and that the defendant acted for the purpose of his sexual gratification.
4. Contrary to the defendant’s claim, the statutes criminalizing sexual assault
in the first degree and risk of injury to a child were not unconstitutionally
vague as applied to the defendant’s conduct; the language of those
statutes and the relevant judicial decisions interpreting them provide a
person of ordinary intelligence with fair notice that the digital penetra-
tion of a child’s vagina and the touching of a child’s vagina with a rag
in a sexual and indecent manner are criminally prohibited.
Argued January 14—officially released July 28, 2021**
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of sexual assault in the
third degree, sexual assault in the fourth degree, and
risk of injury to a child, and one count of the crime of
sexual assault in the first degree, brought to the Supe-
rior Court in the judicial district of Hartford and tried
to the court, Gold, J.; thereafter, the court, Gold, J.,
granted the defendant’s motion for a judgment of acquit-
tal as to both counts of sexual assault in the third degree;
subsequently, finding of guilt with respect to two counts
of risk of injury to a child and one count each of sexual
assault in the first degree and sexual assault in the
fourth degree; thereafter, the court, Gold, J., vacated
the defendant’s conviction as to one count of risk of
injury to a child and rendered judgment of conviction,
from which the defendant appealed to this court. Affirmed.
Trent A. LaLima, with whom, on the brief, was
Hubert J. Santos, for the appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, Gail P. Hardy, former state’s attorney,
and David L. Zagaja, senior assistant state’s attorney,
for the appellee (state).
Opinion
KAHN, J. Following a trial to the court, Gold, J., the
defendant, Roy D. L., was convicted of sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (2), sexual assault in the fourth degree in violation
of General Statutes § 53a-73a (a) (1) (A), and risk of
injury to a child in violation of General Statutes § 53-
21 (a) for the sexual abuse of his daughter, R. On appeal,1
the defendant claims that (1) the trial court abused its
discretion in admitting into evidence a video recording
of R’s forensic interview under the medical treatment
exception to the hearsay rule, (2) the prosecutor
improperly introduced facts not in evidence and com-
mented on the credibility of a witness during closing
argument, thereby depriving him of a fair trial, (3) the
evidence presented at trial was insufficient to support
his convictions, and (4) the statutes criminalizing sexual
assault in the first degree and risk of injury to a child
are unconstitutionally vague as applied to his conduct.
We disagree with each of the defendant’s claims and,
accordingly, affirm the judgment of the trial court.
The following facts, which are either undisputed or
reasonably could have been found by the trial court,
and procedural history are relevant to this appeal. The
defendant’s conviction stems from his sexual contact
with R in 2015, when she was ten years old. The defen-
dant’s inappropriate touching of R first came to light
in 2008, when R, who was just three years old at the
time, reported to an employee of her school that the
defendant had ‘‘hurt her pooky,’’ referring to her vagina.
The school reported R’s statement to the Department
of Children and Families (department), which immedi-
ately opened an investigation. That day, a representative
of the department spoke with the defendant, who stated
that R had a medical condition that required him to
regularly clean her vaginal area with a cloth and Vase-
line. The defendant claimed that he ‘‘was the only one
[who] knew how to clean [R’s] genitals.’’
During the course of the department’s investigation,
R was examined by Audrey Courtney, an advanced prac-
tice registered nurse at the Saint Francis Hospital Chil-
dren’s Advocacy Center (Children’s Advocacy Center).
At trial, Courtney testified that, prior to her examination
of R, the defendant described to her ‘‘some hygiene
practices where he was separating [R’s] labia after he
would wash her.’’ Courtney testified that, during the
examination, she did not observe any condition on R’s
skin that would have necessitated the defendant’s con-
duct. In the hopes of steering the defendant toward
more appropriate and less intrusive hygiene practices,
Courtney recommended to the defendant that he stop
physically cleaning R’s vaginal area and use a sitz bath
instead.
As a part of its investigation, the department filed a
neglect petition against the defendant. In the subse-
quent proceedings, the defendant signed a written
agreement in which he committed to stop physically
cleaning R’s vaginal area and acknowledged that the
cleaning practices recommended by the Children’s
Advocacy Center and R’s pediatrician were more appro-
priate.2 According to R’s mother, the defendant stopped
bathing R after the signing of the agreement, and she
assisted R with her daily hygiene until she was eight
years old. In 2013, the defendant and R’s mother sepa-
rated, and R began splitting time between her mother’s
residence and the defendant’s residence.
In July, 2015, when R was ten years old, she reported
to a camp counselor that the defendant had been
‘‘touching’’ her. The counselor reported R’s statement to
the department, and a second investigation was opened
into the defendant’s conduct. On August 19, 2015, R
was once again taken to the Children’s Advocacy Center
where she participated in a forensic interview con-
ducted by Lindsay Craft, a trained forensic interviewer.
During that interview, R told Craft that, while she was
staying at his home, the defendant had, on multiple
occasions over the prior year, touched her vagina and
vaginal area after she had showered. R described how
the defendant, using a rag, would spread Vaseline over
her entire naked body and penetrate her vagina using
his fingers. R told Craft that the defendant’s conduct
caused her physical pain and made her feel uncomfort-
able.
The defendant was subsequently arrested and
charged with one count of sexual assault in the first
degree, two counts of sexual assault in the third degree,
two counts of sexual assault in the fourth degree, and
two counts of risk of injury to a child.3 The defendant
affirmatively elected a bench trial. At trial, the court
admitted, over defense counsel’s objection, a video
recording of R’s forensic interview in its entirety pursu-
ant to the medical treatment exception to the hearsay
rule. See Conn. Code Evid. § 8-3 (5).
At the trial’s conclusion, the court found the defen-
dant guilty of one count of sexual assault in the first
degree, one count of sexual assault in the fourth degree,
and two counts of risk of injury to a child.4 In its oral
decision, the trial court expressly credited R’s testi-
mony and rejected the defendant’s contention that R’s
‘‘account [was] a wholesale fabrication’’ and that he
was ‘‘being set up by R’s mother and [the department]
. . . .’’ The trial court sentenced the defendant to a
total effective sentence of fifteen years of imprison-
ment, execution suspended after nine years, followed
by twenty years of probation and one year of special
parole. The defendant was also ordered to register as
a sex offender. The defendant subsequently appealed
to this court. Additional facts and procedural history
will be set forth as necessary.
In the present appeal, the defendant raises four sepa-
rate claims of error. First, the defendant argues that
the trial court abused its discretion by admitting the
video recording of the forensic interview of R into evi-
dence under the medical treatment exception to the
hearsay rule because the interview ‘‘had virtually no
medical purpose . . . .’’5 Second, the defendant con-
tends that the prosecutor engaged in prosecutorial
impropriety during his closing argument by mischarac-
terizing the testimony of Jessica Jackson, the defen-
dant’s former girlfriend, thereby depriving him of a fair
trial. Third, the defendant argues that the state’s evi-
dence was insufficient to support his conviction on all
counts. Finally, the defendant contends that the statutes
criminalizing sexual assault in the first degree, § 53a-
70 (a) (2), and risk of injury to a child, § 53-21 (a) (2),
are unconstitutionally vague as applied to his conduct.
We address these claims in turn.
I
The defendant argues that, because the forensic inter-
view of R had ‘‘virtually no medical purpose’’ and was
conducted to ‘‘create admissible, inculpatory evidence,’’
the video recording was inadmissible under our case
law interpreting the scope of the medical treatment
exception contained in § 8-3 (5) of the Connecticut
Code of Evidence. According to the defendant, he was
prejudiced by the admission of the video recording
because it corroborated R’s in-court testimony and
caused the trial court to credit R’s testimony over the
contradictory testimony presented by the defendant’s
witnesses. The state, in response, argues that the video
recording of the interview is admissible under the
exception because medical treatment or diagnosis was
a purpose of the interview, and, given the circumstances
surrounding the interview, R ‘‘necessarily would have
understood the interview to have a medical purpose.’’
We agree with the state.
The following additional facts and procedural history
are relevant to our consideration of this claim. We begin
by describing the contents of the video recording of R’s
forensic interview at the Children’s Advocacy Center.
At the outset of the interview, Craft introduced herself
to R and explained that her job was to talk to children
‘‘about things that have happened to them . . . that
just made them feel uncomfortable.’’ Craft told R that
people she worked with were observing the interview
through a one-way mirror and that their observation of
the interview would prevent her from having to ‘‘talk
about the same thing over and over and over again.’’
Craft then stated that the observers ‘‘want to make sure
that [children’s] bodies are okay, that [the children are]
okay.’’ Craft also noted that she worked for the hospital,
not the department.
During the interview, R described the defendant’s
practice of touching her vaginal area with a rag after
she showered at the defendant’s home. In response
to Craft’s questions about the precise nature of the
defendant’s conduct, R stated that, after she exits the
shower, the defendant frequently directs her to lie
naked on his bed, and then applies Vaseline to her entire
body, including her vagina, using a rag. R told Craft
that it was physically painful, stating that the defendant
‘‘uses a rough rag and . . . goes in hard and sometimes
when he’s done doing it, it aches hard.’’ R also told
Craft that the defendant ‘‘digs through it and its hurts’’
and that ‘‘he [takes] the rag and he goes through it in
like the dark spots . . . .’’ Toward the end of the inter-
view, Craft asked R if she ‘‘worries about [her] body
because of [what happened]?’’ R responded, ‘‘yes,’’ and
then wondered aloud, ‘‘am I going to have to survive
this when I’m older?’’
During trial, the prosecutor moved to admit the
entirety of the video recording under the medical treat-
ment exception to the hearsay rule. In support of this
motion, the prosecutor presented testimony from Craft.6
Craft testified that she is a trained social worker who, at
the time of her employment at the Children’s Advocacy
Center, was responsible for conducting forensic inter-
views of children. Craft noted that the ‘‘purpose of a
forensic interview is for medical treatment and diagno-
sis of the child’’ and that, during her interview of R,
she specifically inquired about R’s physical and mental
well-being. Craft further remarked that, following her
interview with R, she ‘‘strongly encouraged . . . a med-
ical examination, as well as . . . therapy for the child.’’
Craft explained that she made this recommendation
because R ‘‘reported significant pain on multiple inci-
dents . . . she also had concerns about her body . . .
[and she] worried . . . [it] was going to happen
again . . . .’’
Defense counsel objected to the admission of the
video recording and argued that the interview was ‘‘a
fig leaf to cover [a] law enforcement practice’’ and that,
‘‘while medical treatment does not need to even be the
primary purpose,’’ the state failed to even satisfy ‘‘a de
minimis test.’’7 In response, the prosecutor argued that
the video recording was admissible because Craft estab-
lished that the purpose of the interview, ‘‘at least in
part,’’ was ‘‘medical treatment . . . .’’ The trial court,
citing State v. Griswold, 160 Conn. App. 528, 127 A.3d
189, cert. denied, 320 Conn. 907, 128 A.3d 952 (2015),
and State v. Eddie N. C., 178 Conn. App. 147, 174 A.3d
803 (2017), cert. denied, 327 Conn. 1000, 176 A.3d 558(2018), as well as other Appellate Court decisions, con-
cluded that the video recording satisfied the standard
for admissibility and overruled defense counsel’s objec-
tion.
Our standard of review for evidentiary claims is well
settled. ‘‘We review the trial court’s decision to admit
[or exclude] evidence, if premised on a correct view of
the law . . . for an abuse of discretion. . . . We will
make every reasonable presumption in favor of uphold-
ing the trial court’s ruling, and only upset it for a mani-
fest abuse of discretion. . . . The trial court has wide
discretion to determine the relevancy [and admissibil-
ity] of evidence . . . . In order to establish reversible
error on an evidentiary impropriety . . . the defendant
must prove both an abuse of discretion and a harm that
resulted from such abuse.’’ (Citations omitted; internal
quotation marks omitted.) State v. Cecil J., 291 Conn.
813, 818–19, 970 A.2d 710 (2009).
‘‘It is well settled that . . . [a]n out-of-court state-
ment offered to prove the truth of the matter asserted
is hearsay and is generally inadmissible unless an excep-
tion to the general rule applies.’’ (Internal quotation
marks omitted.) State v. Carrion, 313 Conn. 823, 837,
100 A.3d 361 (2014); see also Conn. Code Evid. § 8-3
(5). Section 8-3 (5) of the Connecticut Code of Evidence
excludes from the hearsay rule ‘‘[a] statement made for
purposes of obtaining a medical diagnosis or treatment
and describing medical history, or past or present symp-
toms, pain, or sensations, or the inception or general
character of the cause or external source thereof, inso-
far as reasonably pertinent to the medical diagnosis or
treatment.’’ The rationale for admitting such statements
‘‘is that the patient’s desire to recover his health . . .
will restrain him from giving inaccurate statements to
[those who] advise or treat him.’’ (Internal quotation
marks omitted.) State v. Cruz, 260 Conn. 1, 7, 792 A.2d
823 (2002).
As we recently noted in State v. Manuel T., 337 Conn.
429, A.3d (2020), § 8-3 (5) ‘‘sets forth . . . a
two-pronged test. The first [prong] addresses the declar-
ant’s purpose or motivation in the making of the state-
ment, and the second addresses the pertinence of the
statement to that end.’’ Id., 439. The application of the
medical treatment exception, therefore, turns in the
first instance on the declarant’s state of mind and the
purpose for which each individual statement was made.
See id., 447 (noting that ‘‘the medical treatment excep-
tion focuses on the declarant’s [understanding of the]
purpose in making individual statements’’). The pur-
pose prong is satisfied so long as the declarant’s state-
ment was motivated, at least in part, by a desire to
obtain medical treatment or a diagnosis. See id., 440–41
n.12; see also State v. Griswold, supra, 160 Conn. App.
552–53 (noting that medical treatment or diagnosis does
not have to be principal motivation of statement for it
to be admissible under medical treatment exception).
In cases involving juveniles, the Appellate Court has
consistently recognized that the motivation behind a
juvenile’s statement can be inferred from both the con-
tent of the statement and the surrounding circum-
stances. See, e.g., State v. Griswold, supra, 160 Conn.
App. 556 (‘‘[a]lthough [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’’
(internal quotation marks omitted)); see also State v.
Ezequiel R. R., 184 Conn. App. 55, 69, 194 A.3d 873(concluding that ‘‘circumstances leading up to the vic-
tim’s interview . . . could lead an objective observer
to reasonably infer that the victim’s statements were
given in order to obtain medical treatment and diagno-
sis’’), cert. granted, 330 Conn. 945, 196 A.3d 804 (2018)
(appeal dismissed February 15, 2019); State v. Telford,
108 Conn. App. 435, 443, 948 A.2d 350 (testimony of
twelve year old declarant and circumstances sur-
rounding interview permitted inference that statements
were made for purpose of medical treatment), cert.
denied, 289 Conn. 905, 957 A.2d 875 (2008); State v.
Donald M., 113 Conn. App. 63, 71, 966 A.2d 266 (state-
ments by interviewer supported inference that child
understood interview had medical purpose), cert.
denied, 291 Conn. 910, 969 A.2d 174 (2009). Although
some jurisdictions have refrained from adopting such
an approach; see, e.g., State v. Coates, 405 Md. 131,
143–45, 950 A.2d 114 (2008); the overwhelming majority
of jurisdictions have recognized that the purpose of a
juvenile declarant’s statement can be inferred under
such circumstances. See, e.g., United States v. Kootswa-
tewa, 893 F.3d 1127, 1132–34 (9th Cir. 2018) (evidence
that juvenile’s statements were made ‘‘in response to
questions posed by a medical professional during a
medical examination conducted at a medical facility’’
supported inference that juvenile understood she was
providing information for diagnosis or treatment); see
also United States v. Norman T., 129 F.3d 1099, 1101,
1105–1106 (10th Cir. 1997) (evidence that five year old
declarant complained of pain to doctor in hospital sup-
ported inference that declarant was seeking medical
treatment), cert. denied, 523 U.S. 1031, 118 S. Ct. 1322,
140 L. Ed. 2d 485 (1998); State v. Letendre, 161 N.H.
370, 372, 374–75, 13 A.3d 249 (2011) (circumstances
surrounding statements supported inference that ten
year old victim’s statements were made for purpose
of obtaining medical diagnosis or treatment); State v.
McLeod, 937 S.W.2d 867, 871–72 (Tenn. 1996) (evidence
that eleven year old declarant discussed her medical
history and circumstances of alleged assault with doc-
tor supported inference that statements were made for
purpose of medical treatment).
We conclude that the reasoning adopted by the major-
ity of jurisdictions is persuasive and consistent with our
case law concerning the medical treatment exception
to the hearsay rule. In Manuel T., we noted that ‘‘the
proper application of the existing medical treatment
hearsay exception . . . [can] ensure the reliability of
. . . statements made at a forensic interview.’’ State v.
Manuel T., supra, 337 Conn. 448. In cases in which the
substance of a juvenile declarant’s statement and the
circumstances surrounding the statement support an
inference that the statement was made in furtherance
of obtaining medical treatment, a trial court can reason-
ably conclude that the purpose prong of the medical
treatment exception is satisfied. See United States v.
Kootswatewa, supra, 893 F.3d 1133; see also State v.
Telford, supra, 108 Conn. App. 441 (statements admissi-
ble under medical treatment exception if ‘‘objective
circumstances of the interview would support an infer-
ence that a juvenile declarant knew of its medical pur-
pose’’).
As we have previously noted, the rationale behind the
medical treatment exception is that a person’s ‘‘desire
to recover his [or her] health’’ incentivizes them to tell
the truth to individuals involved in their medical care.
(Internal quotation marks omitted.) State v. Cruz,
supra, 260 Conn. 7. We agree with the Appellate Court
that the presumption that such statements are reliable
applies to statements made during a forensic interview
when the surrounding circumstances ‘‘could lead an
objective observer to reasonably infer that the victim’s
statements were given in order to obtain medical treat-
ment and diagnosis.’’8 State v. Ezequiel R. R., supra,
184 Conn. App. 69; see also State v. Abraham, 181 Conn.
App. 703, 713, 187 A.3d 445 (‘‘the statements of a declar-
ant may be admissible under the medical treatment
exception if made in circumstances from which it rea-
sonably may be inferred that the declarant understands
that the interview has a medical purpose’’ (emphasis
in original)), cert. denied, 329 Conn. 908, 186 A.3d 12(2018).
With this principle in mind, we consider whether the
trial court abused its discretion in admitting the video
recording of the forensic interview of R under the medi-
cal treatment exception.9 Craft’s interview with R took
place in a hospital. At the very beginning of the inter-
view, Craft told R that she ‘‘work[ed] for the hospital’’
and that people who ‘‘[she] work[s] with’’ were observ-
ing the interview because they ‘‘want to make sure that
[children’s] bodies are okay and that [the children are]
okay . . . .’’ During the course of the interview, Craft
asked R about her physical and mental well-being. In
response to these questions, R stated that her vagina
‘‘ache[d] hard’’ as a result of the defendant ‘‘dig[ging]
through’’ the ‘‘deep dark’’ part. R also stated that she
was ‘‘scared a lot’’ due to the defendant’s conduct and
that she worried about the impact the abuse would
have on her body. R also expressed concern that she
would ‘‘have to survive this when I’m older . . . .’’
At trial, Craft testified that as a result of R’s state-
ments during the interview, she ‘‘strongly encouraged
. . . a medical examination, as well as . . . therapy
for the child.’’ Craft further testified that, although she
does not always make a medical referral after each
interview, she did so in this case because R ‘‘reported
significant pain on multiple incidents . . . she also had
concerns about her body . . . [and she] worried . . .
[it] was going to happen again . . . .’’ Based on the
substance of R’s statements and the circumstances in
which they were made, including the location of the
interview and the nature of Craft’s questions, an objec-
tive observer could reasonably infer that R’s statements
were both made for the purpose of receiving medical
treatment and pertinent to that end. We, therefore, con-
clude that the trial court did not abuse its discretion in
admitting the video recording of the forensic interview
under the medical treatment exception to the hear-
say rule.
II
The defendant next claims that the prosecutor
deprived him of his right to a fair trial by improperly
referring to facts not in evidence and by expressing his
opinion regarding the credibility of a witness during the
course of closing arguments. Specifically, the defendant
contends that the prosecutor mischaracterized the testi-
mony of Jackson, the defendant’s former girlfriend,
when he stated that she had previously admitted to
having seen the defendant inappropriately touch R. In
response, the state argues that the prosecutor’s state-
ment was proper because it was based on a reasonable
inference drawn from Jackson’s testimony and, ‘‘at
worst, [was] an honest recollection of the evidence
based on the evasiveness of Jackson’s testimony
. . . .’’ In the alternative, the state contends that, even
if the statement was improper, it did not deprive the
defendant of a fair trial. Having reviewed the record,
we agree with the state and conclude that the allegedly
improper remark did not deprive the defendant of a
fair trial.
The following additional facts and procedural history
are relevant to our consideration of the defendant’s
claim. During trial, the prosecutor called Jackson as a
witness. At the beginning of his direct examination, the
prosecutor asked Jackson if she had ever witnessed
the defendant wash R or wipe R’s vaginal area. Jackson
responded in the negative, and the following colloquy
ensued between Jackson and the prosecutor:
‘‘Q. Now . . . did you have a conversation when you
were reached out to by Detective [Jason] Pontz?
‘‘A. Yes.
‘‘Q. And did you acknowledge that—did you tell him
that you did witness that?
‘‘A. No. I can clarify that. Basically, [the defendant]
was just telling [R] what to do to make sure that [she]
was clean.
‘‘Q. Oh, so you’re familiar with what I’m talking about?
‘‘A. Yes, I am.
‘‘Q. Can you describe what you saw?
‘‘A. So, [R] was just [lying] on the bed, and [the defen-
dant] was letting her know what to do to make sure
she was clean.
‘‘Q. How was [the defendant] doing it?
‘‘A. [The defendant] didn’t do it.
‘‘Q. Well, what was being done?
‘‘A. [R] was just wiping with the rag.
‘‘Q. [R] was wiping with a rag. [The defendant] did
not have it in his hand?
‘‘A. No.’’
After asking Jackson for more details about how R
used the rag, the prosecutor asked, ‘‘[a]nd do you recall
having a conversation with my office saying that you
saw [the defendant] wiping R’s vaginal area with the
rag?’’ Jackson responded ‘‘no,’’ and again stated that
she was ‘‘just clarifying that [R] did it. [The defendant]
may have had the rag at one point, but [R] did it.’’
Toward the end of his direct examination, the prosecu-
tor again questioned Jackson about a discrepancy
between her prior statement to the police and her trial
testimony. The following colloquy then ensued between
Jackson and the prosecutor:
‘‘Q. Did you tell [the defendant] what you had told
. . . Pontz or a member of my office?
‘‘A. Yes.
‘‘Q. And how come it’s different today than what you
had told them?
‘‘A. Well, when you called me, I was actually . . . on
my lunch break. I was driving. I was on the phone, so
it was a bad time.
‘‘Q. Would you agree that what you told me was
essentially what you told . . . Pontz previously?
‘‘A. Yes.
‘‘Q. That you were somewhat put on the spot when
you told me that information?
‘‘A. Right.
‘‘Q. Even though you said the same thing to . . .
Pontz a week prior?
‘‘A. Yes.
‘‘Q. But today you have the ability to clarify all of
that [information]?
‘‘A. Yes, and that’s because I took the time to recall
certain events.
‘‘Q. And none of that—none of your clarification was
influenced by you speaking with [the defendant]?
‘‘A. Not at all.’’
During his closing argument, the prosecutor stated
that ‘‘Jackson came in and acknowledged that she wit-
nessed the defendant engaged in this conduct [of clean-
ing R’s vagina]. And she told . . . Pontz . . . and she
told me that information.’’ Defense counsel immediately
objected and moved for a mistrial, arguing that the
prosecutor’s statement was not supported by facts in
evidence and represented his personal opinion about
the veracity of Jackson’s testimony and her credibility
as a witness. The trial court denied the motion and
stated the following in support of its decision: ‘‘I know
what . . . Jackson testified to and what she didn’t tes-
tify to. And I’m going to make my decision based on
what she testified to. . . . I understand the difference.
This is an argument to the court. The court is not going
to, you know, fall victim to the concerns that you’ve
expressed in your motion for a mistrial. . . . And I
have the luxury in this case to be able to rehear the
testimony of the witness to the extent I have any uncer-
tainty about precisely what . . . Jackson said or didn’t
say. . . . So I understand what . . . Jackson testified
to, and I understand that [the prosecutor] may have
attempted to bring into question the veracity of what
she was saying on the stand. I understand also, however,
that, even with that effort to impeach, the opposite
doesn’t become true by virtue of the impeachment. I
understand that. . . . The motion for a mistrial is
denied. The court did not, incidentally, take the words
of [the prosecutor] in the way that [defense counsel]
has described them. But, for the reasons I’ve stated, I
will render my decision based on the testimony that
the witnesses have given and not any part of the closing
argument that may have strayed intentionally or inad-
vertently, if at all, from the rules that govern the argu-
ments of counsel.’’
We begin our analysis of the defendant’s claim by
setting out the legal principles that govern our consider-
ation of claims of prosecutorial impropriety. ‘‘[T]he
touchstone of due process analysis in cases of alleged
prosecutorial [impropriety] is the fairness of the trial,
and not the culpability of the prosecutor. . . . The
issue is whether the prosecutor’s conduct so infected
the trial with unfairness as to make the resulting convic-
tion a denial of due process. . . . In determining
whether the defendant was denied a fair trial . . . we
must view the prosecutor’s comments in the context
of the entire trial.’’ (Internal quotation marks omitted.)
State v. Santiago, 269 Conn. 726, 733–34, 850 A.2d
199 (2004).
As we previously have recognized, ‘‘[p]rosecutorial
[impropriety] of [a] constitutional magnitude can occur
in the course of closing arguments. . . . In determining
whether such [impropriety] has occurred, the reviewing
court must give due deference to the fact that [c]ounsel
must be allowed a generous latitude in argument, as
the limits of legitimate argument and fair comment can-
not be determined precisely by rule and line, and some-
thing must be allowed for the zeal of counsel in the
heat of argument. . . . While the privilege of counsel
in addressing the jury should not be too closely nar-
rowed or unduly hampered, it must never be used as
a license to state, or to comment upon, or to suggest
an inference from, facts not in evidence, or to present
matters which the jury ha[s] no right to consider.’’
(Internal quotation marks omitted.) State v. Otto, 305
Conn. 51, 76–77, 43 A.3d 629 (2012); see also State
v. Williams, 204 Conn. 523, 544, 529 A.2d 653 (1987)
(‘‘[s]tatements as to facts which have not been proven
amount to unsworn testimony that is not the subject
of proper closing argument’’).
Furthermore, ‘‘a prosecutor may not express his own
opinion, directly or indirectly, as to the credibility of
the witnesses. . . . Such expressions of personal opin-
ion are a form of unsworn and unchecked testimony,
and are particularly difficult for the jury to ignore
because of the prosecutor’s special position. . . .
[B]ecause the jury is aware that the prosecutor has
prepared 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.’’ (Internal quotation marks omitted.) State v.
Bermudez, 274 Conn. 581, 590, 876 A.2d 1162 (2005).
Our determination of whether alleged prosecutorial
impropriety deprived a defendant of a fair trial is gov-
erned by a ‘‘two step analytical process.’’ State v. Fauci,
282 Conn. 23, 32, 917 A.2d 978 (2007). ‘‘The two steps are
separate and distinct. . . . We first examine whether
prosecutorial impropriety occurred. . . . Second, if an
impropriety exists, we then examine whether it
deprived the defendant of his due process right to a
fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry.’’ (Citations
omitted.) Id.‘‘The latter part of this two-pronged test is guided by
the factors set forth in State v. Williams, [supra, 204
Conn. 540].’’ State v. Gonzalez, 338 Conn. 108, 125, 257
A.3d 283 (2021). These factors include ‘‘whether (1)
the impropriety was invited by the defense, (2) the
impropriety was severe, (3) the impropriety was fre-
quent, (4) the impropriety was central to a critical issue
in the case, (5) the impropriety was cured or amelio-
rated by a specific jury charge, and (6) the state’s case
against the defendant was weak due to a lack of . . .
evidence.’’ State v. Fauci, supra, 282 Conn. 51. The
burden is on the defendant to establish that the com-
plained of conduct was both improper and so egregious
that it resulted in a denial of due process. See, e.g., State
v. Payne, 303 Conn. 538, 562–63, 34 A.3d 370 (2012).
In this case, we need not decide whether the prosecu-
tor’s statements were improper because, even if they
were, they did not deprive the defendant of a fair trial.
See, e.g., State v. Gibson, 302 Conn. 653, 663 n.4, 31
A.3d 346 (2011) (noting that ‘‘this court occasionally
has skipped the first step of [the two step prosecutorial
impropriety] analysis when . . . it was clear that there
was no due process violation’’). Although some of the
Williams factors weigh in the defendant’s favor, the
fact that this case was tried to the court, not before a
jury, is largely dispositive of the defendant’s claim.10
Here, the trier of fact expressly rejected the allegedly
improper statements, and, as a result, we are provided
with the requisite assurance that the defendant was not
deprived of his right to a fair trial.
On appeal from a bench trial, there is a presumption
that the court, acting as the trier of fact, considered
only properly admitted evidence when it rendered its
decision. See State v. Ouellette, 190 Conn. 84, 92, 459
A.2d 1005 (1983) (noting that ‘‘[i]n trials to the court,
where admissible evidence encompasses an improper
as well as a proper purpose, it is presumed that the
court used [the evidence] only for an admissible pur-
pose’’); see also State v. George A., 308 Conn. 274, 290,
63 A.3d 918 (2013). This principle is widely recognized
by both federal and state courts. See, e.g., Harris v.
Rivera, 454 U.S. 339, 346, 102 S. Ct. 460, 70 L. Ed.
2d 530 (1981) (‘‘[i]n bench trials, judges routinely hear
inadmissible evidence that they are presumed to ignore
when making decisions’’); see also United States v.
DNRB, Inc., 895 F.3d 1063, 1068 (8th Cir. 2018) (‘‘we
presume that a judge conducting a bench trial will use
evidence properly, mitigating any prejudice’’); United
States v. Foley, 871 F.2d 235, 240 (1st Cir. 1989) (‘‘in
criminal bench trials, absent an affirmative showing of
prejudice, a trial court is presumed to have considered
only admissible evidence in making its findings’’);
United States v. Martinez, 333 F.2d 80, 82 (2d Cir.)
(noting that ‘‘when a case is tried without a jury, the
error of admitting incompetent evidence will be
regarded harmless, if it is rejected and excluded by the
judge before the decision is made’’ (internal quotation
marks omitted)), cert. denied, 379 U.S. 907, 85 S. Ct.
199, 13 L. Ed. 2d 178 (1964); People v. Mascarenas, 181
Colo. 268, 272, 509 P.2d 303 (1973) (‘‘[i]t is presumed
that a trial judge disregards incompetent evidence’’);
Commonwealth v. Davis, 491 Pa. 363, 372 n.6, 421 A.2d
179 (1980) (‘‘[a] judge, as [fact finder], is presumed
to disregard inadmissible evidence and consider only
competent evidence’’).
Both federal and state courts have also applied the
principles underlying this presumption in cases involv-
ing claims of prosecutorial impropriety during bench
trials. In the absence of a showing of substantial preju-
dice, the trial court is presumed to have disregarded
improper arguments or comments made by the prosecu-
tor when rendering its decision. See, e.g., United States
v. Weldon, 384 F.2d 772, 774 (2d Cir. 1967) (‘‘appellate
courts may presume that improper evidence and com-
ments have been rejected when the trial is to the [c]ourt
alone, at least absent a showing of substantial preju-
dice’’ (emphasis added)); see also United States v. Pres-
ton, 706 F.3d 1106, 1120 (9th Cir. 2013) (‘‘[t]he risk of
improperly influencing a judge by placing the prestige
of the government in favor of or against a witness or
swaying the judge with improper evidence is far less
than in a jury trial’’), rev’d in part on other grounds,
751 F.3d 1008 (9th Cir. 2014); Liggett v. People, 135 P.3d
725, 733–34 (Colo. 2006) (presuming that trial court
did not ‘‘accord weight to the [prosecutor’s] improper
statements in its decision’’ during bench trial); State v.
Smith, 61 Ohio St. 3d. 284, 292, 574 N.E.2d 510 (1991)
(holding that claim of prosecutorial impropriety lacked
merit when trial was to court and presiding judge
‘‘affirmatively rejected the prosecutor’s comments’’),
cert. denied, 502 U.S. 1110, 112 S. Ct. 1211, 117 L. Ed.
2d 449 (1992); Commonwealth v. Harvey, 514 Pa. 531,
537, 526 A.2d 330 (1987) (‘‘we will not assume that
a verdict rendered by a jurist was influenced by [the
prosecutor’s] extraneous prejudicial remarks and com-
ments’’ (emphasis in original)).11
We conclude that this reasoning is persuasive and
consistent with the law of our state. The well estab-
lished presumption is based on our recognition that ‘‘an
experienced trial judge . . . [is] not likely to be
swayed’’ by improperly admitted evidence. State v.
George A., supra, 308 Conn. 290; see also Doe v. Car-
reiro, 94 Conn. App. 626, 640, 894 A.2d 993 (noting
that, ‘‘in court trials, judges are expected, more so than
jurors, to be capable of disregarding incompetent evi-
dence’’), cert. denied, 278 Conn. 914, 899 A.2d 620(2006). We similarly recognize that trial judges, who,
unlike jurors, are well versed in the rules that govern
the arguments of counsel during a trial, are also less
likely to be influenced by improper comments or argu-
ments made by counsel during a bench trial.12
In the present case, following defense counsel’s
objection to the prosecutor’s remarks, the trial court
acknowledged the concerns that motivated the objec-
tion and expressly stated that it would not consider the
prosecutor’s statements when rendering its decision.
The trial court also noted that, had the prosecutor’s
comments been made during a jury trial, the court
would have instructed the jurors that it was their recol-
lection of the evidence that controlled and that they
should disregard ‘‘anything that the lawyers say [that]
is at odds with their recollection . . . .’’ When, as here,
a trial court implicitly sustains an objection to a prose-
cutor’s comment and expressly states that it will not
consider the challenged comment when arriving at its
decision, a defendant is unlikely to meet his burden of
establishing that he was deprived of his right to a fair
trial.13 Given that the record in the present case is devoid
of any evidence that the trial court failed to follow its
own instructions, we conclude that the defendant has
failed to meet this burden.
Although the trial court’s statements provide us with
the requisite assurance that the defendant was not
deprived of his right to a fair trial, we recognize that
some of the Williams factors weigh in the defendant’s
favor. The state concedes in its brief that the prosecu-
tor’s comment was uninvited by the defendant and that
our prior decisions have characterized cases that turn
entirely on the credibility of the sexual assault com-
plainant as ‘‘not particularly strong . . . .’’ See, e.g.,
State v. Jones, 320 Conn. 22, 45, 128 A.3d 431 (2015).
We further acknowledge that the statement at issue
relates directly to the credibility of R’s testimony and
is, as a result, central to a critical issue in the case. See
State v. Maguire, 310 Conn. 535, 561–62, 78 A.3d 828(2013). Finally, to the extent that the allegedly improper
statement was not based on a reasonable inference from
Jackson’s testimony, it could be considered severe. See
State v. Singh, 259 Conn. 693, 717–18, 793 A.2d 226(2002).
Nevertheless, these factors are insufficient to estab-
lish that the prosecutor’s single comment deprived the
defendant of a fair trial under the circumstances. See
State v. Wilson, 308 Conn. 412, 450, 64 A.3d 91 (2013)
(noting that one Williams factor was ‘‘ultimately dispos-
itive of the issue of harmfulness’’); see also State v.
Pereira, 72 Conn. App. 545, 563, 805 A.2d 787 (2002)
(recognizing that Williams factors ‘‘are nonexhaustive,
and do not serve as an arithmetic test for the level of
prejudice flowing from misconduct’’), cert. denied, 262
Conn. 931, 815 A.2d 135 (2003). As we discussed pre-
viously in this opinion, the trial court’s statements in
response to the prosecutor’s remark, as well as the
absence of any evidence that the trial court considered
the remark when arriving at its decision, demonstrate
that the finder of fact was uninfluenced by the alleged
prosecutorial impropriety. The defendant’s claim that
he was deprived of a fair trial, therefore, fails.
III
We next address the defendant’s two claims concern-
ing the sufficiency of the evidence presented at trial.
First, the defendant claims that he is entitled to a judg-
ment of acquittal on all counts because the state’s evi-
dence was insufficient to prove that he engaged in the
underlying criminal conduct described by R during her
forensic interview and trial testimony. According to the
defendant, no reasonable trier of fact could have found
that he inappropriately touched R in 2015, because he
presented three witnesses who contradicted R’s testi-
mony and ‘‘no witnesses confirmed [R’s] allegations
. . . .’’ Second, the defendant claims that the evidence
was insufficient to establish that he acted with the spe-
cific intent necessary to be convicted of sexual assault
in the fourth degree in violation of § 53a-73a (a) (1) (A).
Specifically, the defendant argues that the evidence was
insufficient to prove beyond reasonable doubt that he
acted with the intent to degrade or humiliate R, or
that he gained sexual gratification from engaging in the
conduct in question. The state disagrees, arguing that
the evidence presented at trial was sufficient to support
the defendant’s convictions. We agree with the state.
The following additional facts and procedural history
are relevant to our consideration of the defendant’s
claims. At trial, the defendant testified on his own behalf
and presented the testimony of his former girlfriend,
Chantell Sinclair, and his sister, Claudia Smith. Both
Sinclair and Smith testified that R experienced dry and
irritated skin around her vaginal area. Sinclair specifi-
cally testified that on one occasion, R told her and the
defendant that the skin around her vaginal area was
‘‘burning.’’ According to Sinclair, the defendant super-
vised R as she cleaned herself, but he did not touch
her directly. The defendant, in his testimony, denied
inappropriately touching R in 2015, and accused both
R and her mother of fabricating the allegations.
At the close of the state’s case-in-chief, defense coun-
sel moved for a judgment of acquittal on counts one
through five, claiming that the state’s evidence was
insufficient to support a conviction of sexual assault
in the first, third, or fourth degree.14 The court granted
the defendant’s motion as to both counts of sexual
assault in the third degree, counts two and three, and
denied his motion as to the single count of sexual
assault in the first degree, count one, and the two counts
of sexual assault in the fourth degree, counts four and
five.15 At the close of evidence, defense counsel renewed
the motion for a judgment of acquittal as to counts one,
four, and five. The trial court again denied the motion.
In its oral decision, the trial court articulated its fac-
tual findings and identified the evidentiary basis for its
verdict. The trial court began by noting that ‘‘the state
has proven beyond a reasonable doubt that the defen-
dant . . . did engage . . . in the behavior described
by R in her testimony and in her forensic interview.’’
In reaching this conclusion, the trial court stated that
it ‘‘found R’s account to be credible and . . . rejected
the contrary testimony offered by the defendant . . . .’’
Relying on R’s account of the defendant’s conduct, the
trial court concluded that the state’s evidence was suffi-
cient to establish the defendant’s guilt beyond a reason-
able doubt of sexual assault in the first degree, con-
tained in count one, sexual assault in the fourth degree,
contained in count four, and two counts of risk of injury
to a child, contained in counts six and seven.
‘‘In reviewing the sufficiency of the evidence to sup-
port a criminal conviction we apply a [two part] test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [finder of fact] reason-
ably could have concluded that the cumulative force
of the evidence established guilt beyond a reasonable
doubt. . . .
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [finder of fact’s] verdict of guilty.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Morgan,
274 Conn. 790, 799–800, 877 A.2d 739 (2005); see also
State v. Rhodes, 335 Conn. 226, 233, 249 A.3d 683 (2020)
(noting that defendant asserting insufficiency claim
‘‘carries a difficult burden’’ (internal quotation marks
omitted)).
Moreover, it is well established that ‘‘[w]e may not
substitute our judgment for that of the [finder of fact]
when it comes to evaluating the credibility of a witness.
. . . It is the exclusive province of the [finder] of fact
to weigh conflicting testimony and make determina-
tions of credibility, crediting some, all or none of any
given witness’ testimony. . . . Questions of whether to
believe or to disbelieve a competent witness are beyond
our review.’’ (Internal quotation marks omitted.) State
v. Andrews, 313 Conn. 266, 323, 96 A.3d 1199 (2014).
We first consider the defendant’s broad claim that
the evidence was legally insufficient to sustain his con-
viction on all counts. In support of this claim, the defen-
dant relies entirely on the fact that R’s testimony was
uncorroborated and was contradicted by three ‘‘third
party witnesses . . . .’’ According to the defendant, the
sheer numerical superiority of contradictory testimony
rendered the state’s evidence insufficient as a matter
of law. The defendant’s claim is wholly without merit.
We have repeatedly recognized that ‘‘[t]he issue [of
guilt] is not to be determined solely by counting the
witnesses on one side or the other.’’ (Internal quotation
marks omitted.) State v. Hodge, 153 Conn. 564, 573, 219
A.2d 367 (1966); see also State v. Nerkowski, 184 Conn.
520, 525 n.5, 440 A.2d 195 (1981). The testimony of ‘‘a
single witness is sufficient to support a finding of guilt
beyond a reasonable doubt.’’ State v. Whitaker, 215
Conn. 739, 757 n.18, 578 A.2d 1031 (1990). In sexual
assault cases specifically, we have recognized that a
victim’s uncorroborated testimony, in and of itself, can
be sufficient to establish a defendant’s guilt. See, e.g.,
State v. Stephen J. R., 309 Conn. 586, 595, 72 A.3d 379(2013) (‘‘it is well established that a victim’s testimony
need not be corroborated to be sufficient evidence to
support a conviction’’); see also State v. Monk, 198
Conn. 430, 433, 503 A.2d 591 (1986).
In the present case, the trial court credited R’s testi-
mony and discredited the contradictory testimony pro-
vided by the defendant, two of his former girlfriends,
and his sister. The trial court made its credibility deter-
mination clear in its oral ruling, stating that it ‘‘found R’s
account to be credible and . . . rejected the contrary
testimony offered by the defendant in his own testi-
mony, by witnesses called by him, and in his cross-
examination of other witnesses.’’16 In crediting R’s testi-
mony and discrediting the testimony of other witnesses,
the trial court acted within its authority as the trier of
fact. See, e.g., State v. DeMarco, 311 Conn. 510, 519–20,
88 A.3d 491 (2014) (‘‘[i]t is the exclusive province of
the trier of fact to weigh conflicting testimony and make
determinations of credibility’’ (internal quotation marks
omitted)); see also State v. Hodge, supra, 153 Conn.
572–73. Because R’s testimony was sufficient to support
the trial court’s conclusion that the defendant engaged
in the underlying criminal conduct, the defendant’s
broad sufficiency claim fails. See, e.g., State v. White,
155 Conn. 122, 123, 230 A.2d 18 (1967) (‘‘[t]he credibility
to be accorded the testimony of the victim was for the
[trier of fact] to determine and, if credible, her testimony
was sufficient to establish the commission of the
crime’’).
We next consider the defendant’s claim that there
was insufficient evidence to prove beyond a reasonable
doubt that he acted with the intent necessary to be con-
victed of sexual assault in the fourth degree in violation
of § 53a-73a (a) (1) (A). Under § 53a-73a (a), ‘‘[a] person
is guilty of sexual assault in the fourth degree when . . .
(1) [s]uch person subjects another person to sexual
contact who is (A) under thirteen years of age and the
actor is more than two years older than such other
person . . . .’’ General Statutes § 53a-65 (3) defines
‘‘[s]exual contact’’ as ‘‘any contact with the intimate
parts of a person for the purpose of sexual gratification
of the actor or for the purpose of degrading or humiliat-
ing such person or any contact of the intimate parts
of the actor with a person for the purpose of sexual
gratification of the actor or for the purpose of degrading
or humiliating such person.’’ Section 53a-65 (8), in turn,
defines ‘‘[i]ntimate parts’’ to include, inter alia, ‘‘the
genital area . . . .’’ In the present case, the burden was,
therefore, on the state to prove beyond a reasonable
doubt that the defendant had contact with R’s genital
area for the purpose of sexual gratification or for the
purpose of degrading or humiliating her. See, e.g., State
v. Michael H., 291 Conn. 754, 760, 970 A.2d 113 (2009).
The defendant claims that the evidence presented at
trial was insufficient to establish that he acted with the
intent to degrade or humiliate R, or that he acted for
the purpose of sexual gratification. Specifically, the
defendant argues that the evidence presented demon-
strates only that, if the conduct did occur, it was as a
result of his concern for R’s health. Based on our review
of the record, we conclude that the evidence presented
at trial was sufficient to support the trial court’s conclu-
sion that the defendant acted with the intent to degrade
or humiliate R or acted for the purpose of sexual gratifi-
cation.
It is well established that ‘‘[i]ntent may be, and usually
is, inferred from the defendant’s verbal or physical con-
duct. . . . Intent may also be inferred from the sur-
rounding circumstances. . . . The use of inferences
based on circumstantial evidence is necessary because
direct evidence of the accused’s state of mind is rarely
available. . . . Intent may be gleaned from circumstan-
tial evidence such as . . . the events leading up to and
immediately following the incident. . . . Furthermore,
it is a permissible, albeit not a necessary or mandatory,
inference that a defendant intended the natural conse-
quences of his voluntary conduct.’’ (Internal quotation
marks omitted.) State v. Saez, 115 Conn. App. 295, 302–
303, 972 A.2d 277, cert. denied, 293 Conn. 909, 978 A.2d
1113 (2009); see also State v. Lamantia, 336 Conn. 747,
756–57, 250 A.3d 648 (2020).
In the present case, R’s testimony alone was sufficient
to support the trial court’s conclusion that the defen-
dant made contact with R’s intimate parts for the pur-
pose of degrading or humiliating her. See, e.g., State v.
Michael H., supra, 291 Conn. 760–61 (testimony of sex-
ual assault victim provided ‘‘sufficient evidence that the
defendant had contact with the intimate parts of [the
victim] for the purposes of sexual gratification’’). As
the trial court aptly noted in its decision, ‘‘[t]he evidence
in this case proves that the defendant forced [R] to lie
completely unclothed on his bed, sometimes with [the
defendant’s] girlfriends present, so that he, the defen-
dant, could place his hands and a wash cloth in, and
on, R’s genital area, at times pulling apart R’s external
genitalia to look inside, knowing full well from [R’s]
words and actions that this conduct embarrassed her
and that she wished for him to stop doing it.’’ Viewing
the evidence in a light most favorable to sustaining the
verdict, we agree with the trial court and conclude
that the defendant’s physical conduct and his continued
abuse of R, despite her repeated requests that he stop,
supports a ‘‘reasonable and logical inference . . . that
the defendant’s touching of R was undertaken for the
purpose of humiliating and degrading her.’’ See, e.g.,
State v. Michael H., supra, 760–61; see also State v.
McGee, 124 Conn. App. 261, 263, 273, 4 A.3d 837 (evi-
dence that defendant touched and twisted victim’s
breast during robbery was sufficient to support finding
that defendant intended to degrade or humiliate victim),
cert. denied, 299 Conn. 911, 10 A.3d 529 (2010), cert.
denied, 563 U.S. 945, 131 S. Ct. 2114, 179 L. Ed. 2d 908(2011); In re Mark R., 59 Conn. App. 538, 542, 757 A.2d
636 (2000) (evidence that defendant attempted to pull
down victim’s pants and ‘‘smacked the victim’s buttocks
more than once . . . in a school hallway in front of
several people . . . support[ed] a reasonable infer-
ence’’ that defendant intended to degrade or humiliate
victim).
Moreover, we also conclude that the state’s evidence
was sufficient to support the trial court’s finding that
the defendant acted for the purpose of sexual gratifica-
tion. In its decision, the trial court stated that the defen-
dant’s contact with R’s vaginal area and his penetration
of R’s vagina supported an inference that the defen-
dant’s conduct was ‘‘done for the defendant’s sexual
gratification . . . .’’ The court also noted that ‘‘the
repeated and almost ritualistic nature of the defendant’s
conduct in this case makes an inference of sexual grati-
fication a particularly reasonable one.’’ Having
reviewed the record, we agree with the trial court and
conclude that R’s trial testimony and forensic interview
support a reasonable inference that the defendant
engaged in the conduct in question for the purpose of
sexual gratification. See State v. Michael H., supra, 291
Conn. 760–61 (defendant’s intent to commit sexually
gratifying act was inferred in case in which defendant
rubbed his hands over minor victim’s genital area); State
v. Montoya, 110 Conn. App. 97, 103, 954 A.2d 193 (defen-
dant’s touching of minor victim’s vagina constituted
evidence of intent to commit sexually gratifying act),
cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008); see
also State v. John O., 137 Conn. App. 152, 159, 47 A.3d
905, cert. denied, 307 Conn. 913, 53 A.3d 997 (2012).
For the foregoing reasons, we conclude that the evi-
dence was sufficient to support the defendant’s convic-
tions.
IV
Finally, the defendant claims that the statutes crimi-
nalizing sexual assault in the first degree, § 53a-70 (a)
(2), and risk of injury to a child, § 53-21 (a) (2), are
unconstitutionally vague as applied to his conduct, in
violation of his right to due process.17 Specifically, the
defendant claims that neither statute provided him with
adequate notice that the conduct underlying his convic-
tions was criminal.18 In support of his argument, the
defendant contends that his conduct was the product
of a good faith concern about R’s hygiene and that
no reasonable person could have been aware that the
conduct was criminally prohibited. In response, the
state argues that neither statute is unconstitutionally
vague as applied to the defendant because the plain
language of those statutes, coupled with relevant judi-
cial decisions, provide fair and adequate notice that the
defendant’s conduct was criminal. The state also argues
that the facts of this case demonstrate that the defen-
dant had actual notice that his conduct was prohibited
by statute. We agree with the state and conclude that
neither statute is unconstitutionally vague as applied
to the defendant’s conduct because he had fair and
adequate notice that his conduct was criminally pro-
scribed.
The following additional facts and procedural history
are relevant to our consideration of the defendant’s
claim. Prior to closing arguments, defense counsel
moved for a judgment of acquittal on the risk of injury
charges in counts six and seven, arguing that § 53-21
(a) (1) and (2) were unconstitutionally vague as applied
to the defendant’s conduct. The trial court reserved
ruling on the defendant’s vagueness claim, and, follow-
ing closing arguments, defense counsel extended the
defendant’s vagueness challenge to the first degree sex-
ual assault charge under § 53a-70 (a) (2).
After rendering its verdict, the trial court denied the
defendant’s motions, reasoning that ‘‘the language of
each of these statutes, either alone or in conjunction
with judicial gloss already placed on certain portions
of language in these statutes by the Connecticut courts,
[put] the defendant . . . on notice that the particular
behavior alleged in this case was prohibited, and, as to
this particular behavior, the defendant was not at risk
of being subject to standardless law enforcement.’’ The
trial court further noted that ‘‘[t]he defendant himself
admitted in his testimony that he knew any touching
of his daughter of the nature she described was inappro-
priate. In light of that admission and the facts presented
in the case and found credible by the court, the court
concludes that the defendant has failed to meet his
heavy burden of demonstrating beyond a reasonable
doubt that he had inadequate notice of what was prohib-
ited or that he was the victim of arbitrary enforce-
ment.’’19
Before addressing the merits of the defendant’s claim,
we note the legal principles that guide our decision. ‘‘A
party attacking the constitutionality of a validly enacted
statute bears the heavy burden of proving its unconstitu-
tionality beyond a reasonable doubt . . . [and we]
indulge in every presumption in favor of the statute’s
constitutionality . . . .’’ (Citations omitted.) State v.
Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991). ‘‘The
determination of whether a statutory provision is
unconstitutionally vague is a question of law over which
we exercise de novo review.’’ State v. Winot, 294 Conn.
753, 758–59, 988 A.2d 188 (2010).
‘‘The vagueness doctrine derives from two interre-
lated constitutional concerns. . . . First, statutes must
provide fair warning by ensuring that [a] person of
ordinary intelligence [has] a reasonable opportunity to
know what is prohibited, so that he may act accordingly.
. . . Second, in order to avoid arbitrary and discrimina-
tory enforcement, statutes must establish minimum
guidelines governing their application.’’ (Citations omit-
ted; internal quotation marks omitted.) Board of Select-
men v. Freedom of Information Commission, 294
Conn. 438, 458, 984 A.2d 748 (2010); see also State ex
rel. Gregan v. Koczur, 287 Conn. 145, 156, 947 A.2d 282(2008) (‘‘[t]he void for vagueness doctrine embodies
two central precepts: the right to fair warning of the
effect of a governing statute . . . and the guarantee
against standardless law enforcement’’ (internal quota-
tion marks omitted)).
‘‘For statutes that do not implicate the especially
sensitive concerns embodied in the first amendment,
we determine the constitutionality of a statute under
attack for vagueness by considering its applicability to
the particular facts at issue.’’ (Internal quotation marks
omitted.) State v. Jones, 215 Conn. 173, 180, 575 A.2d
216 (1990). To prevail on such a claim, the defendant
must ‘‘demonstrate beyond a reasonable doubt that [he]
had inadequate notice of what was prohibited or that
[he was] the victim of arbitrary and discriminatory
enforcement. . . . If the meaning of a statute can be
fairly ascertained a statute will not be void for
vagueness since [m]any statutes will have some inher-
ent vagueness, for [i]n most English words and phrases
there lurk uncertainties. . . . References to judicial
opinions involving the statute, the common law, legal
dictionaries, or treatises may be necessary to ascertain
a statute’s meaning to determine if it gives fair warning.’’
(Internal quotation marks omitted.) State v. Winot,
supra, 294 Conn. 759.
‘‘The proper test for determining [whether] a statute
is vague as applied is whether a reasonable person
would have anticipated that the statute would apply to
his or her particular conduct. . . . The test is objec-
tively applied to the actor’s conduct and judged by a
reasonable person’s reading of the statute . . . . [O]ur
fundamental inquiry is whether a person of ordinary
intelligence would comprehend that the defendant’s
acts were prohibited . . . .’’ (Citation omitted; internal
quotation marks omitted.) State v. Bloom, 86 Conn. App.
463, 469, 861 A.2d 568 (2004), cert. denied, 273 Conn.
911, 870 A.2d 1081 (2005); see also State v. Pickering,
180 Conn. 54, 61, 428 A.2d 322 (1980) (noting that ‘‘a
penal statute may survive a vagueness attack solely
upon a consideration of whether it provides fair warn-
ing’’).
In the present appeal, the defendant claims that both
§§ 53a-70 (a) (2) and 53-21 (a) (1) are unconstitutionally
vague as applied to his conduct because neither statute
provided him with adequate notice that his conduct, as
described by R, was criminally prohibited. We disagree
and conclude that the language of both statutes and
the relevant judicial decisions interpreting them provide
a person of ordinary intelligence with fair notice that
the digital penetration of a minor’s vagina and the touch-
ing of a minor’s vagina with a rag in a sexual and inde-
cent manner are criminally prohibited.
As to the defendant’s claim concerning his conviction
of sexual assault in the first degree, § 53a-70 (a) (2)
criminally prohibits a person from engaging ‘‘in sexual
intercourse with another person . . . [who] is under
thirteen years of age [when] the actor is more than two
years older than such person . . . .’’ Section 53a-65 (2)
defines ‘‘[s]exual intercourse’’ as, inter alia, ‘‘vaginal
intercourse,’’ and specifies that ‘‘[p]enetration, however
slight, is sufficient to complete vaginal intercourse
. . . .’’ In our prior decisions interpreting § 53a-70, we
have recognized that ‘‘digital penetration . . . of the
genital opening . . . is sufficient to constitute vaginal
intercourse.’’ (Emphasis omitted.) State v. Albert, 252
Conn. 795, 806–807, 750 A.2d 1037 (2000). The trial court
in this case specifically concluded that ‘‘R’s testimony
. . . established that the defendant penetrated [her].’’
Furthermore, during her forensic interview, R stated
that her vagina ‘‘ache[d] hard’’ as a result of the defen-
dant’s ‘‘dig[ging] through’’ the ‘‘deep dark’’ part. Given
the plain language of § 53a-70 (a) (2), and the relevant
judicial gloss that has been placed on that statute, we
conclude that a person of ordinary intelligence would
know that the defendant’s digital penetration of R’s
vagina was criminally prohibited.
As to the risk of injury statute, § 53-21 (a) (2) prohibits
‘‘contact with the intimate parts . . . of a child under
the age of sixteen years . . . in a sexual and indecent
manner likely to impair the health or morals of such
child . . . .’’ The definition of ‘‘[i]ntimate parts’’ con-
tained in § 53a-65 (8) includes the ‘‘genital area . . . .’’
Our prior ‘‘opinions pursuant to § 53-21 make it clear
that the deliberate touching of the private parts of a
child under the age of sixteen in a sexual and indecent
manner is violative of [the] statute.’’ State v. Pickering,
supra, 180 Conn. 64. In the present case, the trial court
expressly found that the defendant’s conduct involved
deliberate touching of this nature. In reaching this con-
clusion, the trial court reasoned: ‘‘[T]he touching by the
defendant of R was sexual in nature . . . [and] inde-
cent; that is, in doing what the defendant did to his ten
year old daughter, the defendant engaged in conduct
that is offensive to good taste and public morals. The
court concludes that the defendant’s touching of R was
not innocent, was not accidental, and was not inadver-
tent.’’20 As was the case in Pickering, ‘‘[t]his is not a
situation where the state is holding an individual crimi-
nally responsible for conduct he could not reasonably
understand to be proscribed.’’ (Internal quotation
marks omitted.) State v. Pickering, supra, 64–65. The
defendant’s conduct, as described by the trial court,
falls well within the scope of § 53-21, and, as a result,
the statute may be constitutionally applied to him.
For the foregoing reasons, we conclude that the
defendant has failed to demonstrate that §§ 53a-70 (a)
(2) and 53-21 (a) (1) do not provide fair warning that
the digital penetration of a minor’s vagina in a sexual
and indecent manner is criminally prohibited. The
defendant’s constitutional vagueness claims, therefore,
fail.
The judgment is affirmed.
In this opinion the other justices 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.
** July 28, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (3).
2
The court, Simón, J., ultimately granted the defendant’s motion for a
directed verdict during the trial of the neglect petition filed against the
defendant, but that court also advised the defendant ‘‘to very carefully
consider the recommendations of the doctors and what they believe to be
the appropriate way to address the concerns that you believe exist with
your daughter and proceed in the proper medically advised manner.’’
During trial in the present case, the state introduced the defendant’s
written agreement to show that he had acknowledged that his cleaning
methods were unnecessary and that he had agreed to stop touching R’s
vagina.
3
The information did not identify the specific acts that corresponded to
each count, and the defendant did not request a bill of particulars. At the
close of the state’s case-in-chief, however, defense counsel moved for a
judgment of acquittal on counts one through five, and, during argument on
that motion, the prosecutor specified that one count of sexual assault in
the fourth degree, count four, related to the defendant’s contact with R’s
vagina, and the second count of sexual assault in the fourth degree, count
five, related to the defendant’s contact with her breasts.
4
The trial court found the defendant not guilty on the second count of
sexual assault in the fourth degree and granted defense counsel’s motion
for a judgment of acquittal as to both counts of sexual assault in the third
degree. At sentencing, the trial court also vacated the defendant’s conviction
of one count of risk of injury to a child based on double jeopardy grounds.
5
This court ordered the parties to file supplemental briefs ‘‘addressing
the effect on [this] appeal, if any, of [our] recently released decision in State
v. Manuel T., 337 Conn. 429, 254 A.3d 278 (2020), with respect to the issue
regarding the admission of forensic interview evidence under the medical
treatment exception to the hearsay rule.’’
6
Prior to calling Craft, the prosecutor moved to admit the video recording
based on the testimony of Lisa Murphy-Cipolla, an employee of the Children’s
Advocacy Center who was not present during Craft’s interview of R. The
trial court denied the state’s motion on the ground that Murphy-Cipolla had
not conducted the interview. Several days later, the state arranged for Craft,
who was living out of state at the time of trial, to travel to court to testify.
7
As was the case in State v. Manuel T., 337 Conn. 429, 254 A.3d 278(2020), the trial court in the present case assessed the admissibility of the
video recording of the forensic interview in its entirety and did not assess
the admissibility of individual statements made during the interview. We
recognize that the trial court’s approach was likely a reflection of the position
taken by defense counsel who, in opposing the prosecutor’s motion to admit
the video recording, argued that the recording should be excluded in its
entirety. In response to defense counsel’s ‘‘all or nothing’’ approach, the
trial court remarked, ‘‘[s]o, it’s either in or it’s out, and if it’s in, it can be
played in its entirety.’’ Given the formulation of defense counsel’s opposition
to the admission of the video recording, as well as the fact that the present
case was tried before the court, we believe that the trial court’s response
was reasonable. We do, however, take this opportunity to emphasize that
the purpose underlying the medical treatment exception to the hearsay rule
does not preclude a party from objecting to portions of statements made
during forensic interviews that are either inadmissible for the purpose they
are offered or are otherwise unduly prejudicial. Under such circumstances,
the court, particularly during a jury trial, may exercise its discretion to
redact portions of a forensic interview.
8
In Manuel T., we expressly declined to address whether such an inference
can be made in cases involving children ‘‘too young to have the conscious
purpose of obtaining medical treatment to advance [their] own health.’’
State v. Manuel T., supra, 337 Conn. 441 n.12, citing State v. Dollinger, 20
Conn. App. 530, 536, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d
220 (1990); see State v. Dollinger, supra, 536–37 (inferring that statements
of two and one-half year old child were made for purpose of obtaining
medical treatment). We need not address the issue because, as was the case
in Manuel T., the declarant in the present case was old enough to have the
conscious purpose of obtaining medical treatment.
9
In support of his claim that the trial court abused its discretion in admit-
ting the video recording of the interview of R, the defendant mistakenly
focuses the entirety of his argument on the purpose of the interview and
fails to address whether R’s statements were motivated by a desire to receive
medical treatment and were pertinent to that end. Although the purpose of
the interview and the declarant’s understanding of that purpose are relevant
to determining the motivation of the declarant; see State v. Donald M.,
supra, 113 Conn. App. 71 (considering purpose of interview when determin-
ing purpose of declarant’s statements); the admissibility of specific state-
ments, as we made clear in Manuel T., turns on the ‘‘purpose for which the
statement was made,’’ not the overall purpose of the interview. (Internal
quotation marks omitted.) State v. Manuel T., supra, 337 Conn. 443, quoting
State v. Mendez, 148 N.M. 761, 772, 242 P.3d 328 (2010); see also State v.
Dollinger, 20 Conn. App. 530, 536, 568 A.2d 1058 (noting that ‘‘[t]he test
focuses on the declarant’s motives’’), cert. denied, 215 Conn. 805, 574 A.2d
220 (1990). In Manuel T., we noted that ‘‘the tender years exception considers
the purpose of the interview, whereas the medical treatment exception
focuses on the declarant’s purpose in making individual statements.’’ State
v. Manuel T., supra, 447.
10
Although this factor is dispositive in the present case, it will not always
be so. Prosecutorial impropriety of a particularly egregious nature could,
under certain circumstances, significantly impact a trial court’s consider-
ation of the issues presented and, as a result, deprive a defendant of a fair
trial. Indeed, in discussing the potential harm that improperly admitted
evidence can have on the fairness of a civil bench trial, this court has
previously noted that ‘‘[t]here may be instances where it is so unclear what
effect the disputed evidence might have had, or where its prejudicial effect
is so overwhelming, that the fair administration of justice requires a new
trial.’’ Ghiroli v. Ghiroli, 184 Conn. 406, 409, 439 A.2d 1024 (1981). The
same is true in cases involving alleged prosecutorial impropriety, and, as
such, each case must be decided on its specific facts.
11
Courts have recognized that this presumption can be overcome if the
defendant can establish that the trial court was both influenced and preju-
diced by the impropriety. See, e.g., United States v. Stinefast, 724 F.3d 925,
931 (7th Cir. 2013) (‘‘[t]o overcome this presumption of conscientiousness
on the part of [federal] district [court] judges, a party must present some
evidence that the statement influenced the court’s [decision making]’’); see
also United States v. Weldon, supra, 384 F.2d 774 (‘‘appellate courts may
presume that improper evidence and comments have been rejected when
the trial is to the [c]ourt alone, at least absent a showing of substantial
prejudice’’). We have similarly recognized this principle in the purely eviden-
tiary context. See Ghiroli v. Ghiroli, 184 Conn. 406, 408–409, 439 A.2d
1024 (1981).
12
The Appellate Court has applied a similar concept, the broader presump-
tion that the trial court did not act in error, to conclude that alleged prosecu-
torial impropriety during a bench trial did not deprive a defendant of a fair
trial. See, e.g., State v. John M., 87 Conn. App. 301, 321 n.15, 865 A.2d 450(2005) (citing Carothers v. Capozziello, 215 Conn. 82, 105, 574 A.2d 1268(1990)), aff’d, 285 Conn. 822, 942 A.2d 323 (2008).
13
The defendant argues that the trial court’s express commitment to ignore
the prosecutor’s statement concerning Jackson’s testimony was ‘‘inadequate
to protect against’’ the prejudicial impact of the comment. According to the
defendant, the prosecutor has ‘‘far more inherent credibility with the court
than an average person,’’ and, as a result, ‘‘[t]he trial court would be especially
inclined to believe [the prosecutor’s] assertions or recollection of . . . Jack-
son’s statements than to believe . . . Jackson herself.’’ We firmly reject the
defendant’s suggestion that the trained and experienced trial judge was
incapable of acting as a fair and impartial finder of fact in the present case.
In jury trials, we presume that the jury follows the curative instructions of
the trial court regarding references by counsel to facts not in evidence. See,
e.g., State v. McCoy, 331 Conn. 561, 573–74, 206 A.3d 725 (2019). ‘‘It would
be anomalous . . . to hold that an experienced trial . . . judge cannot
similarly disregard evidence that has not properly been admitted.’’ Ghiroli
v. Ghiroli, 184 Conn. 406, 408–409, 439 A.2d 1024 (1981); see also Harris
v. Rivera, supra, 454 U.S. 346 (‘‘surely we must presume that [trial judges]
follow their own instructions when they are acting as [fact finders]’’).
14
Prior to closing arguments, defense counsel also moved for a judgment
of acquittal on counts six and seven, arguing that the risk of injury statute
was unconstitutionally vague as applied to the defendant’s conduct. The
court reserved ruling on the vagueness claim until after closing arguments.
The defendant’s constitutional vagueness claims are addressed subsequently
in this opinion.
15
Count four related to the defendant’s contact with R’s vagina and count
five related to his contact with her breasts.
16
The trial court also ‘‘conclude[d] that the defendant has testified falsely
in asserting that he did not engage in the conduct described by R that forms
the factual basis of the allegations in this criminal proceeding. And having
reached this conclusion that the defendant has testified falsely, it is proper
for this court to carefully consider whether it should rely upon any of the
defendant’s testimony.’’
17
It is unclear if the defendant intended to raise his vagueness claim under
both the state and federal constitutions. In one sentence in his brief, the
defendant states that the relevant statutes are vague as applied to him
‘‘[e]ven under a strictly federal analysis . . . .’’ The defendant’s brief is
devoid of any reference to the state constitution, and defense counsel did
not refer to a state constitutional claim during oral argument before this
court. Given the defendant’s failure to sufficiently allege a state constitu-
tional claim under State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992),
we only consider his federal constitutional vagueness claim. See, e.g., State
v. Wilchinski, 242 Conn. 211, 217 n.7, 700 A.2d 1 (1997). We note, however,
that ‘‘we have applied the same analysis to vagueness claims brought pursu-
ant to both the state and the federal constitutions.’’ State v. Ward, 306 Conn.
718, 742 n.15, 51 A.3d 970 (2012).
18
‘‘To demonstrate that [a statute] is unconstitutionally vague as applied
to him, the [defendant must] . . . demonstrate beyond a reasonable doubt
that [he] had inadequate notice of what was prohibited or that [he was] the
victim of arbitrary and discriminatory enforcement.’’ (Internal quotation
marks omitted.) State v. Winot, 294 Conn. 753, 759, 988 A.2d 188 (2010).
On a single page in his brief, the defendant appears to raise a claim under
the second prong of the as applied vagueness test, that is, the guarantee
against arbitrary and discriminatory law enforcement. In support of this
claim, the defendant argues that the statutes at issue could criminalize
otherwise innocent conduct, such as the medical examination of a child or
the changing of an infant’s diaper. To the extent that the defendant claims
that he is a victim of arbitrary enforcement under the statutes, his claim fails.
As we explain in greater detail subsequently in this opinion, the hypothetical
applicability of these statutes to conduct unrelated to the defendant’s own
actions is irrelevant to our consideration of whether the statutes were
unconstitutionally vague as applied to the defendant’s conduct. See State
v. Josephs, 328 Conn. 21, 31–32, 176 A.3d 542 (2018). Because the defendant
fails to argue that he was the victim of arbitrary or discriminatory enforce-
ment, we only consider his claim that the statutes were unconstitutionally
vague as applied to his conduct because they failed to provide him with
adequate notice that his conduct was criminally prohibited.
19
The trial court vacated the defendant’s conviction on the seventh count
of the information, which charged him with risk of injury to a child in
violation of § 53-21 (a) (1), on double jeopardy grounds. The defendant’s
vagueness claim is, therefore, limited to his conviction on count one, under
§ 53a-70 (a) (2), and on count six, under § 53-21 (a) (2).
20
In support of his claim that he lacked adequate notice, the defendant
contends that his conduct was based on ‘‘mistaken hygiene concerns,’’ and,
because he believed that his conduct was appropriate, he had no reason to
suspect that he was engaging in a criminal act. The trial court, however,
expressly rejected the defendant’s argument that his conduct was motivated
by an innocent desire to help R. In reaching this conclusion, the trial court
found: ‘‘[T]he defendant was not acting under a mistaken belief or other
excuse because he knew from doctors and [employees of the department]
that what he was doing to R was inappropriate and not medically or hygieni-
cally justified when she was [three] years old and because he himself admit-
ted in his testimony that he knew it would be wrong to do it when she
was ten.’’