State v. Errol J.

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STATE OF CONNECTICUT v. ERROL J.*
(AC 42080)
DiPentima, C. J., and Elgo and Moll, Js.**
Syllabus
Convicted, after a jury trial, of the crimes of risk of injury to a child in
violation of statute (§ 53-21 (a) (1)) and cruelty to persons in connection
with his actions in beating and whipping the victim, his minor child,
with an electrical cord, the defendant appealed to this court. Held:
1. The defendant could not prevail on his claim that the trial court erred
by restricting his cross-examination of three of the state’s expert wit-
nesses, B, M and W, thereby violating his constitutional right to confron-
tation: contrary to the defendant’s claim that that court improperly
prevented him from cross-examining B, who had diagnosed the victim
with post-traumatic stress disorder, about whether she had considered
alternative diagnoses, the record revealed that the defendant was able
to inquire of B as to how she reached her diagnosis, to explore whether
she had considered other disorders and to scrutinize the methods she
used, and, therefore, the court’s ruling on the scope of the defendant’s
cross-examination of B was not constitutionally defective; moreover,
this court concluded that the trial court did not abuse its discretion
in sustaining the prosecutor’s objections to defense counsel’s line of
questioning with respect to B, as the defendant failed to meet his burden
of showing that the restrictions imposed on cross-examination were
clearly prejudicial; furthermore, this court declined to review the defen-
dant’s claims as to M and W, as those claims were not adequately briefed.
2. The defendant’s claim that the trial court erred in admitting into evidence
unredacted medical records and testimony addressing the ultimate issue
in the case was unavailing: that court did not abuse its discretion because
it properly admitted the unredacted medical records and related testi-
mony under the medical diagnosis or treatment exception to the hearsay
rule, as the medical reports were created by medical practitioners in
the furtherance of the victim’s medical treatment and the testimony
at issue likewise was related to his medical diagnosis and treatment;
moreover, the record was inadequate to review the part of the defen-
dant’s claim related to a motion in limine filed by the defendant that
sought to preclude the state from eliciting testimony from witnesses
that went to the ultimate issue of whether the defendant abused the
victim, as there was no indication in the record that the court ruled on
that motion.
3. The defendant could not prevail on his claim that the prosecutor made
several improper statements during her closing argument, thereby vio-
lating his constitutional right to a fair trial:
a. Contrary to the defendant’s claim, the prosecutor did not disparage
defense counsel, as the challenged statements did not rise to the level
of improper conduct because they were directed at challenging and
criticizing the theory of defense that the victim’s behavioral issues
existed before the alleged abuse by the defendant.
b. The prosecutor did not improperly express her personal opinion and
allude to facts outside of the evidence; the prosecutor’s comment about
whether the victim’s behavioral problems were caused by the defen-
dant’s actions referred to issues addressed in testimony by various
witnesses throughout the trial, and her comments about why certain
children are ‘‘bad’’ similarly referred to evidence presented during the
trial about the victim’s behavioral problems stemming from the post-
traumatic stress disorder caused by the defendant’s abuse, and the
comments encouraged the jurors to draw reasonable inferences from
the evidence and their own experiences and common knowledge
about children.
c. Although the prosecutor’s statement comparing the defendant’s
actions to cruel and unusual punishment prohibited by the government
under the eighth amendment to the United States constitution was a
misstatement of the law and therefore improper, this court, applying
the factors set forth in State v. Williams (204 Conn. 523), concluded
that it did not deprive the defendant of his due process right to a fair trial.
4. The defendant’s claim that the trial court erred in failing to give the
jury an instruction on the statutory (§ 53a-18 (1)) parental justification
defense with respect to the situation prong of the risk of injury to a
child charge in count two of the information was unavailing, as that
court properly concluded that the defense did not apply to the situation
prong of § 53-21 (a) (1): this court declined to extend the holding in
State v. Nathan J. (294 Conn. 243), that the parental justification defense
may be applied to conduct under the act prong of § 53-21 (a) (1), to the
situation prong of that statute; moreover, the plain language of § 53a-
18 (1) demonstrates that the parental justification defense is available
only for the specific circumstance in which a defendant uses reasonable
physical force that he believes to be necessary to discipline or promote
the welfare of a child, and, therefore, it does not apply to the situa-
tion prong.
Argued February 6—officially released September 1, 2020
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of risk of injury to a
child and assault in the second degree, and with one
count of the crime of cruelty to persons, brought to
the Superior Court in the judicial district of Fairfield,
geographical area number two, and tried to the jury
before Holden, J.; verdict and judgment of guilty of two
counts of risk of injury to a child and one count of
cruelty to persons, from which the defendant appealed
to this court. Affirmed.
Alice Osedach, senior assistant public defender, for
the appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were John Smriga, former
state’s attorney, Margaret Kelly, state’s attorney, and
Judy Stevens, senior assistant state’s attorney, for the
appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Errol J., appeals
from the judgment of conviction, rendered following a
jury trial, of two counts of risk of injury to a child in
violation of General Statutes § 53-21 (a) (1) and one
count of cruelty to persons in violation of General Stat-
utes § 53-20 (b) (1). The defendant challenges several of
the trial court’s evidentiary rulings and jury instructions
and raises claims of prosecutorial impropriety. Specifi-
cally, he claims that (1) the court erred by restricting
his cross-examination of the state’s expert witnesses,
which violated his constitutional rights to confrontation
and to present a defense, (2) the court erred in admitting
into evidence certain medical records and testimony,
(3) the prosecutor advanced several improper argu-
ments during her closing arguments, violating the defen-
dant’s constitutional right to a fair trial, and (4) the
court erred in failing to give the parental justification
instruction on one of the counts of risk of injury to a
child. We disagree and, accordingly, affirm the judg-
ment of the trial court.
The jury reasonably could have found the following
facts. Between January 1 and May 27, 2015, the defen-
dant beat or whipped his son, the victim, with an electri-
cal cord. At the time of the injuries, the victim was a
student at a Bridgeport school. On May 27, 2015, the
victim met with Christopher Mack, a security officer
employed by the Bridgeport Board of Education, who
worked at the victim’s school. In his role there, Mack
assisted in maintaining a safe environment at the school
and mentoring students. Mack was familiar with the
victim from working at the school. When the victim
came into the office to meet with Mack on May 27,
2015, Mack noticed that he had a large bump on his
head and asked the victim what was on his head. The
victim stepped into Mack’s office and responded, ‘‘I
have more, can you keep a secret?’’ He then lifted up
his shirt to show Mack what Mack described as ‘‘almost
unreal. I noticed . . . slashes across his back, scars,
fresh. When I say fresh, I mean, there were still scabs.
There were some that were old. But there were so many
that I couldn’t even count.’’ The victim also showed
Mack his side. The school nurse was called to examine
the victim. Mack then telephoned the Department of
Children and Families (department).
Andrea Sellers, a department investigative social
worker, responded to the call from Mack on the hotline
for suspected abuse. Once at the school, Sellers
reviewed photographs of the victim taken by Mack and
spoke to the victim and his siblings, who were also
students at the school. Sellers then called the victim’s
parents and requested that they come to the school.
While meeting with Sellers, the defendant admitted to
Sellers that he had used a wire to discipline the victim.
The children were transported to Southwest Commu-
nity Health Center, and the victim was examined by a
nurse there. After it was determined that some of the
injuries on the victim were recent, a ninety-six hour
hold issued pursuant to General Statutes § 17a-101g and
the department took temporary custody of the
children.1
The record establishes the following procedural his-
tory. The defendant was charged in an amended long
form information with two counts of risk of injury to
a child in violation of § 53-21 (a) (1) (act prong and
situation prong), assault in the second degree in viola-
tion of General Statutes § 53a-60 (a) (2), assault in the
second degree in violation of § 53a-60 (a) (1), and cru-
elty to persons in violation of § 53-20 (b) (1). Prior to
trial, the defendant filed a motion in limine requesting
that the court preclude the state from (1) referring to
the complainant child as a victim, (2) eliciting informa-
tion that the department had substantiated allegations
of abuse, and (3) using the word ‘‘abuse’’ when describ-
ing the child’s injuries and eliciting testimony from its
witnesses that the child was abused. Following a trial
by jury before Holden, J., the defendant was found not
guilty of the two counts of assault and was found guilty
of the two counts of risk of injury to a child and one
count of cruelty to persons. The court sentenced the
defendant to a total effective term of fifteen years of
incarceration, execution suspended after ten years,
with five years of probation. This appeal followed. Addi-
tional facts will be set forth as necessary.
I
The defendant raises two evidentiary claims. He first
claims that the court violated his constitutional rights
to confrontation and to present a defense by restricting
his cross-examination. Secondly, he claims that the trial
court erred in admitting into evidence, over his objec-
tion, medical records and testimony that addressed the
ultimate issue in the case. We reject both claims.
‘‘The standard to be used to review a trial court’s
decision on the relevance and admissibility of evidence
is abuse of discretion. . . . The trial court has wide
discretion to determine the relevancy of evidence and
the scope of cross-examination. Every reasonable pre-
sumption should be made in favor of the correctness
of the court’s ruling in determining whether there has
been an abuse of discretion.’’ (Citation omitted; internal
quotation marks omitted.) State v. Markeveys, 56 Conn.
App. 716, 718–19, 745 A.2d 212, cert. denied, 252 Conn.
952, 749 A.2d 1203 (2000).
A
The defendant first challenges the court’s rulings on
the scope of cross-examination in reference to the testi-
mony of three of the state’s witnesses: Rebecca Moles,
a pediatrician with training in treating victims of child
abuse employed at the Connecticut Children’s Medical
Center; Ariane Brown, a licensed professional coun-
selor at LifeBridge Community Services who treated
the victim in June, 2015; and Natasha Wright, a clinical
social worker at the Family and Children’s Agency
(agency). The defendant argues that the court erred
in preventing him from cross-examining Brown about
whether she considered alternative diagnoses, in partic-
ular, oppositional defiant disorder, when diagnosing the
victim. We first briefly address the purported claims as
to Moles and Wright.
The defendant’s appellate briefs do not adequately
identify nor analyze any claims as to Moles and Wright.
The defendant does not discuss how the trial court’s
rulings as to Moles’ testimony violated his rights to
confrontation and to present a defense. The defendant
also only references Wright’s testimony; there is no
discussion in the briefs as to the prosecutor’s objection
to the scope of defense counsel’s cross-examination of
Wright or how the court’s ruling was constitutionally
defective.2 ‘‘We are not required to review issues that
have been improperly presented to this court through an
inadequate brief.’’ (Internal quotation marks omitted.)
Bushy v. Forster, 50 Conn. App. 233, 236, 718 A.2d 968(1998) (citing Connecticut National Bank v. Giacomi,
242 Conn. 17, 44–45, 699 A.2d 101 (1997)), cert. denied,
247 Conn. 944, 723 A.2d 321 (1998). Therefore, we
decline to review these claims.
We turn to the defendant’s challenge to the court’s
restrictions on his cross-examination of Brown.3 As
stated previously in this opinion, the ‘‘general rule is
that restrictions on the scope of cross-examination are
within the sound discretion of the trial judge . . . .’’
(Internal quotation marks omitted.) State v. Reeves, 57
Conn. App. 337, 346, 748 A.2d 357 (2000). This discre-
tion, however, ‘‘comes into play only after the defendant
has been permitted cross-examination sufficient to sat-
isfy the sixth amendment.’’ (Internal quotation marks
omitted.) Id. To determine if the sixth amendment has
been satisfied, we, as the reviewing court, must engage
in a two step analysis. We must determine ‘‘first whether
the cross-examination permitted to defense counsel
comported with sixth amendment standards . . . and
second, whether the trial court abused its discretion in
restricting the scope of that cross-examination. . . .
The constitutional standard is met when defense coun-
sel is permitted to expose to the jury the facts from
which [the] jurors, as the sole triers of fact and credibil-
ity, could appropriately draw inferences relating to the
reliability of the witness.’’ (Citations omitted; internal
quotation marks omitted.) Id. ‘‘Once it is established
that the trial court’s ruling on the scope of cross-exami-
nation is not constitutionality defective, this court will
apply [e]very reasonable presumption . . . in favor of
the correctness of the court’s ruling in determining
whether there has been an abuse of discretion.’’ (Inter-
nal quotation marks omitted.) Id., 347. ‘‘To establish
an abuse of discretion, [the defendant] must show the
restrictions imposed upon [the] cross-examination
were clearly prejudicial.’’ (Internal quotation marks
omitted.) Id., 346.
The following additional facts are relevant to this
claim. In her testimony, Brown described how she
arrived at her conclusion that the victim’s symptoms
were caused by post-traumatic stress disorder (PTSD)
through various diagnostic methods, including trauma
and feelings assessments. Brown testified that all of the
victim’s behavioral problems were attributable to his
PTSD. On cross-examination, defense counsel returned
to the issue of how Brown had arrived at her diagnosis
of PTSD. In her questioning, defense counsel asked
Brown a number of questions about whether the victim
had been ‘‘defiant’’ or failed to follow instructions from
adults. Defense counsel then asked a number of ques-
tions about whether Brown had considered another
disorder called oppositional defiant disorder.4 The pros-
ecutor objected to this line of questioning, arguing:
‘‘[T]his goes well beyond the scope of the direct exami-
nation. This [witness] has not testified that she’s a psy-
chologist. She has testified that she used this book.
She’s testified as to her diagnosis, as to the diagnosis
that was made at LifeBridge [Community Services], and
this goes now into speculation into perhaps other diag-
noses that could have or may have been made or maybe
I don’t know what the whole [gist] of this line of ques-
tioning is. However, it goes well beyond the scope of
direct examination.’’ In response, defense counsel
argued that the defendant was ‘‘entitled to present a
defense as well as alternative theories as to that kind
of mental illness this child may be suffering if any.’’ The
court disagreed and sustained the objection. Defense
counsel continued this line of questioning, however,
and asked: ‘‘So, I guess I just want to be clear. You
never even considered oppositional defiant disorder as
something to test?’’ The prosecutor immediately
objected again, and the court sustained the objection.
Later in cross-examination, defense counsel asked
whether Brown had considered ‘‘[o]ther diagnostic
explanations for [the victim’s] behaviors?’’ The prosecu-
tor objected that the question had been asked and
answered. The court agreed but allowed Brown to
answer the question. She testified that ‘‘the diagnosis
that was determined to be the most accurate was
[PTSD].’’ The following exchange then took place:
‘‘Q. So, you did consider other kinds of potential
diagnosis from the [Diagnostic Statistical Manual].
‘‘A. You don’t go into an assessment assuming the
diagnosis. So, everything is considered.
‘‘Q. And that would include several of the other men-
tal illnesses that are described in the DSM, right?’’
The prosecutor then objected again to this line of
questioning as going beyond the scope of direct exami-
nation. The court sustained the objection, stating, ‘‘[i]t
does. . . . Other diagnosis; yes, she considered.’’
Defense counsel continued and subsequently asked
Brown, ‘‘But my question was were there specific ill-
nesses that you . . . ?’’ The prosecutor objected,
arguing that the question had been asked and answered
several times. The court again sustained the objection.
The trial court’s ruling on the scope of the defendant’s
cross-examination of Brown was not constitutionally
defective. The defendant was able to inquire of Brown
how she reached her diagnosis of PTSD. By doing so,
the defendant was able to explore whether Brown had
considered other disorders before diagnosing the victim
with PTSD and to scrutinize the methods that she used
in reaching the PTSD diagnosis. Brown testified that
she considered ‘‘everything’’ and did not begin her
assessment assuming a diagnosis. The sixth amendment
right to cross-examination includes the right to an
opportunity for cross-examination, not the right to
unrestricted cross-examination. See State v. Reeves,
supra, 57 Conn. App. 353. The record reveals that the
defendant had the opportunity to criticize Brown’s diag-
nosis of the victim and her methods of achieving this
diagnosis. We conclude, therefore, that the defendant’s
sixth amendment right to cross-examination was not
violated.
We now consider whether the court abused its discre-
tion in sustaining the prosecutor’s objection. ‘‘To estab-
lish an abuse of discretion, [the defendant] must show
that the restrictions imposed upon [the] cross-examina-
tion were clearly prejudicial. . . . Once it is estab-
lished that the trial court’s ruling on the scope of cross-
examination is not constitutionally defective, this court
will apply [e]very reasonable presumption . . . in
favor of the correctness of the court’s ruling in
determining whether there has been an abuse of discre-
tion.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 346–47.
Our review of the record leads us to the conclusion
that the court did not abuse its discretion. As discussed
previously, the defendant had the opportunity to criti-
cize and challenge Brown’s testimony regarding the
victim’s diagnosis. Additionally, the defendant has the
burden of showing that ‘‘the restrictions imposed upon
[the] cross-examination were clearly prejudicial.’’
(Internal quotation marks omitted.) Id., 355. He has not
met that burden. We conclude, therefore, that the trial
court did not abuse its discretion and, therefore, did not
violate the defendant’s sixth amendment constitutional
right to confrontation.
B
The defendant’s second evidentiary claim is that the
trial court erred in admitting into evidence unredacted
medical records and testimony addressing the ultimate
issue in the case. The defendant filed a motion in limine
before trial that sought to prevent the state from elic-
iting testimony that went to the ultimate issue the jury
was to decide. At trial, the defendant also moved to
have medical records proffered by the state redacted.
The state responds that the portion of this claim as to
the motion in limine is unreviewable because the record
is inadequate for review. In support of this argument,
the state notes that the record contains no argument
on the motion, nor any ruling by the court. We agree
with the state that the record is inadequate to review
the part of this claim addressed in the motion in limine.
We further conclude that the court did not err in admit-
ting into evidence the challenged unredacted medical
records and testimony.
The record reveals the following facts relevant to this
claim. The defendant filed a motion in limine on April
9, 2018. In the motion, the defendant requested that the
state be barred from referring to the complainant as a
‘‘victim,’’ eliciting information that the department had
substantiated allegations of abuse, eliciting testimony
that the defendant was ‘‘abusive,’’ using the word
‘‘abuse’’ when describing the complainant’s injuries or
eliciting testimony in which the word ‘‘abuse’’ is used
when describing the complainant’s injuries. Neither
party has directed us to a written ruling on this motion
or a transcript excerpt reflecting an oral ruling.5
During the trial, the defendant objected to a number
of the exhibits proffered by the state that pertained to
the victim’s medical records from Southwest Commu-
nity Health Center in Bridgeport (center) on the grounds
that they included the word ‘‘abuse’’ or referred to the
defendant’s conduct as ‘‘abusive.’’6 The defendant
sought to have these exhibits redacted because they
went to the ultimate issue: whether the defendant had
abused the victim. Defense counsel also raised a hear-
say objection to the medical records. The court denied
the defendant’s request and determined that the exhib-
its were admissible under the medical diagnosis or treat-
ment exception to the hearsay rule.7 See Conn. Code
Evid. § 8-3 (5).
Two medical professionals who treated the victim
during one of his visits to the center testified about
these records. The first was Carolyn Walsh, an advanced
practice registered nurse who treated the victim when
the department brought him and his siblings to be exam-
ined. Regarding the medical report she created for that
visit, she testified: ‘‘[T]he reason for visit is physical
abuse. The symptoms are reported as being physical
abuse, evaluation, patient presents to clinic with
[department] case worker, mother, and three siblings,
following a report of recent abuse by [the defendant]
that patient may have disclosed to security guard, head
[department] worker and mother. Parents were called
to school two weeks ago for behavioral problems, after
which patient reported to school security guard, [the
defendant] had beaten him. Police were called to
school, but [the defendant] was not arrested on criminal
charges, [the department] worker’s requesting that
patient be evaluated for any signs of possible recent
abuse.’’ Walsh further testified from her report about
a note dated June 9, 2015, which related to the victim’s
psychosocial functioning. She testified that the note
stated that the ‘‘patient with history of significant physi-
cal abuse by [the defendant] and subsequent behavioral
problems, removed from home and siblings by [the
department] on [May 27, 2015].’’ Defense counsel
objected to Walsh’s testimony regarding this exhibit by
reiterating her earlier objection to the exhibit.8
Later in the trial, Dara Richards, a pediatrician at the
center, testified about visits the victim had made to the
center, specifically, an office visit on July 29, 2015. She
read from the report of that visit, which stated under the
‘‘present illness’’ section: ‘‘Scars from physical abuse
to scalp remains, child was hit in the head multiple
times by [the defendant] with electrical cord, largest
scar to an occipital region of scalp, still tender and child
complains it hurts at times. Children in grandparents’
custody now, [the department] on case.’’ Richards fur-
ther testified from the report: ‘‘Patient with history of
significant physical abuse by [the defendant] and subse-
quent behavioral problems, removed from home with
siblings by [the department] on May 27, [2015].’’
Although the record before this court includes a copy
of the motion in limine filed with the trial court and
the trial transcript, in which the trial court refers to the
motion in limine, the record does not reflect a ruling
on the motion by the trial court. The defendant, as the
appellant, bears the burden of providing this court with
an adequate record for review. See Chester v. Manis,
150 Conn. App. 57, 61, 89 A.3d 1034 (2014); see also
Practice Book § 61-10. Further, ‘‘[w]e cannot pass on
the correctness of a trial court ruling that was never
made.’’ (Internal quotation marks omitted.) State v.
McLaughlin, 135 Conn. App. 193, 202, 41 A.3d 694, cert.
denied, 307 Conn. 904, 53 A.3d 219 (2012). Because we
are unable to determine that any ruling was made on
the motion in limine, we cannot opine on the court’s
action on the motion. Accordingly, this claim must fail.
Further, the court did not abuse its discretion in deny-
ing the defendant’s request to have the medical reports
from the center redacted when the state moved to admit
them into evidence. As discussed previously, the court
admitted the exhibits into evidence pursuant to the
medical diagnosis or treatment exception to the hearsay
rule.9 Section 8-3 (5) of the Connecticut Code of Evi-
dence, titled ‘‘Statement for purposes of obtaining medi-
cal diagnosis or treatment,’’ provides an exception to
the hearsay rule. It provides: ‘‘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.’’ Conn. Code Evid. § 8-3 (5). ‘‘The admissibil-
ity of statements offered under the medical diagnosis
and treatment exception to the hearsay rule turns on
whether the declarant was seeking medical diagnosis
or treatment, and the statements are reasonably perti-
nent to achieving those ends.’’ (Internal quotation
marks omitted.) State v. Estrella J.C., 169 Conn. App.
56, 72, 148 A.3d 594 (2016).
The record reflects that the testimony at issue was
related to a medical diagnosis or treatment of the victim.
The medical reports prepared by medical practitioners
at the center were created in furtherance of medical
treatment of the victim. Therefore, the records and
related testimony were properly admitted under the
medical diagnosis or treatment exception to the hear-
say rule.10
II
The defendant next claims that the prosecutor made
several improper statements during her closing argu-
ment, thereby violating the defendant’s constitutional
right to a fair trial. Specifically, he claims that the prose-
cutor acted improperly in three ways: (1) by disparaging
defense counsel; (2) by expressing her personal opinion
and pointing to facts outside of the evidence; and (3)
by misstating the law and appealing to the emotions of
the jurors. The state argues that the prosecutor did not
advance any improper arguments and that, even if this
court were to find that she acted improperly, her actions
did not deny the defendant his due process rights to a
fair trial. We agree with the defendant as to the impro-
priety of one of the statements made by the prosecutor
but conclude that the defendant’s right to a fair trial
was not violated.
We review the defendant’s claims of prosecutorial
impropriety under a two step analytical process. ‘‘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 fairness of the trial. Whether that impropri-
ety was harmful and thus caused or contributed to a
due process violation involves a separate and distinct
inquiry. . . .
[T]he touchstone of due process analysis in cases
of alleged [harmful] prosecutorial [impropriety] is the
fairness of the trial, and not the culpability of the prose-
cutor. . . . The issue is whether the prosecutor’s
[actions at trial] so infected [the trial] with unfairness
as to make the resulting conviction a denial of due
process. . . . In determining whether the defendant
was denied a fair trial . . . we must view the prosecu-
tor’s [actions] in the context of the entire trial. . . .
[I]t is not the prosecutor’s conduct alone that guides
our inquiry, but, rather, the fairness of the trial as a
whole. . . . [A] determination of whether the defen-
dant was deprived of his right to a fair trial . . . must
involve the application of the factors set out . . . in
State v. Williams, 204 Conn. 523, 540, 529 A.2d 653(1987).’’ (Internal quotation marks omitted.) State v.
Bunn, 196 Conn. App. 549, 557–58, A.3d , cert.
denied, 335 Conn. 918, A.3d. (2020). These fac-
tors require us to consider ‘‘[1] the extent to which
the [impropriety] was invited by defense conduct or
argument . . . [2] the severity of the [impropriety]
. . . [3] the frequency of the [impropriety] . . . [4] the
centrality of the [impropriety] to the critical issues in
the case . . . [5] the strength of the curative measures
adopted . . . and [6] the strength of the state’s case.’’
(Internal quotation marks omitted.) State v. Albert D.,
196 Conn. App. 155, 162, A.3d , cert denied, 335
Conn. 913, A.3d (2020).
A
The defendant first claims that the prosecutor acted
improperly by disparaging defense counsel in three
statements. In the first instance, the defendant contends
that the prosecutor impugned the role of defense coun-
sel when the prosecutor argued to the jury that evidence
proffered by the state was admitted over objections by
defense counsel. The defendant also argues that the
prosecutor improperly disparaged the role of defense
counsel by criticizing her line of questioning when
cross-examining Brown.11 Finally, the defendant claims
that the prosecutor disparaged the defense when she
argued: ‘‘What happened to the child is a tragedy. But
here’s the bigger tragedy, that he is being blamed and
vilified in this courtroom for the unlawful acts of
[the defendant].’’
‘‘There is a distinction between argument that dispar-
ages the integrity or the role of defense counsel and
argument that disparages a theory of defense.’’ (Internal
quotation marks omitted.) State v. Salamon, 287 Conn.
509, 558, 949 A.2d 1092 (2008). Our review of the chal-
lenged portion of the prosecutor’s argument leads us
to conclude that these statements were directed at chal-
lenging and criticizing the theory of defense that the
victim’s behavioral issues existed before the alleged
abuse by the defendant. Therefore, these arguments do
not rise to the level of improper conduct by the pros-
ecutor.
B
Next, the defendant contends that the prosecutor
improperly expressed her personal opinion and alluded
to facts outside of the evidence. Specifically, the defen-
dant directs us to the following statements by the prose-
cutor: ‘‘Were the child’s behavior issues as a result of
the physical trauma inflicted by the defendant as pun-
ishment or was the child born bad? I don’t think [that]
children are born bad. We are all formed by our environ-
ment. Children learn from what they hear or see or
experience. No child is born bad. Bad children are
made.’’
‘‘It is well settled that, in addressing the jury, [c]oun-
sel must be allowed a generous latitude in argument,
as the limits of legitimate argument 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. . . . The prosecutor may not
express his own opinion, directly or indirectly, as to
the credibility of the witnesses. . . . Nor should a pros-
ecutor 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.
. . . Moreover, because the jury is aware that the prose-
cutor has prepared and presented the case and conse-
quently, may have access to matters not in evidence
. . . it is likely to infer that such matters precipitated
the personal opinions.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Singh, 259 Conn. 693,
712–13, 793 A.2d 226 (2002). ‘‘In deciding cases, how-
ever, [j]urors are not expected to lay aside matters
of common knowledge or their own observations and
experiences, but rather, to apply them to the facts as
presented to arrive at an intelligent and correct conclu-
sion. . . . Therefore, it is entirely proper for counsel
to appeal to a jury’s common sense in closing remarks.’’
(Internal quotation marks omitted.) State v. Rolli, 53
Conn. App. 269, 281, 729 A.2d 245, cert. denied, 249
Conn. 926, 733 A.2d 850 (1999).
We conclude that the prosecutor’s comments about
whether the victim’s behavioral problems were caused
by the defendant’s actions referred to issues addressed
in testimony by various witnesses throughout the trial.
Additionally, the prosecutor’s comments about why cer-
tain children are ‘‘bad’’ similarly refer to evidence pre-
sented during the trial about the victim’s behavioral
problems stemming from the PTSD caused by the abuse
from the defendant. Finally, the statements do not con-
stitute prosecutorial impropriety. Our Supreme Court
has stated: ‘‘Although prosecutors generally should try
to avoid using phrases that begin with the pronoun ‘I,’
such as ‘I think’ or ‘I believe,’ we recognize that the
‘use of the word ‘‘I’’ is part of our everyday parlance
and . . . because of established speech patterns, it
cannot always be easily eliminated completely from
extemporaneous elocution.’ . . . Therefore, if it is
clear that the prosecutor is arguing from the evidence
presented at trial, instead of giving improper unsworn
testimony with the suggestion of secret knowledge, his
or her occasional use of the first person does not consti-
tute misconduct.’’ (Citations omitted.) State v. Luster,
279 Conn. 414, 436, 902 A.2d 636 (2006). The prosecu-
tor’s comments encouraged the jurors to draw reason-
able inferences from the evidence. Moreover, these
comments also requested that the jurors draw infer-
ences from their own experiences and common knowl-
edge about children. See State v. Glenn, 97 Conn. App.
719, 735, 906 A.2d 705 (2006), cert. denied, 281 Conn.
913, 916 A.2d 55 (2007). We conclude, therefore, that
these comments were not improper.
C
The defendant’s final claim of prosecutorial impropri-
ety is that the prosecutor misstated the law and
appealed to the jurors’ emotions. In support of this
claim, the defendant points to the following statements
by the prosecutor during closing arguments: ‘‘Now the
alternative for you to consider, and again, this is . . .
under the statute, is whether this punishment of [the
defendant’s] nine year old son was cruel and wilful.
Now the state argues that the facts, and again I’m not
saying them all again, but all of the facts demonstrate
that the defendant did in fact maltreat and torture [the
victim] and that punishment was cruel and unlawful
punishment, and I am going to refer you to the [United
States] constitution, which . . . prevents cruel and
unusual punishment. Our government is not allowed to
use this type of punishment toward people who have
been convicted of crimes. Should the defendant be
allowed to do that to his child?’’
‘‘[P]rosecutors are not permitted to misstate the law
. . . .’’ (Internal quotation marks omitted.) State v.
Albert D., supra, 196 Conn. App. 167. The United States
constitution’s prohibition against cruel and unusual
punishment is irrelevant to the issue of whether the
defendant committed acts against the victim in violation
of § 53-20 (b) (1).12 The eighth amendment to the United
States constitution prohibits the government from
imposing cruel and unusual punishment. It is not impli-
cated in a defendant’s alleged conduct in a criminal
trial for alleged cruelty to persons. The prosecutor’s
comparison of the defendant’s alleged conduct to the
government’s constitutionally impermissible conduct
under the eighth amendment was misleading. The pros-
ecutor’s statement that the defendant’s actions consti-
tuted cruel and unusual punishment under the eighth
amendment to the United States constitution was a
misstatement of the law and therefore improper.
Having found that prosecutorial impropriety
occurred, ‘‘we ask whether the trial as a whole was
fundamentally unfair and [whether] the [impropriety]
so infected the trial with unfairness as to make the
conviction a denial of due process.’’ (Internal quotation
marks omitted.) State v. Albert D., supra, 196 Conn.
App. 177–78. As discussed previously in this opinion,
our determination of whether the defendant’s due pro-
cess right to a fair trial was denied as a result of the
impropriety is guided by an examination of the six fac-
tors set forth by our Supreme Court in State v. Williams,
supra, 204 Conn. 540. These factors are ‘‘[1] the extent
to which the [impropriety] was invited by defense con-
duct or argument . . . [2] the severity of the [impropri-
ety] . . . [3] the frequency of the [impropriety] . . .
[4] the centrality of the [impropriety] to the critical
issues in the case . . . [5] the strength of the curative
measures adopted . . . and [6] the strength of the
state’s case.’’ (Citations omitted.) Id.Applying the Williams factors, we conclude that the
prosecutor’s statement about the eighth amendment to
the United States constitution, although improper, did
not deprive the defendant of his due process right to
a fair trial. The first and fourth factors weigh in favor
of the defendant as the statement was not invited by
defense counsel and was directed to a central issue in
the trial, which was whether the defendant’s actions
were cruel and wilful under the cruelty to persons
charge. The other four factors, however, lead us to
conclude that the defendant’s right to a fair trial was
not abridged. As to the second and third factors, we
note that the improper reference to the eighth amend-
ment was made only once during closing argument and
that it could not be considered severe, as it was not
blatantly egregious. See State v. Fauci, 282 Conn. 23,
51, 917 A.2d 978 (2007) (noting that, in determining
severity of prosecutorial impropriety, court will ‘‘look
to whether the impropriety was blatantly egregious or
inexcusable’’). Further, ‘‘the severity of the impropriety
is often counterbalanced in part by the third Williams
factor, namely, the frequency of the [impropriety]
. . . .’’ (Internal quotation marks omitted.) State v.
Albert D., supra, 196 Conn. App. 179. Accordingly, we
find the second and third factors in favor of the state.
As to the fifth Williams factor, although there were
no specific curative instructions provided to the jury
beyond the standard instruction that arguments by law-
yers are not evidence, we note that, ‘‘[i]n the absence
of a showing that the jury failed or declined to follow the
court’s instructions, we presume that it heeded them.’’
(Internal quotation marks omitted.) Id., 180. Finally, the
strength of the state’s case mitigated the effect of the
prosecutor’s misstatement of the law. After reviewing
the prosecutor’s statement in light of these factors, we
agree with the state that the defendant was not deprived
of his due process right to a fair trial.
III
The defendant’s remaining claim is that the court
erred by failing to give the parental justification defense
instruction as to the situation prong of the risk of injury
to a child charge in count two of the information. In a
written request to charge and at trial, the defendant
argued that the parental justification instruction should
be given for count two. The court declined to do so.13
The defendant argues that our Supreme Court prece-
dent requires that the parental justification defense
‘‘applies to all offenses involving a parent’s use of rea-
sonable force against a child.’’ (Emphasis omitted.)
State v. Nathan J., 294 Conn. 243, 253, 982 A.2d 1067(2009). The defendant concedes, however, that Nathan
J. addresses only the act prong of risk of injury to a
child. We decline to extend the holding of Nathan J. to
apply the parental justification defense to the situation
prong at issue here. Further, the plain language of the
parental justification defense demonstrates that the
defense does not apply to the situation prong. We, there-
fore, are not persuaded by the defendant’s claim.
We begin by setting forth the relevant principles of
law. ‘‘If [a] defendant asserts a recognized legal defense
and the evidence indicates the availability of that
defense, such charge is obligatory and the defendant
is entitled, as a matter of law, to a theory of defense
instruction. . . . The defendant’s right to such an
instruction is founded on the principles of due process.’’
(Internal quotation marks omitted.) State v. Lynch, 287
Conn. 464, 470, 948 A.2d 1026 (2008). ‘‘A challenge to
the validity of jury instructions presents a question of
law over which this court has plenary review.’’ (Internal
quotation marks omitted.) Mann v. Reagan, 108 Conn.
App. 566, 576, 948 A.2d 1075 (2008).
The relevant defense in this case, the parental justifi-
cation defense, is set forth in General Statutes § 53a-
18, which provides in relevant part: ‘‘The use of physical
force upon another person which would otherwise con-
stitute an offense is justifiable and not criminal under
any of the following circumstances: (1) A parent, guard-
ian or other person entrusted with the care and supervi-
sion of a minor . . . may use reasonable physical force
upon such minor or . . . when and to the extent that
he reasonably believes such to be necessary to maintain
discipline or to promote the welfare of such minor
. . . .’’
Count two of the information asserts that the defen-
dant violated the situation prong of § 53-21 (a), which
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 . . . shall be guilty
of . . . a class C felony . . . .’’ ‘‘Health’’ in the situa-
tion prong includes the mental health of the child. See
State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997),
overruled in part on other grounds by State v. Romero,
269 Conn. 481, 490, 849 A.2d 760 (2004).
Determining whether the parental justification
defense of § 53a-18 should apply to the situation prong
of § 53-21 (a) (1) requires us to employ the tools of
statutory interpretation. ‘‘Issues of statutory construc-
tion raise questions of law, over which we exercise
plenary review. . . . The process of statutory interpre-
tation involves the determination of the meaning of the
statutory language as applied to the facts of the case,
including the question of whether the language does
apply. . . .
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . The test to deter-
mine ambiguity is whether the statute, when read in
context, is susceptible to more than one reasonable
interpretation.’’ (Footnote omitted; internal quotation
marks omitted.) Western Dermatology Consultants,
P.C. v. VitalWorks, Inc., 146 Conn. App. 169, 199, 78 A.3d
167 (2013), aff’d, 322 Conn. 541, 153 A.3d 574 (2016).
We first examine the language of the § 53a-18 (1),
which provides in relevant part that ‘‘[a] parent, guard-
ian or other person entrusted with the care and supervi-
sion of a minor . . . may use reasonable physical force
upon such minor . . . when and to the extent that he
reasonably believes such to be necessary to maintain
discipline or to promote the welfare of such minor
. . . .’’ The meaning and applicability of this defense
is plain and unambiguous: the defense applies only to
the use of reasonable physical force on a minor. The
situation prong of § 53-21 (a) (1) encompasses a wider
range of conduct beyond physical acts. Therefore, the
plain language of §53a-18 (1) makes clear that the
defense is available to only a narrow range of conduct
as provided for in the statute.
Accordingly, for a defendant to deploy the protection
afforded by the parental justification defense, the defen-
dant must be charged with committing some physical
act against a child. Both the defendant and the state rely
on Nathan J. to support their positions. The defendant
relies on Nathan J. to support his contention that the
parental justification defense must also be applied to
the situation prong of § 53-21 (a) (1). The state, in con-
trast, emphasizes that Nathan J. addressed only the act
prong of § 53-21 (a) (1), and, thus, the court’s reasoning
is inapplicable to the situation prong at issue here. In
Nathan J., the defendant was charged with assault in
the third degree, disorderly conduct, and risk of injury
to a child under the act prong of § 53-21 (a) (1). State
v. Nathan J., supra. 294 Conn. 248. The trial court
instructed the jury on the parental justification defense
as to the assault and disorderly conduct charges. Id.,
249. It also expressly instructed the jury that the defense
did not apply to the risk of injury charge. Id. The defen-
dant then appealed to this court, which determined
that the defense applied as a matter of law to conduct
charged under § 53-21 (a) (1). Id., 250. On appeal to
our Supreme Court, the state argued that the ‘‘blatant
physical abuse required under the risk of injury statute,’’
which is consistent with the judicial gloss established
in State v. Schriver, 207 Conn. 456, 466, 542 A.2d 686(1988), ‘‘is logically inconsistent with corporal punish-
ment that is reasonably necessary for purposes of
parental discipline, as required under [the] parental jus-
tification defense.’’ State v. Nathan J., supra, 250. The
court rejected this contention. The court discussed how
Schriver ‘‘left in place the authoritative judicial gloss
prescribed under our case law limiting the type of physi-
cal harm prohibited by the act prong of § 53-21 [(a)
(1)] to blatant physical abuse.’’ Id., 253. The court then
determined that the text of § 53a-18 (1) indicates that
it applies to all offenses involving a parent’s use of
reasonable force on a child. Id. It further determined
that it was not inconsistent with the requirement of
blatant physical abuse under § 53-21 (a) (1), as the state
argued, to apply the parental justification defense to
conduct brought under the act prong. Id., 254. The court
turned to the meaning of the words ‘‘blatant physical
abuse’’ and concluded that there is no reasonableness
component to ‘‘blatant physical abuse’’ that would con-
flict with the reasonableness inquiry inherent in the
parental justification defense. Id., 257. Accordingly, the
defense could be applied to such conduct.14 Id., 260.
The court concluded that it was improper for the jury
to be only ‘‘directed, in accordance to the Schriver
gloss, to consider whether the defendant’s conduct was
blatant physical abuse’’ and not consider the reason-
ableness of the defendant’s actions pursuant to the
parental justification defense. Id.
The court in the present case discussed Nathan J.
when it denied the defendant’s request to apply the
parental justification defense to the situation prong of
§ 53-21 (a) (1). The court stated that ‘‘the situation prong
is a different gloss.’’
As the defendant and the state both note, the charges
at issue in Nathan J. involved physical force. In seeking
to use the parental justification defense, the defendant
in Nathan J. argued that he used reasonable physical
force against the minor child because he believed that
it was necessary for the discipline and welfare of that
child. State v. Nathan J., supra, 294 Conn. 260. The
same logic does not apply to the situation prong. The
very purpose of the parental justification defense, as
evidenced by the plain language of § 53a-18 (1), is rooted
in the physical act committed against the child. The
situation prong goes beyond that scope of the parental
justification defense.15
In the present case, the defendant argued, both at
trial and in his appellate brief, that the state did not
explicitly make clear what theory—injury to life or limb,
health or morals of the child—it was arguing under the
situation prong. In his appellate brief, the defendant
argues that the state’s theory was that the defendant’s
conduct of physically disciplining the victim created the
situation that was likely to cause injury to the victim’s
health or morals. Thus, it was the act of disciplining
the victim itself that created the situation that harmed
the victim. Accordingly, the defendant argues, because
the physical discipline under the act prong caused the
harmful situation under the situation prong, and
because the defendant received the justification instruc-
tion on the ‘‘act,’’ he should also have received it on
the ‘‘situation.’’ This argument overlooks the plain lan-
guage of § 53a-18 (1): the parental justification defense
is available only for the specific circumstance in which
the defendant uses reasonable physical force that he
or she believes to be necessary to discipline or promote
the welfare of the child. As the court noted, the judicial
gloss on the act prong distinguishes it distinctly from
the situation prong. The court did not err in concluding
that the parental justification defense did not apply to
the situation prong of the risk of injury to a child charge
in count two of the information.
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 the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the victim or others through whom the
victim’s identity may be ascertained. See General Statutes § 54-86e.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 17a-101g provides in relevant part: ‘‘(e) If the Commis-
sioner of Children and Families, or the commissioner’s designee, has proba-
ble cause to believe that the child or any other child in the household is in
imminent risk of physical harm from the child’s surroundings and that
immediate removal from such surroundings is necessary to ensure the child’s
safety, the commissioner, or the commissioner’s designee, shall authorize
any employee of the department or any law enforcement officer to remove
the child and any other child similarly situated from such surroundings
without the consent of the child’s parent or guardian. The commissioner
shall record in writing the reasons for such removal and include such record
with the report of the investigation conducted under subsection (b) of
this section.
‘‘(f) The removal of a child pursuant to subsection (e) of this section
shall not exceed ninety-six hours. During the period of such removal, the
commissioner, or the commissioner’s designee, shall provide the child with
all necessary care, including medical care, which may include an examina-
tion by a physician or mental health professional with or without the consent
of the child’s parents, guardian or other person responsible for the child’s
care, provided reasonable attempts have been made to obtain consent of
the child’s parents or guardian or other person responsible for the care of
such child. During the course of a medical examination, a physician may
perform diagnostic tests and procedures necessary for the detection of child
abuse or neglect. If the child is not returned home within such ninety-
six-hour period, with or without protective services, the department shall
proceed in accordance with section 46b-129. . . .’’
2
We note that the defendant also has not complied with Practice Book
§ 67-4 (e) (3).
3
The defendant’s appellate briefs do not adequately address his claim
regarding the purported violation of his right to present a defense. The
briefs include only the relevant law without any further application to the
facts of the case. See Connecticut Coalition Against Millstone v. Connecti-
cut Siting Council, 286 Conn. 57, 87, 942 A.2d 245 (2008) (noting that when
‘‘issue is merely mentioned, but not briefed beyond a bare assertion of the
claim, it is deemed to have been waived’’ (internal quotation marks omitted)).
Accordingly, we decline to address this potential claim.
4
Specifically, the following colloquy occurred between defense counsel
and Brown:
‘‘Q. You’re familiar with the DSM, correct?
‘‘A. Correct.
‘‘Q. That’s the Diagnostic Statistical Manual.
‘‘A. Right. . . .
‘‘Q. And it’s generally accepted in the psychological community and mental
health community as an authoritative text, right?
‘‘A. Yes. . . .
‘‘Q. And you’re familiar with the diseases that are in here.
‘‘A. Yes.
‘‘Q. The mental illnesses that are described.
‘‘A. Yes. I mean I don’t have it memorized, but, yes, I’m familiar with
them. . . .
‘‘Q. You are familiar with oppositional defiant disorder.
‘‘A. Yes. . . .
‘‘Q. Thank you. Now, in the DSM, oppositional defiant disorder is defined
as a pattern of angry irritable mood, argumentative defiant behavior or
vindictiveness lasting at least six months, correct?
‘‘A. Yes, I believe so. You’re reading from it there so yes. . . .
‘‘Q: Can you not remember off the top of your head the specific language
from the definition of oppositional defiant disorder?
‘‘A. When we’re diagnosing, we’re not doing it by just memory. We have
the tools with us.
‘‘Q. Right. So, if I may, Your Honor? If I may approach, I’m happy to
provide this for you. I believe this is something you were familiar with at
one point, and this is what you would use to diagnosis, correct?
‘‘A. Right.’’
5
In the defendant’s reply brief, he argues that, because the court refer-
enced the motion in limine, the court ruled on it ‘‘incrementally.’’ He argues
that, because the court referenced the motion before evidence, ‘‘[it] was
[an] ongoing open motion dependent upon witness’ testimony . . . [that]
was argued and ruled upon incrementally.’’ It is well established that argu-
ments cannot be raised for the first time in a reply brief. See State v. Gavin,
242 Conn. 296, 312, 699 A.2d 921 (1997). Accordingly, we do not review
this claim.
6
These exhibits included medical reports from three separate visits the
victim made to the center.
7
The court overruled the defendant’s objections and stated: ‘‘The court
finds that they are [admissible] pursuant to the exception, the medical
records and treatment.’’
8
During Walsh’s testimony about her examination of the victim and her
notes from that examination, the prosecutor proffered the exhibits into
evidence. The court stated: ‘‘This was subject to discussion outside the
presence of the jury. The court relied on the hearsay exception to medical
records, and it’s being offered pursuant to that motion as a full exhibit.’’
The court then asked defense counsel, ‘‘Counsel, any further objection?’’ In
response, defense counsel merely stated, ‘‘No, I just reserve the issues [that]
were raised.’’
9
See footnote 7 of this opinion.
10
The defendant argues that the court permitted the exhibits at issue, and
the subsequent testimony regarding their contents, to be admitted as expert
opinion evidence pursuant to § 7-3 of the Connecticut Code of Evidence. This
contention is belied by the record. In overruling the defendant’s objection
to the admission of the documents from the center, the court stated: ‘‘The
court finds that they are [admissible] pursuant to the exception, the medical
records and treatment.’’
11
The defendant argues that the prosecutor ‘‘sarcastically’’ argued to the
jury, ‘‘[a]pparently . . . Brown had to consider every other mental disease
and disorder in that [Diagnostic Statistical Manual], the psychiatric bible
that was held up for you. That’s a very thick book.’’
12
As discussed previously in this opinion, the defendant was convicted
of cruelty to persons in violation of § 53-20 (b) (1), which provides: ‘‘Any
person who, having the control and custody of any child under the age of
nineteen years, in any capacity whatsoever, intentionally maltreats, tortures,
overworks or cruelly or unlawfully punishes such child or intentionally
deprives such child of necessary food, clothing or shelter shall be guilty of
a class D felony.’’
13
The court instructed the jury as follows: ‘‘After you have considered all
of the evidence in this case, if you find that the state has proved beyond a
reasonable doubt each element of the crimes as charged, you must then
consider whether the defendant acted with parental justification in the
discipline of [the victim]. You must consider this defense in connection with
count one, risk of injury to a minor. The state alleges that the act of the
defendant must cause blatant physical abuse to [the victim]. The parental—
this defense, parental justification, is to be applied to that charge.
‘‘If you find the state has proven beyond a reasonable [doubt] the elements
of risk of injury, then you consider whether or not the state has disproven
. . . this justification defense. There’s no burden for the defense to prove
anything. The defense was raised with evidence in the trial through perhaps
the testimony of some witnesses as well as the stipulation read to you called
admissions regarding the physical discipline. That’s raised.
‘‘So, in order to determine whether or not the state has disproven the
justifiable discipline of justification, parental justification, you must first
find beyond a reasonable doubt unanimously that the state has proven the
elements of the crime. Count one, risk of injury. If you find the state has
not proven beyond a reasonable doubt the elements of the crime, then, of
course, you need not consider this justification defense.
‘‘Now, in considering the evidence, you find the state has proven beyond
a reasonable doubt each of the elements of the crime, you must go on and
consider whether the defendant acted with parental justification in the
discipline of [the victim]. You must consider this offense in connection with
counts one, risk of injury with the act prong, count three, serious—assault
in the second degree with a dangerous instrument, count three, count four,
assault in the second degree and count five, cruelty to persons, [the defense]
does not apply to [the] situation prong on count two.’’
The court provided further instructions on the elements on the crimes
with which the defendant was charged and reiterated that the defense did
not apply to the situation prong.
14
The court noted that ‘‘a forceful spanking might well qualify as blatant
physical abuse because it is an obvious, wilful, nonaccidental force against
a child.’’ State v. Nathan J., supra, 294 Conn. 260.
15
In Nathan J., the court noted that ‘‘[t]he reach of the situation prong
of § 53-21 (a) (1) is actually broader than that of the act prong.’’ State v.
Nathan J., supra, 243 Conn. 264 n.13; see State v. Payne, supra, 240 Conn.
782 (‘‘a defendant need not touch a child in order to violate the [situation
prong of § 53-21 (a) (1)]’’).