State v. Daniel W.

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STATE OF CONNECTICUT v. DANIEL W.*
(AC 39844)
Prescott, Elgo and Norcott, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree, risk of injury
to a child, sexual assault in the fourth degree, conspiracy to commit
risk of injury to a child, attempt to commit sexual assault in the first
degree and attempt to commit risk of injury to a child in connection
with his alleged sexual abuse of the minor victim, A, the defendant
appealed to this court. He claimed, inter alia, that the trial court improp-
erly admitted certain evidence of his alleged uncharged, prior sexual
misconduct as to another minor victim, C, and improperly allowed a
social worker, who had testified as a constancy of accusation witness,
to testify as an expert regarding delayed disclosures of and common
behaviors by child victims of sexual abuse. The defendant, who was
married to A’s sister, J, had sexually abused A when A would visit their
home to spend time with J and other relatives. The abuse occurred
when the defendant and A were alone, and in the presence of J and M,
the defendant’s minor daughter from a previous marriage. J also engaged
in certain sexual abuse of A at the defendant’s behest, and when the
defendant and J engaged in certain sexual conduct in front of A, he also
had J ask A to join them in that conduct. Held:
1. The trial court did not abuse its discretion in admitting certain uncharged
sexual misconduct evidence through the testimony of C in order to
prove that the defendant had a propensity to sexually assault young
girls: the defendant’s initial advances toward C and A were sufficiently
similar, as both girls were assaulted when they were overnight guests
in his home, the defendant commenced the abuse while the girls were
sleeping, the acts of assault were nearly identical in that C and A both
testified that the defendant reached under their clothes and touched
their vagina, and may have taken photographs of them, and the abuse
occurred with others in the same room; moreover, C and A were similarly
situated because they shared a similar relationship with the defendant
through J and M, which facilitated the defendant’s abuse of C and A by
providing him access to them, C and A were both prepubescent and
similar in age when certain of the abuse occurred, and the abuse of C
occurred when she was only one year older than A had been when the
abuse of A ended, and although the defendant’s abuse of A was more
severe and more frequent than his abuse of C, those differences were
due to the fact that the defendant had access to C on only one occasion,
whereas he had frequent access to A; furthermore, the uncharged mis-
conduct evidence was not unduly prejudicial because it allowed the
jury to conclude that the defendant had a propensity to sexually assault
young girls, which is the precise purpose for which such evidence is
allowed to be admitted, the defendant offered no explanation regarding
how the uncharged misconduct evidence tended to show something
other than that propensity, and it was unlikely that C’s testimony improp-
erly aroused the emotions of the jury, as the misconduct as to her was
far less egregious than that as to A.
2. The defendant could not prevail on his claim that the trial court improperly
permitted the social worker to testify as an expert on delayed disclosure
by and common behaviors of child sexual abuse victims, which was
based on the defendant’s assertion that she was unqualified to testify
as an expert and had previously testified as a constancy of accusa-
tion witness:
a. The defendant’s unpreserved claim that the social worker’s testimony
exceeded the bounds of permissible constancy of accusation evidence
was not reviewable, as the record indicated that the trial court did not
understand the defendant to have objected to her testimony because it
exceeded the proper scope of the constancy of accusation doctrine, and
the defendant’s many stated bases for his objection at trial were not
consistent with the claim he made on appeal.
b. The trial court did not abuse its discretion in determining that the
social worker was qualified to render an expert opinion on the topic
of delayed disclosure; the social worker had practical experience and
relevant educational background regarding the issue of delayed disclo-
sure, as she had studied characteristics of child victims of sexual abuse
in obtaining her bachelor’s and master’s degrees, she had received train-
ing on how to handle a student’s first disclosure of abuse and, while
she was employed as a school social worker and was the director of a
youth group, she had been told by approximately fourteen students that
they had been sexually abused.
3. The defendant’s claim that he was deprived of a fair trial as a result of
certain improprieties committed by the prosecutor during trial and clos-
ing argument was unavailing; even if the prosecutor’s comments during
closing argument and questions on cross-examination constituted impro-
priety, the defendant was not deprived of a fair trial because even
though the prosecutor’s comments were not invited by the defendant
and pertained to the critical issue of whether A and C had a motive to
lie about the defendant’s sexual abuse of them, the potential impropriety
was neither severe nor frequent, the trial court’s instructions to the jury
were sufficient to correct any confusion the jury may have had regarding
the state’s burden of proof, and the state’s case was strong overall, as
A’s testimony was directly corroborated in part by J, and A’s allegations
were further corroborated by C’s testimony concerning certain
uncharged misconduct by the defendant and by the defendant’s own
written statements in certain letters he had written to J that were admit-
ted into evidence.
Argued November 16, 2017—officially released March 6, 2018
Procedural History
Substitute information charging the defendant with
seven counts of the crime of risk of injury to a child,
five counts of the crime of sexual assault in the first
degree, and with one count each of the crimes of sexual
assault in the fourth degree, conspiracy to commit risk
of injury to a child, attempt to commit sexual assault
in the first degree and attempt to commit risk of injury
to a child, brought to the Superior Court in the judicial
district of Tolland, where the court, Graham, J., granted
the state’s motion to introduce certain evidence; there-
after, the matter was tried to the jury; subsequently,
the court denied the defendant’s motion to preclude
certain evidence; verdict of guilty; thereafter, the court
denied the defendant’s motion for a new trial and ren-
dered judgment in accordance with the verdict, from
which the defendant appealed to this court. Affirmed.
Alice Osedach, senior assistant public defender, for
the appellant (defendant).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Matthew C. Gedansky, state’s
attorney, and Elizabeth C. Leaming, senior assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Daniel W., appeals
from the judgment of conviction, rendered after a jury
trial, of six counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2); five counts of sexual
assault in the first degree in violation of General Stat-
utes § 53a-70 (a) (2); one count of attempt to commit
sexual assault in the first degree in violation of General
Statutes §§ 53a-70 (a) (2) and 53a-49; one count of sex-
ual assault in the fourth degree in violation of General
Statutes § 53a-73a (a) (1) (A); one count of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(1); one count of conspiracy to commit risk of injury
to a child in violation of General Statutes §§ 53-21 (a)
(2) and 53a-48; and one count of attempt to commit
risk of injury to a child in violation of General Statutes
§§ 53-21 (a) (2) and 53a-49. On appeal, the defendant
claims that (1) the trial court improperly admitted evi-
dence of his prior misconduct; (2) the trial court
improperly allowed a constancy of accusation witness
to testify as an expert regarding delayed disclosure;
and (3) the prosecutor committed improprieties that
deprived the defendant of his right to a fair trial.1 We
disagree and, accordingly, affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. A was seven years old when the defendant began
sexually abusing her in 2004. A met the defendant one
year earlier, when her brother was enrolled in one of
his martial arts classes. A’s older sister, J, brought their
brother to and from the class.
When J became eighteen years old, she and the defen-
dant, who was thirty-six years old at the time, began
dating. Soon after, J moved out of her parents’ house
and began living with the defendant in an apartment in
Rockville. She and the defendant married and eventu-
ally had three children together.
A often stayed at J’s and the defendant’s apartment on
weekends. She enjoyed spending time with her sister,
nieces and nephews, and the defendant’s daughter from
a previous marriage, M, who is close in age to A.2 A
slept in a bed in M’s room when she visited.
On one such weekend when A was seven, the defen-
dant came into M’s room at night, where M and A were
sleeping, put his hand underneath A’s pajama shirt, and
began touching her chest. The defendant then put his
hands down A’s pajama pants and touched her vagina.
A pretended to be asleep during this encounter. There-
after, the defendant abused A in a similar manner on
multiple occasions.
Over time, the defendant’s abuse of A increased in
severity. Specifically, the defendant would enter M’s
room at night, go over to A’s bed, rub A’s vagina, and
abused her in this way ‘‘[t]oo many times to count.’’
On other occasions, the defendant put his penis in A’s
mouth, at times ejaculating. Furthermore, A believes
that the defendant often photographed her naked body,
as he sometimes came into her room and pulled her
clothes off, after which she would see flashes of light.
During each instance of abuse, A kept her eyes closed
and pretended to be asleep because she was afraid that
the defendant, who had a bad temper and held a fourth-
degree black belt, might hurt her. A was still able to
identify the defendant as her abuser, however, because
(1) his hands felt like a man’s hands, and the defendant
was the only adult male in the apartment, and (2) the
defendant, who drank often, smelled of alcohol. Despite
the abuse, A continued to visit J’s and the defendant’s
apartment, as she loved spending time with her relatives
and was determined not to let the defendant ‘‘ruin [her]
fun with them.’’
On another occasion when A was eight years old, the
defendant came into M’s room and picked A up from
her bed. M woke up and asked her father what he was
doing. The defendant told her that he was bringing A
to the bathroom. The defendant then carried A to his
and J’s bedroom, laid her down on their bed, and per-
formed oral sex on her. Afterward, he carried A back
to her bed.
Another time, the defendant, J and A were in the
living room watching a movie when J began performing
fellatio on the defendant. The defendant told J to ask
A if she wanted to join. J then twice asked A if she
wanted to participate. A declined and stared at the
television. When the movie finished, A walked into M’s
room. No further abuse occurred on that night.
When A was ten years old, the defendant again picked
A up from her bed and carried her to his bedroom. A
awoke and heard J ask the defendant, ‘‘what if she
wakes up?’’ to which the defendant replied, ‘‘don’t
worry, she shouldn’t.’’ The defendant then encouraged
J to fondle A, and J put her hand up A’s shirt and began
touching her chest. Meanwhile, the defendant pulled
down A’s pants and began performing oral sex on her.
Eventually, the defendant stopped and carried A back
to her bed.
The last instance of abuse occurred when A was
twelve years old. On that night, A fell asleep on the
couch in the living room while watching television. At
some point, A heard the defendant come home from
work. Thereafter, A heard a ‘‘rustling’’ sound, which
she later learned was a condom being opened. The
defendant then climbed on top of A and attempted to
penetrate her vagina with his penis. When he was unable
to fully do so, he stopped and walked out of the room.
Sometime later J came into the living room. A cried out
to her, and revealed to her sister that the defendant
had tried to molest her. J told A that she would yell at
the defendant and that it would not happen again. J
then walked out of the room and came back with the
defendant, who was ‘‘freaking out, saying how he [was]
going to go to jail . . . [and] not going to see his kids
anymore.’’ J told him not to worry and that ‘‘[A was]
not going to do that.’’ After this incident A rarely, if
ever, returned to J’s and the defendant’s apartment.
In 2012, the defendant lost his job and he, J, and their
children moved into J’s parents’ house, where A also
lived. While he was living in the family home, A often
voiced her dislike of the defendant and kept her bed-
room door locked.
In June, 2013, the defendant was arrested on charges
stemming from a domestic violence incident during
which he struck J in the face in front of their son. J’s
and A’s father subsequently ejected the defendant from
the house, and he did not return.
For years, A did not disclose the abuse because she
feared that the news would break up her sister’s family.
Furthermore, A felt betrayed by J’s response to her
revelation that the defendant had tried to molest her.
In 2013, however, the defendant was arrested for
sexually abusing another girl.3 When this happened,
A’s father asked her whether the defendant had also
sexually abused her. A responded that the defendant
had tried to put his hands down her pants, but refused
to say anything more. When A’s father suggested
reporting the abuse to the police, she said that she did
not want to because her classmates would find out. A’s
father, wanting to protect A, did not tell his wife or
anyone else about the conversation.
On March 6, 2014, when A was seventeen years old,
she attended a youth group meeting at her church. Suzy
Williams, an adult mentor for the group and a social
worker, often brought A to the meetings. After the meet-
ing, A told Williams that it was the best day of A’s life
because the man who had sexually abused her for years
had been arrested, and she would never have to see
him again. A also told Williams that the abuser was
her brother-in-law, who was married to her sister, J.
Williams asked whether the defendant had had sex with
A, and she responded that he had ‘‘went as far as he
could go.’’
Williams, who was a mandated reporter of suspected
child abuse, alerted the Department of Children and
Families (department) and the police as to what A had
told her. The defendant subsequently was arrested on
charges arising from his abuse of A and tried before
a jury.
At trial, the court admitted into evidence three letters
written by the defendant to J.4 In the letters, the defen-
dant, angry that J was not writing him back, threatened
to reveal her role in A’s abuse. Specifically, the defen-
dant stated that J ‘‘not only [knew] what was going on
but . . . helped and supported in it,’’ and that, on many
nights, J made arrangements for the older children so
that they were not in the house, presumably to facilitate
the defendant’s abuse of A. The defendant also wrote
that the police wanted him ‘‘to confirm that [J] gave
[him] a BJ in front of [A].’’
The defendant was subsequently found guilty by the
jury on all charges contained in the state’s substitute
information and sentenced to a total effective term of
twenty-nine years incarceration followed by sixteen
years of special parole. This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims that the trial court improp-
erly admitted into evidence uncharged misconduct of
the defendant through C, who testified that the defen-
dant sexually abused her. Specifically, the defendant
argues that the uncharged misconduct was not suffi-
ciently similar to the charged conduct, and that the
prejudicial effect of its admission outweighed its proba-
tive value. We disagree.
The following additional facts and procedural history
are relevant to the resolution of this claim. On July 30,
2015, the state filed a motion to join for trial three
separate cases alleging sexual misconduct against the
defendant. On August 26, 2015, the defendant filed an
objection to the state’s motion for joinder. That same
day, the court held a hearing on the state’s motion. At
the hearing, the state amended its motion, requesting
to join only two of the three cases—those involving A
and C. The state argued that joining those two cases
was appropriate because the evidence in each case
would likely be cross admissible pursuant to the stan-
dard for introduction of uncharged sexual misconduct
set forth in State v. DeJesus, 288 Conn. 418, 953 A.2d
45 (2008). The defendant responded that doing so would
substantially prejudice him because the severity of mis-
conduct alleged in the case involving A was far greater
than that alleged in the case involving C.
The court denied the state’s motion, finding that,
although the respective incidents of alleged abuse as
to A and C were not too remote in time, and C and A
were similarly situated, the alleged abuse of A and C
was not sufficiently similar to warrant trying the cases
together. Specifically, the court found that the defen-
dant’s abuse of A was far greater in duration, frequency,
and invasiveness. Moreover, the court found that intro-
ducing evidence of the defendant’s alleged abuse of A
in the trial concerning his alleged abuse of C would be
more prejudicial than probative. The court made clear,
however, that its ruling did not preclude the admissibil-
ity of the defendant’s alleged abuse of C in the trial
concerning his abuse of A.
On September 28, 2015, the defendant filed a motion
in limine in the present case, in which he sought to
preclude the admission of uncharged misconduct evi-
dence at trial, arguing that any such evidence was not
relevant and, even if deemed relevant, its prejudicial
effect outweighed its probative value. The next day, the
state filed a notice of its intent to introduce uncharged
misconduct evidence at trial ‘‘to establish the defen-
dant’s propensity to sexually assault young girls . . . .’’
On October 5, 2015, the court heard argument on the
defendant’s motion in limine. At that time, the prosecu-
tor made an offer of proof regarding the anticipated
testimony of C. Specifically, the state proffered that (1)
C, like A, was a minor when she was allegedly abused
by the defendant; (2) C was friends with the defendant’s
daughter, M, and was ‘‘like a little sister’’ to J; (3) on
the day of the alleged abuse, C spent the night at the
defendant’s house and fell asleep on the couch in the
living room watching a movie with the defendant and
J; (4) on three separate occasions throughout the night
and into the morning the defendant attempted to touch
C’s vagina while she was sleeping, both over and under
her clothes; and (5) C believed that the defendant also
may have taken photographs of her.
The state argued that the uncharged misconduct evi-
dence was relevant because it was not too remote in
time to the last alleged incident of abuse of A, which
had occurred about one year prior. The state also
argued that the charged and uncharged misconduct
were sufficiently similar because C, like A, alleged that
the defendant had touched her vagina over and under
her clothes while she was sleeping. Furthermore, the
state argued that the escalation of the abuse of A did
not preclude admissibility of C’s testimony because the
defendant had access to C for only a short period of
time and, therefore, the defendant did not have an
opportunity to escalate his abuse of her. Finally, the
state argued that the prejudicial effect of the uncharged
misconduct evidence did not outweigh its probative
value because it supported the defendant’s propensity
to sexually assault young girls, and the defendant’s
alleged abuse of C was far less severe than that of A.
In response, the defendant argued that the uncharged
misconduct evidence was ‘‘detrimental’’ to him, and
requested that, because the state had not proffered the
live testimony of C, the court defer ruling on its motion
until the defense could voir dire her.
The court subsequently granted the state’s motion to
introduce uncharged misconduct evidence through C,
provided that C testified consistently with the state’s
proffer at trial. In doing so, the court concluded that
the state’s proffer satisfied the test set forth in DeJesus
and that the probative value of the evidence outweighed
its prejudicial effect.
At trial, C testified consistently with the state’s prof-
fer. Specifically, she testified that she was a childhood
friend of the defendant’s daughter, M. During the fall
of 2011, J reached out to C, who was thirteen years
old at the time, to arrange a sleepover with M at the
defendant’s apartment. When C arrived, however, M
was not there. Instead, C spent the day with J and her
two sons. That evening, J and C watched movies in the
living room. The defendant arrived home at approxi-
mately 11 p.m. C fell asleep on the couch early the next
morning, at about 3 a.m.
A short while later, C awoke to the defendant trying
to touch her vagina over her sweatpants. C pushed him
away, told him to move, and went back to sleep. Not
long after that, C awoke again to the defendant touching
her vagina—this time under her clothes. She pushed
him away and asked him what he was doing. C then
awoke a third time to the defendant grabbing her vagina
over her sweatpants. This time, C asked the defendant,
‘‘[w]hat the hell was wrong with [him].’’ The defendant
grabbed C’s arm and told her not to say anything. C
then told J, who was also in the living room during the
three incidents, what had happened. J responded that
the defendant must have thought C was her. C told J
she was lying and called her guardian to come pick
her up.
After C testified, the court gave the jury a limiting
instruction regarding the proper use of uncharged mis-
conduct evidence. Specifically, the court instructed the
jury that evidence of the defendant’s misconduct
toward C was not sufficient to prove that the defendant
was guilty of the crimes charged. The court further
instructed the jury that the state still had the burden
of proving every element of the crimes charged beyond
a reasonable doubt. In its final charge, the court
instructed the jury a second time about the proper use
of uncharged misconduct evidence.5
On October 26, 2015, after the defendant was found
guilty, he filed a motion for a new trial wherein he
claimed, inter alia, that the court improperly admitted
the uncharged misconduct evidence. On January 8,
2016, after argument, the court denied the defen-
dant’s motion.
We begin our analysis of the defendant’s claim by
setting forth the applicable standard of review. ‘‘The
admission of evidence of prior uncharged misconduct
is a decision properly within the discretion of the trial
court. . . . [Every] reasonable presumption should be
given in favor of the trial court’s ruling. . . . [T]he trial
court’s decision will be reversed only where abuse of
discretion is manifest or where injustice appears to
have been done.’’ (Internal quotation marks omitted.)
State v. Heck, 128 Conn. App. 633, 638, 18 A.3d 673,
cert. denied, 301 Conn. 935, 23 A.3d 728 (2011).
Turning to the applicable law, as a general rule, prior
misconduct evidence is inadmissible to prove the defen-
dant’s bad character or criminal tendencies. See Conn.
Code Evid. § 4-5 (a) (‘‘[e]vidence of other crimes,
wrongs or acts of a person is inadmissible to prove the
bad character, propensity, or criminal tendencies of
that person except as provided in subsection [b]’’). In
State v. DeJesus, supra, 288 Conn. 470, however, our
Supreme Court recognized ‘‘a limited exception to the
prohibition on the admission of uncharged misconduct
evidence in sex crime cases to prove that the defendant
had a propensity to engage in aberrant and compulsive
criminal sexual behavior.’’ (Emphasis in original.) This
exception to the admission of propensity evidence was
subsequently codified in § 4-5 (b) of the Connecticut
Code of Evidence.
Under § 4-5 (b) of the Connecticut Code of Evidence
and DeJesus, evidence of uncharged sexual misconduct
is admissible ‘‘if it is relevant to prove that the defendant
had a propensity or a tendency to engage in the type
of aberrant and compulsive criminal sexual behavior
with which he or she is charged.’’ State v. DeJesus,
supra, 288 Conn. 473. ‘‘[E]vidence of uncharged miscon-
duct is relevant to prove that the defendant had a pro-
pensity or a tendency to engage in the crime charged
only if it is: (1) . . . not too remote in time; (2) . . .
similar to the offense charged; and (3) . . . committed
upon persons similar to the [complaining] witness.’’
(Internal quotation marks omitted.) Id. In addition, the
court must also find that the probative value of the
evidence ‘‘outweighs the prejudicial effect that invari-
ably flows from its admission.’’ (Internal quotation
marks omitted.) Id.
To begin, the defendant concedes, and we agree, that
the charged and uncharged misconduct was not too
remote in time. The abuse of A occurred between 2004
and 2010, and the abuse of C occurred in 2011. Because
the defendant’s abuse of C occurred only one year after
the last instance of abuse with respect to A, the
uncharged conduct is not too remote in time relative
to the charged conduct. See State v. Acosta, 326 Conn.
405, 415, 164 A.3d 672 (2017) (holding that twelve year
gap between charged and uncharged conduct was not
too remote); State v. Jacobson, 283 Conn. 618, 632–33,
930 A.2d 628 (2007) (ten year gap was not too remote);
State v. Romero, 269 Conn. 481, 498, 849 A.2d 760 (2004)
(nine year gap was not too remote).
The defendant does, however, challenge the court’s
finding that the uncharged misconduct is sufficiently
similar to the charged conduct under DeJesus and § 4-5
(b) of the Connecticut Code of Evidence. The defendant
argues that the uncharged and charged conduct is dis-
similar because the defendant’s abuse of A was more
frequent and severe than his abuse of C.
‘‘It is well established that the . . . conduct at issue
need only be similar—not identical—to sustain the
admission of uncharged misconduct evidence.’’ (Inter-
nal quotation marks omitted.) State v. Acosta, supra,
326 Conn. 416. Although it is true that ‘‘frequency and
severity are factors relevant to the similarity of abuse
analysis’’; State v. Antonaras, 137 Conn. App. 703, 719,
49 A.3d 783, cert. denied, 307 Conn. 936, 56 A.3d 716
(2012); ‘‘[i]n a number of cases, our Supreme Court and
this court have looked to the initial sexual advances of
the defendant in comparing the similarity of the
uncharged misconduct to the charged abuse, especially
when the uncharged misconduct witnesses rebuffed the
advances or the defendant otherwise was prevented
from abusing them.’’ (Emphasis added.) Id., 717–18.
Thus, ‘‘differences in the severity of misconduct may
not illustrate a behavioral distinction of any significance
when a victim rebuffs or reports the misconduct.’’
(Internal quotation marks omitted.) State v. Acosta,
supra, 416.
Undoubtedly, the defendant’s abuse of A was more
severe, and more frequent, than his abuse of C. The
differences in severity and frequency of the abuse, how-
ever, are due to the fact that (1) the defendant had
access to C on only one occasion, whereas he had
frequent access to A, and (2) C rebuffed his advances.
When these circumstances are present, our case law
directs us to consider whether the defendant’s initial
sexual advances toward each witness were sufficiently
similar in analyzing the second relevancy prong of
DeJesus, rather than comparing the severity and fre-
quency of the conduct overall. See State v. Antonaras,
supra, 137 Conn. App. 717–19.
In the present case, there were significant similarities
between the defendant’s initial advances toward C and
A. Both girls were assaulted when they were staying
as overnight guests in the defendant’s home. See id.,
719–21 (location of abuse is factor courts consider in
evaluating similarity of charged and uncharged miscon-
duct; abuse of three victims occurred either in defen-
dant’s vehicle or residence); see also State v. L.W., 122
Conn. App. 324, 333–34, 999 A.2d 5 (charged and
uncharged conduct sufficiently similar where, ‘‘[i]n both
instances, the alleged sexual misconduct occurred sur-
reptitiously and in the defendant’s residence’’), cert.
denied, 298 Conn. 919, 4 A.3d 1230 (2010). Furthermore,
the defendant commenced the abuse while the girls
were sleeping. See State v. Hickey, 135 Conn. App. 532,
546, 43 A.3d 701 (charged and uncharged misconduct
sufficiently similar in part because defendant’s abuse
of both victims occurred when they were asleep at
his residence), cert. denied, 306 Conn. 901, 52 A.3d
728 (2012).
Moreover, the acts of assault themselves were nearly
identical—both witnesses testified that the defendant
reached underneath their clothes and touched their
vagina, and may have taken photographs of them.
Finally, the defendant’s abuse of both witnesses
occurred with others in the same room. The defendant
abused A while she was sleeping in the same bedroom
as his daughter, M, and abused C when J was in the
room. See State v. Eddie N. C., 178 Conn. App. 147,
161, 174 A.3d 803 (2017) (whether abuse occurred in
vicinity of others is factor courts consider in evaluating
similarity of charged and uncharged conduct;
uncharged conduct was sufficiently similar to charged
conduct in part because abuse of both witnesses
occurred in vicinity of family members), cert. denied,
327 Conn. 1000, A.3d (2018). Thus, the defen-
dant’s initial advances toward C and A were suffi-
ciently similar.6
The third relevancy prong of DeJesus requires us to
evaluate whether the uncharged misconduct was com-
mitted against an individual similar to the complaining
witness. State v. DeJesus, supra, 288 Conn. 473. The
defendant appears to argue that A and C are dissimilar
because ‘‘of the defendant’s different relationship with
each complainant.’’ Specifically, C, unlike A, was not
related to the defendant’s wife. The defendant further
argues that the two are dissimilar because A was seven
years old when the abuse began while C was thirteen,
making her ‘‘more likely to have reached puberty
. . . .’’
‘‘As with conduct, the victim[s] . . . at issue need
only be similar—not identical—to sustain the admission
of uncharged misconduct evidence. . . . Age and
familial status may suggest victim similarities. (Citation
omitted; internal quotation marks omitted.) State v.
Acosta, supra, 326 Conn. 417–18.
The defendant is incorrect that A and C are dissimilar
because he shared a familial relationship with A and not
C. Certainly, courts have taken into account whether the
misconduct and complaining witness share a familial
relationship with the defendant in evaluating the wit-
nesses’ similarity. The reason for this, however, is that
the familial relationship often facilitates the abuse
because it provides the defendant access to the victims.
See State v. Devon D., 321 Conn. 656, 667, 138 A.3d 849
(2016) (‘‘[b]ecause of the familial relationship [that the
misconduct and complaining witnesses shared with the
defendant], the defendant had access to and time alone
with each victim’’). What is significant is not that those
relationships are familial, but that the misconduct and
complaining witness share a similar relationship with
either the defendant, or another individual, through
whom the defendant is able to gain access to them.
Here, it was each girl’s relationship to J and M—not
the defendant—that allowed the defendant access to
them. During the hearing on the defendant’s motion in
limine to exclude uncharged misconduct evidence, the
state proffered that A visited the defendant’s apartment
to spend time with her sister, J, as well as the defen-
dant’s daughter, M, with whom she shared a friendship.
With respect to C, the state proffered that she spent
the night at the defendant’s apartment because of her
friendship with M. The state further proffered that C
was ‘‘like a little sister to [J] as well.’’ Thus, A and C
were similarly situated in that they were connected
to the defendant through J and M, and those similar
relationships ‘‘offered the defendant access to [them]
and the opportunity for his actions.’’ State v. Acosta,
supra, 326 Conn. 418; see also State v. George A., 308
Conn. 274, 297, 63 A.3d 918 (uncharged misconduct
witness and complaining witness were sufficiently simi-
lar despite fact that only complaining witness was
related to defendant).
Furthermore, A and C were both prepubescent and
similar in age when the abuse occurred. Although the
defendant’s abuse of A began when she was seven, it
continued until she was twelve years old. The defendant
abused C when she was thirteen, only one year older
than A had been when the abuse ended. Thus, the court
did not abuse its discretion in concluding that A and C
were sufficiently similar individuals. See State v. Allen,
140 Conn. App. 423, 434–35, 59 A.3d 351 (uncharged
misconduct witness, who alleged that defendant abused
her between ages of nine and fifteen, and complaining
witness, who alleged that defendant abused her
between ages of seven and eleven, were sufficiently
similar), cert. denied, 308 Conn. 934, 66 A.3d 497 (2013).
Having determined that the court did not abuse its
discretion in concluding that the uncharged misconduct
evidence was relevant to prove that the defendant had
a propensity to engage in aberrant sexual misconduct,
we now address the defendant’s claim that the prejudi-
cial impact of the uncharged misconduct evidence
‘‘greatly outweighed [its] limited probative value
. . . .’’ Specifically, the defendant argues that C’s testi-
mony allowed the state to argue that he ‘‘had a tendency
or propensity to sexually abuse young girls,’’ and caused
the jury to believe that he ‘‘was a brazen and persis-
tent abuser.’’
‘‘In balancing the probative value of such evidence
against its prejudicial effect . . . trial courts must be
mindful of the purpose for which the evidence is to
be admitted, namely, to permit the jury to consider a
defendant’s prior bad acts in the area of sexual abuse
or child molestation for the purpose of showing propen-
sity.’’ (Internal quotation marks omitted.) State v.
DeJesus, supra, 288 Conn. 473–74. ‘‘Although evidence
of child sex abuse is undoubtedly harmful to the defen-
dant, that is not the test of whether evidence is unduly
prejudicial. Rather, evidence is excluded as unduly prej-
udicial when it tends to have some adverse effect upon
a defendant beyond tending to prove the fact or issue
that justified its admission into evidence.’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Antonaras, supra, 137 Conn. App. 722–23. ‘‘The test for
determining whether evidence is unduly prejudicial is
not whether it is damaging to the defendant but whether
it will improperly arouse the emotions of the jury.’’
(Internal quotation marks omitted.) State v. Morales,
164 Conn. App. 143, 179, 136 A.3d 278, cert. denied, 321
Conn. 916, 136 A.3d 1275 (2016).
The defendant argues that the admission of the
uncharged misconduct evidence was unduly prejudicial
because it allowed the state to argue, and the jury to
conclude, that he had a propensity to sexually assault
young girls. This assertion does not support the defen-
dant’s contention that the evidence was unduly prejudi-
cial, as propensity is the precise purpose for which our
legislature and courts have allowed such evidence to
be admitted and considered. See State v. DeJesus,
supra, 288 Conn. 476. Moreover, the fact that the evi-
dence is harmful to the defendant does not make it
unduly prejudicial—uncharged misconduct evidence is
always harmful. Such evidence crosses the threshold
from harmful to unduly prejudicial only when it has
some adverse effect beyond tending to show the defen-
dant’s propensity to commit that type of misconduct.
The defendant offers no explanation regarding how the
uncharged misconduct evidence tended to show some-
thing other than his propensity to sexually assault young
girls and, as we have already noted, that is a proper
purpose for which it may be considered. Furthermore,
the defendant’s misconduct as to C was far less egre-
gious than that as to A. It is therefore unlikely that C’s
testimony improperly aroused the emotions of the jury.
We conclude that the court did not abuse its discretion
in admitting the uncharged misconduct evidence.
II
Next, the defendant claims that the trial court improp-
erly permitted Williams to testify as an expert on
delayed disclosure and common behaviors of child sex-
ual abuse victims because she (1) had already testified
as a constancy of accusation witness, and (2) was
unqualified7 to testify as an expert. We decline to review
the former assertion because it was not preserved at
trial and, with respect to the witness’ qualifications, we
are not persuaded that the court abused its discretion
in concluding that Williams was qualified to render
her opinions.
The following additional facts are relevant to this
claim. The defendant filed a motion in limine prior to
trial to prevent the state from eliciting testimony from
A regarding her disclosure of abuse to others unless the
state had good cause to believe that those individuals
would be available to testify. During the state’s direct
examination of A, A testified that she had disclosed the
abuse to Williams, J, and her father. On cross-examina-
tion, the defendant challenged A’s credibility and elic-
ited from her that she did not reveal the abuse to
Williams until 2014, that she never revealed the abuse
to her mother, and that she had never sought medical
treatment or therapy as a result of the abuse.
After A testified, the state called Williams. Williams
testified that she was employed as a social worker at
a high school. Regarding her background, Williams testi-
fied that she had received both a bachelor’s degree in
psychology and master’s degree in social work from
the University of Connecticut. Williams further testified
that she had received her first level of licensure three
months before the trial, was working toward her final
level, and hoped to become a licensed clinical social
worker (LCSW) by the end of the year. To become an
LCSW, students are required to complete three thou-
sand working hours, one hundred of which must be
supervised by a licensed clinician.
Williams testified that, in order to complete the
required clinical hours, she had volunteered as a direc-
tor for a church youth group for the past ten years. It
was through this volunteer work that Williams met A.
Williams then testified regarding A’s disclosure of the
defendant’s abuse. When the state asked Williams
whether she thought it was important to press A for
specific details, Williams replied, ‘‘I did not. Oftentimes
when dealing with kids—.’’ The defendant then
objected, citing as the basis of the objection that Wil-
liams was not ‘‘qualified to give an opinion at [that]
point.’’
The court excused the jury and asked the state what
line of questioning it intended to pursue. The state
responded that Williams had completed her constancy
of accusation testimony, but that it also wanted to elicit
testimony from Williams regarding her experience as
a social worker interacting with children who disclose
sexual abuse. Specifically, the state wanted to elicit
that, in Williams’ experience, children often delay in
disclosing abuse. The state argued that Williams was
permitted to testify about her observations and experi-
ence as long as such testimony was relevant.
The court then asked the state to voir dire Williams
and thereby lay a foundation for her testimony regard-
ing delayed disclosure and common characteristics of
sexual abuse victims. During voir dire, Williams testified
as to the following: (1) while working as the director
of the church youth program, eight teenagers had dis-
closed sexual abuse to her, (2) Williams had attended
two different trainings on how, as a mandated reporter,
she should properly handle disclosures of sexual abuse
by children, (3) as part of her training, Williams was
taught that she should not press children for details of
sexual abuse, (4) Williams also learned, through train-
ing, of various behaviors that children who are sexually
abused commonly exhibit, including delayed disclo-
sure, (5) the purpose of Williams’ training was to assist
her in preparing to work with sexual abuse victims in
the future, (6) during her work as a school social
worker, five children had disclosed to Williams that
they had been sexually abused, and (7) she had been
the person to whom the students first disclosed abuse.
Thereafter, the defendant also conducted a voir dire
of Williams.
The state then clarified once again that it only sought
to elicit from Williams (1) testimony as to how common
it is for children to delay disclosing abuse, and (2) the
reasons for that phenomenon. The defendant again
objected.
The court then ruled that Williams was qualified to
answer questions regarding delayed disclosure. The
court based its ruling on the fact that Williams had
received her master’s degree in social work and
acquired her first level of licensure, was close to
obtaining her LCSW license, had training and practical
experience interacting with school-age students who
disclose sexual abuse, and had worked with a total of
fourteen students who had done so. The court reminded
both the state and Williams that she could not testify
about why A may have delayed her disclosure or how
her conduct was consistent with someone who had
been sexually abused.
Thereafter, the jury returned and the court provided
a limiting instruction regarding constancy of accusation
testimony. The prosecutor then proceeded to question
Williams about her training as a mandated reporter and
the topic of delayed disclosure. Williams testified that,
through her work as a social worker and director of
the youth group, approximately thirteen or fourteen
children had disclosed to her that they had been sexu-
ally abused. Regarding delayed disclosure, Williams tes-
tified that children often wait to disclose abuse because
(1) they do not want to upset family members or friends
who would be affected by the news, (2) they fear what
will happen if their friends find out about the abuse,
and (3) children often feel as though they did something
to deserve the abuse and do not want that fear validated.
The court, during its final charge to the jury, subse-
quently gave an instruction regarding the proper pur-
pose for which the jury could consider constancy of
accusation and expert testimony. Specifically, the court
instructed the jury that the testimony of the constancy
of accusation witnesses ‘‘was . . . limited in its scope
to the fact and timing of [A’s] complaint, the place and
nature of the alleged sexual assault, and the identity of
the alleged perpetrator.’’ Regarding expert testimony,
the court instructed the jury that Williams had testified
as an expert and that such testimony was entitled ‘‘to
such weight as [the jury] find[s] the expert’s qualifica-
tions in her field entitle it to receive . . . .’’
A
The defendant first argues that the court improperly
allowed Williams to testify as an expert regarding
delayed disclosure because she had also testified as a
constancy of accusation witness. Specifically, the
defendant argues that Williams’ testimony improperly
exceeded the bounds of permissible constancy of accu-
sation evidence set forth in State v. Troupe, 237 Conn.
284, 677 A.2d 917 (1996). Because the defendant did
not preserve this claim at trial, we decline to review it.
‘‘In order to preserve an evidentiary ruling for review,
trial counsel must object properly. . . . Our rules of
practice make it clear that when an objection to evi-
dence is made, a succinct statement of the grounds
forming the basis for the objection must be made in
such form as counsel desires it to be preserved and
included in the record. . . . In objecting to evidence,
counsel must properly articulate the basis of the objec-
tion so as to apprise the trial court of the precise nature
of the objection and its real purpose, in order to form
an adequate basis for a reviewable ruling.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Bush, 249 Conn. 423, 427–28, 735 A.2d 778 (1999).
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to a trial by ambush.’’
(Citation omitted.) Id., 428. ‘‘Where, however, there is
a question as to whether the claim was preserved, as
long as it is clear from the record that the trial court
effectively was alerted to a claim of potential error
while there was still time for the court to act . . . the
claim will be considered preserved.’’ (Citation omitted;
internal quotation marks omitted.) State v. Francis D.,
75 Conn. App. 1, 8–9, 815 A.2d 191, cert. denied, 263
Conn. 909, 819 A.2d 842 (2003).
The issue of whether the defendant’s claim is properly
preserved in this case is almost identical to that pre-
sented in Francis D. See id., 8. In that case, the defen-
dant argued on appeal that because a social worker
who testified for the state at trial was ‘‘offered solely to
prove constancy of accusation, her testimony regarding
the theory of delayed disclosure was inadmissible.’’ Id.
There, this court similarly concluded that the defendant
had not preserved his claim for appellate review. Id.
In so concluding, the court found that ‘‘[n]one of the
defendant’s objections concerned whether the testi-
mony of the social worker exceeded the limits of
Troupe. Instead, the explicit ground asserted for the
defendant’s objections was that the social worker was
not qualified as an expert witness and, therefore, her
testimony regarding delayed disclosure violated his
constitutional right to a jury trial because it allegedly
usurped the jury’s function of assessing the credibility
of [the witness].’’ Id., 10. The court also noted that
‘‘[t]he defendant’s objections failed to provide enough
background to properly articulate the basis of the objec-
tion,’’ and that ‘‘[a]t no time during the colloquy did the
defendant raise Troupe or state that the witness was a
constancy of accusation witness who could testify only
within the parameters of Troupe.’’ Id.
In the present case, as in Francis D., the defendant
did not at any point state as a basis for his objection
that Williams’ testimony improperly exceeded the scope
of constancy of accusation evidence under Troupe or
its progeny. The defendant initially stated that the basis
for his objection to Williams testifying further was that
she was not qualified to give an opinion ‘‘at [that] point.’’
After the court ruled that Williams would be allowed
to testify regarding delayed disclosure, the defendant
subsequently reiterated his objection. In doing so, the
defendant stated three grounds as the basis for the
objection: (1) the state had not disclosed to the defen-
dant prior to trial that Williams would testify as an
expert, (2) the state was attempting to improperly bol-
ster A’s credibility, and (3) Williams did not qualify as
an expert in that field because she did not have the
necessary experience.
The defendant also argued that Williams’ testimony
was improper because, as a mandated reporter, any-
thing she asked A would have been in ‘‘preparation for
the prosecutor’s case.’’ The court then asked defense
counsel how Williams’ actions as a mandated reporter
rendered her ineligible to offer an opinion, to which
defense counsel responded, ‘‘[w]ell, going back to, basi-
cally, she’s not an expert witness, Your Honor, so she
cannot . . . render an opinion.’’ Finally, the defendant
made one final objection on the ground that Williams
might attempt to relate her testimony regarding the
general phenomenon of delayed disclosure back to A’s
disclosure. None of the defendant’s many stated bases
for his objection, however, is consistent with the claim
he now makes on appeal.
The court’s response to the defendant’s objections
further supports our view that the defendant’s claim is
unpreserved, as the record indicates that the court did
not understand the defendant to be objecting to Wil-
liams’ prospective expert testimony because it
exceeded the proper scope of the constancy of accusa-
tion doctrine. This is evidenced by the great lengths
the court took to address the defendant’s objection.
The court first addressed the defendant’s argument that
the state improperly failed to disclose Williams as an
expert, asking whether there was anything in the defen-
dant’s request for disclosure that would have required
the state to ‘‘specifically delineate who [its] experts
were going to be . . . .’’ Second, per the defendant’s
request, the court cautioned Williams that she was not
‘‘in any way’’ to relate her testimony regarding delayed
disclosure ‘‘to what [A] did or did not do,’’ and con-
firmed with defense counsel that its instruction was
satisfactory. Finally, the court noted that Williams’ qual-
ifications were ‘‘the core issue’’ with respect to the
defendant’s objection. Thus, it clearly explained why it
believed that Williams was qualified to testify as an
expert regarding delayed disclosure, citing her employ-
ment, experience, training, and education. At no point
did the court indicate that it understood the defendant
to be objecting to Williams’ testimony on the ground
that he now asserts on appeal. We therefore conclude
that the defendant’s claim is unpreserved and decline
to review it.
B
The defendant next argues that the trial court improp-
erly allowed Williams to testify as an expert because
she was unqualified. Specifically, the defendant argues
that Williams was unqualified because only fourteen
children had disclosed to her that they had been sexu-
ally abused, she had never been deemed an expert in
the field, and she had substantially less experience than
witnesses who had testified as experts in other cases
involving child victims of sexual abuse, citing State
v. Grenier, 257 Conn. 797, 808, 778 A.2d 159 (2001)
(testifying expert treated more than 900 victims of sex-
ual abuse), and State v. Spigarolo, 210 Conn. 359, 376,
556 A.2d 112 (expert evaluated and treated 100 to 150
cases of child sexual abuse), cert. denied, 493 U.S. 933,
110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). We disagree.
‘‘The trial court has wide discretion in ruling on the
qualification of expert witnesses and the admissibility
of their opinions. . . . The court’s decision is not to
be disturbed unless [its] discretion has been abused,
or the error is clear and involves a misconception of
the law.’’ (Internal quotation marks omitted.) State v.
Reid, 254 Conn. 540, 550, 757 A.2d 482 (2000). ‘‘To the
extent the trial court makes factual findings to support
its decision, we will accept those findings unless they
are clearly improper. . . . If we determine that a court
acted improperly with respect to the admissibility of
expert testimony, we will reverse the trial court’s judg-
ment and grant a new trial only if the impropriety was
harmful to the appealing party.’’ (Internal quotation
marks omitted.) State v. Edwards, 325 Conn. 97, 123,
156 A.3d 506 (2017).
‘‘Expert testimony should be admitted when: (1) the
witness has a special skill or knowledge directly appli-
cable to a matter in issue, (2) that skill or knowledge
is not common to the average person, and (3) the testi-
mony would be helpful to the court or jury in consider-
ing the issues. . . . [T]o render an expert opinion the
witness must be qualified to do so and there must be a
factual basis for the opinion.’’ (Internal quotation marks
omitted.) Id., 123–24. In finding that a witness may
properly be qualified as an expert, ‘‘[s]ome facts must
be shown as a foundation for an expert’s opinion, but
there is no rule of law declaring the precise facts which
must be proved before such an opinion may be received
in evidence.’’ (Internal quotation marks omitted.) Mara-
ndino v. Prometheus Pharmacy, 294 Conn. 564, 593, 986
A.2d 1023 (2010). An expert witness’ skill or knowledge
‘‘may emanate from a myriad of sources, such as teach-
ing, scholarly writings, study or practical experience.’’
Davis v. Margolis, 215 Conn. 408, 417, 576 A.2d 489
(1990).
Moreover, ‘‘[i]t is not essential that an expert witness
possess any particular credential, such as a license, in
order to be qualified to testify, so long as his [or her]
education or experience indicate that he [or she] has
knowledge on a relevant subject significantly greater
than that of persons lacking such education or experi-
ence.’’ (Internal quotation marks omitted.) Beverly Hills
Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin,
247 Conn. 48, 62, 717 A.2d 724 (1998); see also E & M
Custom Homes, LLC v. Negron, 140 Conn. App. 92,
110–11, 59 A.3d 262 (2013) (witness who lacked home
improvement contractor’s license, major contractor’s
license, and certificate of registration as new home
construction contractor, but had completed approxi-
mately six new home constructions, was properly quali-
fied as expert witness and allowed to testify about
repairs needed to property at issue), appeal dismissed,
314 Conn. 519, 102 A.3d 707 (2014).
In the present case, the court determined that Wil-
liams was qualified to render an expert opinion ‘‘by
reason of both her volunteer work and her paid employ-
ment, [and her] experience in dealing with . . . school-
age students in disclosing sexual abuse . . . .’’ Wil-
liams’ credentials support the court’s conclusion. At the
time of trial, Williams had both practical experience
and the relevant educational background regarding the
issue of delayed disclosure. She had studied character-
istics of child victims of sexual abuse in obtaining her
bachelor’s and master’s degrees. Moreover, Williams
had received training through the department and other
programs on how to handle, as a mandated reporter, a
student’s first disclosure of abuse. Furthermore, while
employed as a school social worker and director of
the youth group, Williams was told by approximately
thirteen or fourteen students that they had been sexu-
ally abused. We therefore conclude that the court did
not abuse its discretion in finding that Williams was
qualified to testify as an expert on the topic of
delayed disclosure.
III
Finally, the defendant claims that his conviction
should be reversed because the prosecutor committed
various improprieties at trial that deprived him of his
due process right to a fair trial. Specifically, the defen-
dant argues that the prosecutor asked questions during
cross-examination and made statements during closing
argument that suggested that the defendant was
required to provide an explanation as to why A and C
would falsely accuse him of sexually abusing them.
The defendant believes that the alleged improprieties
diluted, distorted, and shifted the state’s burden of
proof, and were ‘‘tantamount to a direct statement that
the defendant had the burden of proving or disproving
the state’s case.’’ We are not persuaded that the prosecu-
tor’s conduct deprived the defendant of a fair trial.
The following additional facts and procedural history
are relevant to the resolution of this claim. At trial, the
defendant testified in his own defense. Specifically, the
defendant testified that he never sexually abused A,
either in concert with J or otherwise.
The defendant also denied that he ever sexually
abused C. The defendant instead offered that he, J, and
C had fallen asleep watching a movie on a couch in
the defendant’s living room, and that he overheard C
complain to J that the defendant had rolled over and
put his hand on her leg in his sleep.
The defendant further testified that, when he was
unemployed, he began selling marijuana in order to
support his family. On cross-examination, the defendant
stated that J used to make marijuana deliveries for him
on occasion, and that any incriminating statements in
the letters he sent J from prison referred to his drug
dealing operation. The following exchange then
occurred between the prosecutor and the defendant:
‘‘Q. Did you ever offer this as an explanation for the
letters we have—
‘‘A. I’ve never—
‘‘Q. —prior to today?
‘‘A. I’ve never been put in a position to do so; so, no.
‘‘Q. And yet, how exactly does this explain why [A]
and [C] have made allegations of sexual abuse
against you?
‘‘A. It doesn’t explain. I never stated that it did explain
that. I stated what I was asked what those letters
referred to.
‘‘Q. Okay. So, you have no explanation for why [A]
and [C] would make allegations of sexual abuse
against you.
‘‘A. I didn’t say that, either. You asked if I was using
those letters to explain that, and I said no.
‘‘Q. Okay, so you’ve taken—
‘‘A. We’re going in circles.
‘‘Q. You’ve taken the [witness] stand this afternoon.
‘‘A. Yes.
‘‘Q. You’re charged with very serious crimes.
‘‘A. Yes.
‘‘Q. And you have offered no explanation in your
testimony as to why these girls would come forward
and make allegations against you.
‘‘A. As of yet, no; I have not.
‘‘Q. And when do you plan on doing that, sir?
‘‘A. I’m not the one asking questions, ma’am. You are,
and he is.’’ (Emphasis added.)
Defense counsel did not object to this line of ques-
tioning. The prosecutor then referenced specific parts
of the defendant’s letters to J and asked him to explain
how they pertained to his supposed drug dealing. The
defendant maintained that his letters did not constitute
admissions of sexual assault and were consistent with
his admission that he sold marijuana.
Thereafter, during the state’s closing argument, the
prosecutor again addressed the defendant’s letters to
J, stating: ‘‘If that isn’t enough to prove beyond a reason-
able doubt the charges against the defendant, I also ask
you to consider the defendant’s testimony.
‘‘Ask . . . yourselves, how credible did he come
across? How credible was he in light of his letters? How
credible was he in light of the fact that his testimony
was contrary to practically every other witness that tes-
tified?
‘‘Despite the length to which he liked to talk about
irrelevant information, isn’t it interesting that he
couldn’t offer a single explanation as to why [A] would
make up these allegations against him?
‘‘He couldn’t offer a cogent, reasonable explanation
for why [J] would voluntarily tell the police that she
was involved in sexual misconduct with him.
‘‘He couldn’t explain why [C] would make accusa-
tions against him. He couldn’t explain the letters in
any meaningful, credible way.
‘‘Given all that he did have to say over the course of
two hours, he didn’t offer a shred of testimony that
made sense. He couldn’t explain how not once did he
accuse his wife of lying in his letters.
‘‘He accused her of minimizing her involvement at
times, but never once did he tell her she was lying. On
the contrary, he yells at her in one breath to stop talking
to the police and [the department], and in the next, he
tells her that he loves her and hopes that they can live
happily ever after.
‘‘And yet, he wants us to believe that all of these
letters are really about some drug dealing operation
that no one seems to know anything about. Not a shred
of evidence to suggest he’s being investigated for selling
drugs, nor is he charged with that offense.
‘‘It’s just a convenient, if not very plausible, explana-
tion for what he was hiding from the police and why
he kept telling his wife not to talk to him. An explana-
tion, sure, but not a very good one.’’ (Emphasis added.)
Again, defense counsel did not object to the prosecu-
tor’s comments. Furthermore, the prosecutor stated in
her closing argument that ‘‘[t]he judge will instruct you
that . . . you must determine each element of each of
the crimes; and . . . in order to find the defendant
guilty of a particular charge or count, you must find . . .
each of the elements to be proven beyond a reasonable
doubt.’’ The prosecutor then addressed the crimes of
sexual assault in the first degree and risk of injury to
a child and explained what the state must have proven
with respect to each element of those crimes in order
for the jury to find the defendant guilty.
In addition, the court instructed the jury regarding
the presumption of innocence and stated multiple times
that the state bore the burden of proving the elements
of each crime beyond a reasonable doubt. The court
also provided the jury with extensive instructions
regarding the definition of proof beyond a reasonable
doubt.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . We first
examine whether the 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.’’ (Citations omitted; internal quotation marks
omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d
978 (2007).
‘‘[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 [it] 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 prosecutor’s [actions]
in the context of the entire trial.’’ (Internal quotation
marks omitted.) Id.
Although the defendant did not object at trial to either
the prosecutor’s questions on cross-examination or her
comments during closing argument, it is unnecessary
for him to seek review under State v. Golding, 213 Conn.
233, 567 A.2d 823 (1989).8 See State v. Stevenson, 269
Conn. 563, 572–75, 849 A.2d 626 (2004). ‘‘The reason
for this is that . . . appellate review of claims of prose-
cutorial [impropriety involves] a determination of
whether the defendant was deprived of his right to
a fair trial, and this determination must involve the
application of the factors set out by [our Supreme
Court] in State v. Williams, 204 Conn. 523, 540, 529
A.2d 653 (1987).’’ State v. Stevenson, supra, 573. ‘‘The
consideration of the fairness of the entire trial through
the Williams factors duplicates, and, thus makes super-
fluous, a separate application of the Golding test.’’
(Internal quotation marks omitted.) State v. Ciullo, 314
Conn. 28, 35, 100 A.3d 779 (2014).
Even if we assume without deciding,9 however, that
the prosecutor’s questions on cross-examination and
comments during closing argument constituted impro-
priety,10 we are not persuaded that the defendant was
deprived of his due process right to a fair trial. ‘‘When a
defendant demonstrates improper questions or remarks
by the prosecutor during the course of trial, the defen-
dant bears the burden of showing that, considered in
light of the whole trial, the improprieties were so egre-
gious that they amounted to a denial of due process.
. . . The question of whether the defendant has been
prejudiced by prosecutorial [impropriety] . . .
depends on whether there is a reasonable likelihood
that the jury’s verdict would have been different absent
the sum total of the improprieties. . . . This assess-
ment is made through application of the factors set
forth in State v. Williams, supra, 204 Conn. 540 . . . .
These factors include: the extent to which the [impro-
priety] was invited by defense conduct or argument
. . . the severity of the [impropriety] . . . the fre-
quency of the [impropriety] . . . the centrality of the
[impropriety] to the critical issues in the case . . . the
strength of the curative measures adopted . . . and the
strength of the state’s case.’’ (Citations omitted; internal
quotation marks omitted.) State v. Albino, 312 Conn.
763, 790–91, 97 A.3d 478 (2014). Applying these factors
to the questions and statements at issue in the present
case, we conclude that the defendant was not denied
due process of law.
At the outset, we acknowledge that two of the Wil-
liams factors tend to support the defendant’s claim.
First, the potential impropriety was not invited by the
defendant. The state concedes as much. Second, the
potential impropriety concerned a critical issue in the
case—whether A and C had a motive to lie about the
defendant’s sexual abuse of them. When considered in
context with the remaining four factors, however, it is
clear that the potential impropriety did not deprive the
defendant of a fair trial.
Regarding the severity of the potential impropriety,
it is significant that defense counsel did not object to
either the prosecutor’s line of questioning on cross-
examination or her comments during closing argument.
Our appellate courts have often given ‘‘considerable
weight to the fact that defense counsel did not object
to . . . [the alleged] improprieties’’ and considered it
‘‘a strong indicator that counsel did not perceive them as
seriously jeopardizing the defendant’s fair trial rights.’’
State v. Jones, 320 Conn. 22, 38, 128 A.3d 431 (2015).
Indeed, ‘‘counsel’s failure to object at trial, while not
by itself fatal to a defendant’s claim, frequently will
indicate on appellate review that the challenged com-
ments do not rise to the magnitude of constitutional
error . . . [necessary] . . . [to] clearly depriv[e] . . .
the defendant of a fair trial . . . .’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Thompson, 266 Conn. 440, 484, 832 A.2d 626
(2003). Thus, the defendant’s failure to object in both
instances suggests that any impropriety was not severe.
Furthermore, 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. Angel T.,
292 Conn. 262, 289, 973 A.2d 1207 (2009). The defendant
argues that the potential impropriety was ‘‘somewhat
frequent’’ and not ‘‘just one brief isolated comment.’’
The defendant takes issue, however, only with three
questions contained in thirty-five transcribed pages of
cross-examination, and a few isolated statements con-
tained in the prosecutor’s entire closing argument.
‘‘Improper statements that are minor and isolated will
generally not taint the overall fairness of an entire trial.’’
(Internal quotation marks omitted.) State v. Felix R.,
319 Conn. 1, 17, 124 A.3d 871 (2015). Thus, while the
potential impropriety does not encompass merely one
question or statement, it certainly cannot be character-
ized as ‘‘frequent’’ when considered in the context of
a lengthy cross-examination and closing argument. See
State v. Payne, 303 Conn. 538, 567, 34 A.3d 370 (2012)
(three improper statements made by prosecutor during
lengthy closing argument were not frequent); see also
State v. Salamon, 287 Conn. 509, 552–55, 567, 949 A.2d
1092 (2008) (prosecutor’s improper statements during
closing and rebuttal arguments that encouraged jury to
speculate that kidnapping case also involved uncharged
attempted sexual assault were not particularly frequent
when viewed in context of entire trial, which spanned
several days).
With respect to the strength of the curative measures
adapted, although it is true that ‘‘a general instruction
does not have the same curative effect as a charge
directed at a specific impropriety’’; State v. Warholic,
278 Conn. 354, 401, 897 A.2d 569 (2006); ‘‘the defendant,
by failing to bring [the improper comment] to the atten-
tion of the trial court, bears much of the responsibility
for the fact that [this] claimed impropriet[y] went
uncured.’’ (Internal quotation marks omitted.) Id., 402.
Furthermore, even absent a specific curative instruc-
tion, the court’s general written and oral instructions,
in which it repeatedly stated that the prosecution had
the burden of proving the elements of each crime
charged in the information beyond a reasonable doubt
and clearly explained the concept of the presumption
of innocence, sufficiently cured any potential confusion
by the jury. See State v. Albino, supra, 312 Conn. 792
(although defendant’s ‘‘failure to object or to ask for
such measures to be taken deprived the court of an
opportunity to address the improprieties with any speci-
ficity,’’ court’s general instructions nonetheless likely
mitigated effect of improprieties).
We now turn to the last Williams factor, which
assesses the overall strength of the state’s case. Here,
the state’s case was quite strong. To begin, A’s testimony
was directly corroborated in part by J, who was an
eyewitness and, at times, a participant in the defen-
dant’s sexual abuse of A. J corroborated A’s testimony
that she had performed fellatio on the defendant in
front of A and asked A to join in. J also corroborated
A’s testimony that the defendant had brought A to his
bedroom on at least one occasion, and, on that occa-
sion, J fondled A’s breasts at the request of the defen-
dant. A’s allegations were further corroborated by C’s
testimony concerning uncharged misconduct of the
defendant. The incident C described at trial—during
which the defendant repeatedly tried to put his hands
down her pants while she was asleep on the couch in
his living room—was very similar to A’s testimony that
the defendant would often touch her when she was
asleep in her bed or on the couch in the living room.
Moreover, C, like A, testified that she believed the defen-
dant had secretly taken photographs or videos of her.
C’s testimony regarding the defendant’s uncharged mis-
conduct was properly introduced as propensity evi-
dence. Therefore, the jury was free to conclude that
because the defendant had sexually abused C, it was
more likely that he had committed the sexual miscon-
duct for which he was being tried. See Conn. Code
Evid. § 4-5 (b).
Finally, A’s allegations were corroborated by the
defendant’s own written statements, contained in his
letters to J. Specifically, the defendant wrote: (1) ‘‘they
want me to confirm that you gave me a BJ in front of
your sister cause you said you did I say nothing if I did
you would be in jail to[o],’’ (2) ‘‘not only did [J] know
what was going on but [she] helped and supported in
it,’’ (3) on ‘‘many nights [J] . . . arranged so the older
kids weren’t home,’’ and (4) that ‘‘had [J] said nothing
they couldn’t have made the charges stick but [she]
sealed that deal.’’ Thus, the defendant’s own statements
supported A’s allegations that he had sexually abused
her11 and even referenced a specific instance of abuse
testified to by J. Therefore, considering that A’s testi-
mony was corroborated extensively, we conclude that
the state’s case was strong despite the lack of physi-
cal evidence.12
In sum, we conclude that (1) the potential impropri-
ety was neither severe nor frequent, (2) the court’s
instructions were sufficient to correct any confusion
the jury may have had regarding the state’s burden of
proof, and (3) the state’s case was strong overall. We
therefore conclude that the questions and statements
made by the prosecutor and challenged by the defen-
dant on appeal did not deprive him of his due process
right to a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victims or others through whom the victims’ identities may
be ascertained. See General Statutes § 54-86e.
1
For ease of discussion, we address the defendant’s claims in a different
order than that in which they appear in his brief.
2
The defendant also had a son from a previous marriage, who occasionally
spent the weekend at the defendant’s apartment.
3
C, the victim of that abuse, testified for the state in the present case.
4
J was also arrested on charges stemming from the abuse of her sister
after partially admitting to her own involvement. She later pleaded guilty
and was convicted of conspiracy to commit sexual assault in the first degree,
conspiracy to commit risk of injury to a child, risk of injury to a child, and
sexual assault in the fourth degree.
5
The defendant also argues that the court’s limiting instruction to the
jury regarding uncharged misconduct evidence was improper because it
was given immediately after C’s testimony, rather than prior to it. Further-
more, the defendant argues that the court’s instructions in its final charge
‘‘would have led the jury to believe that C’s claims had been proven, resulting
in more prejudice to the defendant.’’ Because the defendant did not object
at trial to the court’s instruction regarding uncharged misconduct evidence
either immediately after C’s testimony or during the court’s final charge,
and does not seek review under Golding; see State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015); or the plain error doctrine; Practice Book
§ 60-5; his claim is unpreserved. We therefore decline to review it.
6
The defendant argues that the present case is similar to State v. Gupta,
297 Conn. 211, 998 A.2d 1085 (2010). In that case, our Supreme Court
concluded that the trial court abused its discretion in consolidating three
cases against the defendant for trial because the evidence in the case involv-
ing one of the complainants was not cross admissible in the other two cases
under Conn. Code Evid. § 4-5 (b) and DeJesus. Id., 226.
Specifically, the court found that the sexual misconduct alleged by one
of the complainants was not sufficiently similar to the misconduct alleged
by the complaining witnesses in the other two cases, because it was more
severe. Id. All three alleged that the defendant, a physician, had molested
them during their respective medical examinations with him. Id., 226–27.
The first complainant alleged that the defendant had kissed her on her
cheeks, remarked that her breasts were ‘‘soft and beautiful,’’ pinched her
nipples, tapped her pelvic bone and told her that she was ‘‘so hot,’’ firmly
massaged her breasts with his hands, asked if he could kiss her breasts,
and proceeded to put his mouth on her breasts. (Internal quotation marks
omitted.) Id. The other two complainants, however, alleged only that the
defendant had improperly touched their breasts. Id., 226.
Gupta, however, is clearly distinguishable from the present case. In Gupta,
the defendant’s conduct toward two of the complainants did not escalate
beyond inappropriate touching. The first and only time he molested the first
complainant, however, the abuse was far more severe and included tapping
her pelvic bone, putting his mouth on her breasts, and biting her in a
sexual manner. Thus, the defendant’s initial advances toward the other
two complainants were dissimilar to his initial advance toward the first
complainant. In the present case, unlike in Gupta, the defendant’s initial
advances toward C and A were nearly identical. Gupta therefore does not
support the defendant’s claim.
7
The defendant argues in his reply brief that the state failed to give
adequate notice that Williams would testify as an expert at trial. At oral
argument, however, the defendant conceded that he never raised this claim
in his principal brief on appeal. Thus, we decline to review the defendant’s
claim of inadequate notice. See State v. Garvin, 242 Conn. 296, 312, 699
A.2d 921 (1997) (‘‘[i]t is a well established principle that arguments can not
be raised for the first time in a reply brief’’ [internal quotation marks omit-
ted]). The defendant also claims that the court improperly permitted Dawn
Jackle, a department social worker who was assigned to the case, to testify
as an expert because she was unqualified. Because the defendant did not
object to Jackle’s testimony at trial, his claim is unpreserved. Furthermore,
the defendant’s postverdict motion for a new trial, in which he argued for
the first time that Jackle did not properly qualify as an expert and that her
testimony was more prejudicial than probative, was likewise insufficient to
preserve his claim for review. See State v. Paris, 63 Conn. App. 284, 294–95,
775 A.2d 994 (In refusing to review an evidentiary claim that was raised for
the first time in a postverdict motion for a new trial, this stated, ‘‘[w]e are
not persuaded that evidentiary claims, not made at trial, can be preserved
for appeal by raising them in a motion for a new trial after a guilty verdict.
The problems inherent in allowing counsel to wait until after an adverse
verdict to raise such objections to evidence are too obvious to warrant
discussion.’’), cert. denied, 257 Conn. 909, 782 A.2d 135 (2001). We therefore
decline to review the defendant’s claim with respect to Jackle’s qualifi-
cations.
8
See State v. Golding, supra, 213 Conn. 239–40 (modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 [2015]).
9
Although ordinarily we would first analyze whether the prosecutor’s
actions were improper, we have on occasion considered the Williams factors
after assuming error if we are convinced that, despite the potential impropri-
ety, it was not so egregious as to violate the defendant’s due process rights.
See State v. Ciullo, supra, 314 Conn. 57; see also State v. Fernandez, 169
Conn. App. 855, 869, 153 A.3d 53 (2016).
10
Regarding the first prong of the analysis, i.e., whether an impropriety
occurred, we find that the prosecutor’s questions on cross-examination and
comments during closing argument straddle the line between proper and
improper. Although the state was entitled to argue that there did not appear
to be any reason or motive for A or C to concoct a story that the defendant
had sexually assaulted them, the form of the prosecutor’s questions and the
manner in which she presented a portion of her closing argument risked
confusing the jury as to the appropriate burden of proof because they
suggested that the state was entitled to a guilty verdict in the absence of
the defendant coming forward with evidence, or at least a theory, as to the
witnesses’ motives to fabricate their claims.
11
We do not find persuasive the defendant’s explanation that his letters
referred to a drug dealing operation, as his testimony was not supported
by any other evidence at trial.
12
The defendant argues that ‘‘[t]he case against the defendant cannot be
considered strong . . . [because] no physical evidence corroborated her
claims.’’ Because the last instance of abuse occurred five years before A’s
disclosure, however, it was highly improbable that any physical evidence
would still exist at that time and, in fact, none did. Furthermore, A’s allega-
tions were corroborated extensively in other ways. Therefore, the defendant
is incorrect that the lack of physical evidence rendered the state’s case
weak. See State v. Felix R., supra, 319 Conn. 18–19 (state’s case was not
weak due to lack of conclusive physical evidence of sexual assault consider-
ing other corroborating evidence introduced at trial, such as that abuser
bought victim pregnancy test and morning after pills, as well as testimony
of social workers and police officers who investigated case).