State v. Tahir L.

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State v. Tahir L.

STATE OF CONNECTICUT v. TAHIR L.*
(AC 46111)
Cradle, Clark and Seeley, Js.

Syllabus

Convicted, following a jury trial, under two separate dockets, of five counts
of sexual assault in the fourth degree and four counts of risk of injury
to a child, the defendant appealed to this court. Held:
1. The defendant could not prevail on his unpreserved claim that his right
to due process under the federal constitution was violated by the trial
court’s preliminary instructions to the jury: by providing instructions
that contained the language of the statutes that the defendant was
charged with violating, the court properly informed the jury of the nature
of the charges in accordance with the model jury instructions pertaining
to preliminary instructions; moreover, the court included instructions
regarding the state’s burden to prove each element of the charges beyond
a reasonable doubt, an instruction on reasonable doubt that was consis-
tent with the model jury instruction for preliminary instructions, an
explanation of the difference between preliminary instructions and final
instructions and an instruction to the jurors that their verdict must be
based exclusively on evidence presented at trial and on the principles
of law in the court’s final instructions; furthermore, because the court’s
final instructions covered all applicable legal principles, the defendant
failed to demonstrate that the claimed errors regarding the trial court’s
preliminary instructions merited the extraordinary relief afforded under
the plain error doctrine.
2. The defendant could not prevail on his claims that the trial court violated
his constitutional right to due process in its final instructions to the jury:
a. The defendant’s claim that the court erred in failing to include in its final
instructions a limiting instruction regarding the use of nonpropensity
evidence for propensity purposes was unavailing: the defendant con-
sented to the joinder of the two underlying cases, and the court properly

* 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 use the defendant’s full name or to identify the victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to
identify any person protected or sought to be protected under a protection
order, protective order, or a restraining order that was issued or applied
for, or others through whom that person’s identity may be ascertained.
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State v. Tahir L.
advised the jury in its final instructions that the jury must deliberate on
each count separately and must make an independent determination as
to whether the state satisfied its burden of proof as to each element of
the charged offenses; moreover, although the court did not specifically
instruct the jury that it could not use the evidence pertaining to one
information as propensity evidence when considering the offenses
charged in the other information, the defendant waived this claim and
was not entitled to review under State v. Golding (213 Conn. 233) because
he did not request such an instruction from the court and defense counsel
stated that he had no objection to the court’s proposed instructions and
did not request any additions or modifications to this section of the
instructions; furthermore, the defendant failed to demonstrate that the
court committed plain error in the absence of his request for such an
instruction.
b. The defendant could not prevail on his claim that the court erred in
instructing the jury that it could use the victims’ affidavits as substantive
evidence rather than solely for impeachment purposes: defense counsel
explicitly offered the affidavits as full exhibits and did not indicate
at trial that the affidavits were introduced only for a limited purpose;
moreover, defense counsel raised no objection during the charge confer-
ence regarding the language permitting the jury to consider the affidavits
as substantive evidence, nor did defense counsel take exception to the
language after the court delivered its final instructions, and, accordingly,
the defendant waived this claim and therefore was not entitled to Golding
review; furthermore, it is well established that an exhibit offered and
received as a full exhibit is in the case for all purposes and, accordingly,
the court did not commit plain error by instructing the jury in the manner
that it did.
c. The defendant could not prevail on his claim that the trial court committed
plain error in instructing the jury on the elements of fourth degree
sexual assault: although the trial court erroneously omitted the word
‘‘intentionally’’ from its instruction on the elements of fourth degree
sexual assault as to four of the five counts, the court’s final instructions,
when read as a whole, did not dilute the state’s burden of proving beyond
a reasonable doubt that the defendant intentionally subjected the victims
to sexual contact with respect to each of the five counts of fourth degree
sexual assault and, accordingly, the defendant failed to demonstrate
that the court’s erroneous instruction resulted in manifest injustice.
3. The defendant could not prevail on his unpreserved claims that the trial
court erred in admitting certain evidence at trial:
a. This court could not conclude that the trial court erred in admitting
photographs of the victims at their ages when the defendant’s abuse
began: even assuming, arguendo, that the photographs would have been
inadmissible if objected to at trial, the defendant cited no authority
for the proposition that the trial court had an affirmative obligation to
preclude the admission of certain evidence in the absence of an objection;
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State v. Tahir L.
moreover, it is well established that when opposing counsel does not
object to evidence, it is inappropriate for the trial court to assume the
role of advocate and decide that the evidence should be stricken; further-
more, the defendant’s unpreserved evidentiary claim did not present a
truly extraordinary situation in which the alleged error was so obvious
that it would affect the fairness and integrity of and public confidence
in the judicial proceedings and this court therefore declined to afford
the defendant relief under the plain error doctrine.
b. This court declined to review the defendant’s unpreserved claim that
the trial court erred in admitting a photograph of the defendant’s gun
safe because it was not relevant and was highly prejudicial; because
defense counsel objected to the photograph of the gun safe only on the
basis of lack of a proper foundation, the defendant could not now chal-
lenge its admission on other grounds.
4. The defendant could not prevail on his claims that various statements
by the prosecutor were improper: defense counsel did not take exception
at trial to any of the prosecutor’s uses of the term ‘‘sexual assault,’’ nor
did the trial court ever instruct the prosecutor to refrain from using the
term, and, given the circumstances of this case, the relatively infrequent
use of the term, and the context in which the term was used, the
prosecutor’s six uses of the term ‘‘sexual assault’’ when questioning
the witnesses did not constitute prosecutorial impropriety; moreover,
although the defendant claimed that the prosecutor improperly sug-
gested that the defendant’s abuse caused one of the victim’s breast
cancer, the prosecutor never claimed a causal relationship between the
defendant’s abuse and the victim’s breast cancer, and the jury could
not have reasonably interpreted the prosecutor’s remarks as suggestive
of such a connection.
Argued May 21—officially released August 27, 2024

Procedural History

Substitute information, in the first case, charging the
defendant with four counts of the crime of sexual
assault in the fourth degree and three counts of the
crime of risk of injury to a child, brought to the Superior
Court in the judicial district of Litchfield, geographical
area number eighteen, and substitute information, in
the second case, charging the defendant with one count
each of the crimes of sexual assault in the fourth degree
and risk of injury to a child, brought to the Superior
Court in the judicial district of Danbury, geographical
area number three; thereafter, the court, Pelosi, J.,
granted the state’s motion for joinder and the cases
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State v. Tahir L.

were tried to the jury before Pelosi, J.; verdicts and
judgments of guilty, from which the defendant appealed
to this court. Affirmed.
Allison M. Near, with whom, on the brief, was Emily
C. Kaas-Mansfield, for the appellant (defendant).
Laurie N. Feldman, assistant state’s attorney, with
whom, on the brief, were David R. Shannon, state’s
attorney, and Terri L. Sonneman, senior assistant
state’s attorney, for the appellee (state).
Opinion

CRADLE, J. The defendant, Tahir L., appeals from
the judgments of conviction, rendered following a jury
trial, of one count of sexual assault in the fourth degree
in violation of General Statutes (Rev. to 2003) § 53a-
73a (a) (1), four counts of sexual assault in the fourth
degree in violation of General Statutes (Rev. to 2009)
§ 53a-73a (a) (1), and four counts of risk of injury to a
child in violation of General Statutes § 53-21 (a) (2).1
On appeal, the defendant claims that (1) his right to
due process was violated by the trial court’s preliminary
instructions to the jury, (2) his right to due process was
violated by the court’s final instructions to the jury, (3)
the court erred in admitting certain evidence, and (4)
the state committed prosecutorial impropriety. We
affirm the judgments of the trial court.
The jury reasonably could have found the following
facts. In 2003, the defendant was living in a house with
several brothers, cousins, and other extended family
members, including A, the ten year old daughter of
one of the defendant’s cousins. Around that time, the
1
Although § 53-21 has been amended since the events underlying this
appeal; see Public Acts 2007, No. 07-143, § 4; Public Acts 2013, No. 13-297,
§ 1; Public Acts 2015, No. 15-205, § 11; those amendments have no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of the statute.
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State v. Tahir L.

defendant began asking A to accompany him to a bed-
room to help him study for an automotive licensing
exam. Inside the bedroom, the defendant would touch
A’s thighs and breasts and eventually progressed to
rubbing his erect penis against her body. This abuse
continued until 2005, when the defendant got engaged
and moved into a new home.
In 2009, B, the twelve year old daughter of another
cousin, visited the defendant’s house, and the defendant
brought B to his basement to help him write estimates
for his masonry company. In the basement, the defen-
dant ‘‘dry humped’’ B with an erect penis. On two occa-
sions, the defendant put his hands inside B’s pants and
caressed her buttocks and again ‘‘humped’’ her with an
erect penis. The abuse of B lasted until 2010, at which
point she began avoiding visits to the defendant’s house,
and, if she did go to the defendant’s house, she would
sit next to her mother or a female relative.
In 2012, L, the ten year old daughter of another of
the defendant’s cousins, was staying overnight at the
defendant’s house. That night, the defendant placed L
on his lap and rubbed her vaginal area over her pants
while ‘‘grinding’’ his erect penis against L’s buttocks.
The following night, the defendant laid beside L on a
mattress topper and began touching her stomach and
buttocks. The defendant then removed his clothes and
had L lay on top of him while he rubbed his erect penis
against the outside of L’s clothed vagina.
Around the same time in 2012, the defendant began
inappropriately touching E, the twelve year old daugh-
ter of another cousin. E was also related to the defen-
dant through her maternal aunt, who was married to the
defendant at the time. E would come to the defendant’s
house to visit her aunt and her cousins, and on several
occasions when E stayed the night, the defendant
touched her breasts and vaginal area, both over and
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under E’s clothes. During one sleepover, the defendant
placed E’s hand under his boxer shorts and on his erect
penis. On occasions when the defendant picked E up
from school, he made her sit in the passenger seat of
the car and rubbed her thighs and breasts as they drove
to the defendant’s house. The last instance of abuse
occurred in approximately 2013, when E was a high
school freshman. While E was visiting the defendant’s
house with her mother, the defendant called E upstairs
to help him fix a television. E went upstairs and found
the defendant lying in bed. When she refused to get in
bed with him, the defendant touched her breasts. E left
the room and texted her cousin, B, that there was an
‘‘emergency.’’
The following day, E and B met at a stop sign near
E’s house, where E disclosed the abuse to B, who then
acknowledged that the defendant had abused her as
well. At some point, E and B had each discussed the
abuse with A as well. Approximately five years later,
in July, 2018, E disclosed the defendant’s abuse to her
uncle, who was also B’s father. Around that time, E
and B met with L at a Mexican restaurant, where L
acknowledged that she, too, had been abused by the
defendant. After these disclosures, A’s father sought
counsel and hired an attorney. By October, 2018, the
defendant’s then wife had become aware of the allega-
tions, and, in January, 2019, she filed for divorce from
the defendant.
In March, 2019, each of the victims completed an
affidavit at the attorney’s office. The affidavits were
then forwarded to the police who subsequently met
with the victims, and, following an investigation, the
defendant was arrested.
The defendant thereafter was charged with one count
of sexual assault in the fourth degree in violation of
General Statutes (Rev. to 2003) § 53a-73a (a) (1), four
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State v. Tahir L.

counts of sexual assault in the fourth degree in violation
of General Statutes (Rev. to 2009) § 53a-73a (a) (1) and
four counts of risk of injury to a child in violation of
§ 53-21 (a) (2).2 Following trial, the jury found him guilty
on all counts, and the trial court, Pelosi, J., imposed a
total effective sentence of thirty years of incarceration,
execution suspended after fifteen years, and twenty-
five years of probation. This appeal followed. Additional
facts and procedural history will be set forth as neces-
sary.
I
The defendant first claims that his right to due pro-
cess under the federal constitution was violated
because the trial court’s preliminary instructions to the
jury were ‘‘overly detailed as to the elements of each
charge’’ such that they were ‘‘not tailored to the issues
in the case,’’ and the preliminary instructions did not
define the term ‘‘reasonable doubt.’’ We disagree.
The following additional procedural history is rele-
vant to our consideration of the defendant’s claim. Prior
2
The defendant was charged in a separate information as to the abuse
of A, which occurred in a different town than the abuse of the other three
victims. Pursuant to Practice Book § 41-19 and General Statutes § 54-57, the
state filed a motion for joinder. The defendant consented to the motion,
and the trial court joined the two cases.
As to the abuse of A, the defendant was charged with sexual assault in
the fourth degree in violation of General Statutes (Rev. to 2003) § 53a-73a
(a) (1) (A) for sexual contact with a victim ‘‘under fifteen years of age.’’ As
to each of B, L, and E, the defendant was charged with sexual assault in
the fourth degree for sexual contact with a victim ‘‘under thirteen years of
age’’ when the actor is more than two years older than the victim under
General Statutes (Rev. to 2009) § 53a-73a (a) (1) (A). Additionally, because
the abuse of E extended past the victim’s thirteenth birthday, the defendant
was charged with a second count of sexual assault in the fourth degree as
to E in violation of General Statutes (Rev. to 2009) § 53a-73a (a) (1) (B) for
sexual contact with a person ‘‘thirteen years of age or older but under fifteen
years of age and the actor is more than three years older than such other
person . . . .’’ The defendant was charged with one count of risk of injury
to a child in violation of § 53-21 (a) (2) as to each of the four victims.
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State v. Tahir L.

to the commencement of trial, the court gave prelimi-
nary instructions to the jury. In its preliminary instruc-
tions addressing the elements of sexual assault in the
fourth degree, the court instructed the jury that ‘‘sexual
contact’’ means ‘‘any contact by the defendant with the
intimate parts of the complainant or contact of the
intimate parts of the defendant with the complainant.’’
The court further instructed the jury that ‘‘sexual con-
tact’’ as an element of sexual assault in the fourth degree
requires the jury to find that ‘‘the defendant had the
specific intent to obtain sexual gratification or to
degrade or humiliate the complainant.’’ See General
Statutes § 53a-65 (3). Following the presentation of evi-
dence, the court narrowed its final instructions on sex-
ual assault in the fourth degree to the elements for
which there was evidence to support the charge by
omitting the phrases ‘‘or contact of the intimate parts
of the defendant with the complainant’’ and ‘‘or to
degrade or humiliate the complainant.’’
In its preliminary instructions regarding the elements
of risk of injury to a child in violation of § 53-21 (a) (2),
the court, quoting the statutory language, instructed the
jury that the offense covers contact ‘‘likely to impair
the health or morals of such child.’’ Following the pre-
sentation of evidence, the trial court narrowed its final
instructions on the elements of the offense by omitting
the language regarding the impairment of morals, which
was not at issue in the case.
Additionally, the court in its preliminary remarks
repeatedly3 instructed the jury that the state must prove
each element of each offense beyond a reasonable
doubt, although the court did not provide a definition
of ‘‘reasonable doubt.’’ The defendant did not take
exception to the court’s preliminary instructions.
3
The court used the term ‘‘reasonable doubt’’ a total of twenty-four times
during its preliminary remarks.
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State v. Tahir L.

The defendant concedes4 that his claims as to the
court’s preliminary instructions were not preserved
and, therefore, requests review pursuant to State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015).5 Under Golding, ‘‘a defendant can
prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim
of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the
alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt.’’ (Emphasis omitted;
footnote omitted.) State v. Golding, supra, 239–40. ‘‘The
first two Golding requirements involve whether the
claim is reviewable, and the second two involve
whether there was constitutional error requiring a new
trial.’’ (Internal quotation marks omitted.) In re Na-Ki
J., 222 Conn. App. 1, 7, 303 A.3d 1206, cert. denied, 348
Conn. 929, 304 A.3d 860 (2023).
4
The defendant claims that the trial court prevented him from challenging
the preliminary instructions. We disagree. On the first day of voir dire, the
court invited the parties to submit proposed instructions without specifica-
tion as to preliminary or final instructions. Defense counsel asked the court
whether there was a deadline for instructional requests, and the court
responded, ‘‘No. Let’s see how the evidence comes in, and as it’s coming
in, okay?’’ The following day, the court stated: ‘‘And again, not to be a broken
record, any charges—charging documents that you want the court to have,
please submit ASAP.’’
The defendant did not submit proposed preliminary instructions, nor was
there an explicit request to do so by the defendant.
5
‘‘The state does not claim that the defendant waived the challenge to
the [court’s preliminary instructions] pursuant to State v. Kitchens, 299
Conn. 447, 10 A.3d 942 (2011).’’ State v. Thompson, 305 Conn. 806, 814 n.11,
48 A.3d 640 (2012); see id., 814 and n.11 (reviewing unpreserved challenge
to jury charge pursuant to Golding where state did not claim that defendant
waived challenge under Kitchens).
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State v. Tahir L.

Here, the record is adequate to review the defendant’s
claims relating to the court’s preliminary instructions.
The defendant contends that his claim is constitutional
in that the court’s instructions violated his due process
right to a fair trial. Even assuming, arguendo, that the
defendant’s claim is constitutional in nature, we con-
clude that the defendant failed to prove the existence
of a constitutional violation and that he was deprived
of a fair trial. Resultantly, his claim fails under the third
prong of Golding.
We are mindful that ‘‘[w]hen reviewing [a] challenged
jury instruction . . . we must adhere to the well settled
rule that a charge to the jury is to be considered in its
entirety, read as a whole, and judged by its total effect
rather than by its individual component parts.’’ (Internal
quotation marks omitted.) State v. Bruny, 342 Conn.
169, 202, 269 A.3d 38 (2022).
‘‘Preliminary instructions to prospective jurors in a
criminal case are not mandatory. . . . When prelimi-
nary instructions are given, they do not supersede those
given after evidence and arguments under our practice.’’
State v. Webb, 238 Conn. 389, 457, 680 A.2d 147 (1996).
‘‘Preliminary instructions serve the important function
of orienting the jurors to the nature of the trial to come.
It is helpful to explain at the very start the nature and
scope of the jury’s duty, some of the basic ground rules
and the issues to be decided.’’ J. Pellegrino, A Collection
of Connecticut Selected Jury Instructions: Criminal (3d
Ed. 2001) p. 3. Our model jury instructions provide
guidance as to what the court’s preliminary instructions
to the jury should entail, including apprising the jury
of the general legal principles in the case and apprising
the jury of the nature of the charges against the defen-
dant. When a trial court provides preliminary instruc-
tions, as it did here, it must do so without the benefit
of seeing the evidence subsequently presented at trial.
By providing instructions that contain the language of
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State v. Tahir L.

the statutes that the defendant was charged with vio-
lating, the court properly informed the jury of the nature
of the charges, not necessarily the specific manner in
which he was alleged to have violated them, in accor-
dance with the model jury instructions pertaining to
preliminary instructions.6
Here, the court’s preliminary instructions on the ele-
ments of each offense included instructions regarding
the state’s burden to prove each element beyond a rea-
sonable doubt, and the court’s preliminary instruction
on reasonable doubt was consistent with the model
jury instruction for preliminary instructions.7 The court
also properly explained the difference between prelimi-
nary instructions and final instructions. In its prelimi-
nary instructions, the court instructed the jurors that
6
Instruction 1.2-2 of the Connecticut Criminal Jury Instructions provides:
‘‘This is a criminal case. The state has brought charges against <insert
name of defendant> as follows: <read information>.
‘‘The information which I just read is not evidence. It is merely the formal
means of accusing a person of a crime and bringing (him/her) to trial. You
must not consider it as any evidence of the guilt of the defendant or draw
any inference of guilt because the defendant has been arrested and formally
charged. Each charge against the defendant is set forth in the information
as a separate count, and you must consider each count separately in deciding
this case.
‘‘<Identify each offense charged and summarize the elements.>’’ Connect-
icut Criminal Jury Instructions 1.2-2, available at http://www.jud.ct.gov/JI/
Criminal/Criminal.pdf (last visited August 21, 2024).
7
Instruction 1.2-3 of the Connecticut Criminal Jury Instructions provides
in relevant part:
‘‘Every defendant in a criminal case is presumed to be innocent and this
presumption of innocence remains with the defendant throughout the trial
unless and until (he/she) is proved guilty beyond a reasonable doubt.
‘‘The burden is on the state to prove the defendant guilty beyond a reason-
able doubt, and that burden of proof never shifts throughout the trial. Unless
you find at the conclusion of all the evidence that the state has proved
beyond a reasonable doubt that the defendant has committed every element
of an offense, you must find (him/her) not guilty of that offense. On the
other hand, if you are satisfied that the evidence establishes the guilt of the
defendant beyond a reasonable doubt, you should not hesitate to find (him/
her) guilty. . . .’’ Connecticut Criminal Jury Instructions 1.2-3, available at
http://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited August 21, 2024).
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State v. Tahir L.

once closing arguments were complete, the court would
‘‘instruct you as to the law that you must apply in this
case’’ and that ‘‘your verdict must be based exclusively
on evidence presented at trial and again on the princi-
ples of law given to you in my final instructions.’’
Moreover, ‘‘[i]n determining whether preliminary jury
instructions require reversal, we must ask whether the
jury was fully and properly instructed at the critical
time, after all the evidence and after the arguments of
counsel.’’ (Internal quotation marks omitted.) State v.
Marra, 222 Conn. 506, 537, 610 A.2d 1113 (1992). Follow-
ing the presentation of evidence, the court omitted from
its final instructions the three elements that were not
at issue in this case8 and properly defined ‘‘reasonable
doubt.’’ Accordingly, the defendant has failed to prove
that a constitutional violation exists and that it deprived
him of a fair trial.
Alternatively, the defendant claims that the court’s
allegedly erroneous preliminary instructions consti-
tuted plain error. In evaluating plain error claims, ‘‘we
must determine whether the trial court in fact commit-
ted an error and, if it did, whether that error was indeed
plain in the sense that it is patent [or] readily discernable
on the face of a factually adequate record, [and] also
. . . obvious in the sense of not debatable.’’ (Internal
quotation marks omitted.) State v. Darryl W., 303 Conn.
353, 373, 33 A.3d 239 (2012). ‘‘[T]he plain error doctrine
8
We note that, even if the trial court had included these elements in its
final instructions, it would not follow that a clear constitutional violation
exists and deprived the defendant of his right to a fair trial. See State v.
Clark, 264 Conn. 723, 736, 826 A.2d 128 (2003) (no constitutional error where
final instructions ‘‘merely added an additional element that the state was
not required to prove’’); State v. Vlahos, 138 Conn. App. 379, 393, 51 A.3d 1173
(2012) (no harm from jury instruction that included extraneous statutory
element), cert. denied, 308 Conn. 913, 61 A.3d 1101 (2013); State v. Rosado,
107 Conn. App. 517, 537, 945 A.2d 1028 (alleged constitutional violation
does not clearly exist where trial court’s instruction improperly included
additional element of intent), cert. denied, 287 Conn. 919, 951 A.2d 571 (2008).
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State v. Tahir L.

is reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings.’’ (Internal quotation marks
omitted.) State v. McClain, 324 Conn. 802, 812, 155 A.3d
209 (2017). A party cannot prevail under the plain error
doctrine ‘‘unless he demonstrates that the claimed error
is both so clear and so harmful that a failure to reverse
the judgment would result in manifest injustice.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id.
Here, the defendant has failed to demonstrate that
the court committed any error in its preliminary instruc-
tions, never mind one that was so harmful that a failure
to reverse the judgments would result in manifest injus-
tice. Moreover, because the court’s final instructions
covered all applicable legal principles, as we discuss
in part II of this opinion, the defendant has failed to
show that the claimed errors regarding the trial court’s
preliminary instructions merit the extraordinary relief
under the plain error doctrine. See State v. Alston, 272
Conn. 432, 450, 862 A.2d 817 (2005) (‘‘[e]ven in cases
wherein the preliminary instructions were held to be
incomplete and improvidently timed, we have not found
reversible error where the final jury instructions were
complete and appropriate’’). We therefore conclude
that the defendant’s challenge to the trial court’s prelim-
inary instructions is unavailing.
II
Next, the defendant claims that, in its final instruc-
tions to the jury, the court violated his constitutional
right to due process in (1) failing to give the jury a
propensity instruction, (2) instructing the jury that it
could consider the victims’ affidavits substantively
rather than solely for impeachment purposes, and (3)
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improperly instructing the jury on the elements of sex-
ual assault in the fourth degree.
The defendant acknowledges that he failed to pre-
serve these claims before the trial court and, therefore,
seeks review under State v. Golding, supra, 213 Conn.
239–40. The state claims that the defendant waived
these claims. We agree with the state.
‘‘[W]hen the trial court provides counsel with a copy
of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from
counsel regarding changes or modifications and coun-
sel affirmatively accepts the instructions proposed or
given, the defendant may be deemed to have knowledge
of any potential flaws therein and to have waived implic-
itly the constitutional right to challenge the instructions
on direct appeal. Such a determination by the reviewing
court must be based on a close examination of the
record and the particular facts and circumstances of
each case.’’ State v. Kitchens, 299 Conn. 447, 482–83,
10 A.3d 942 (2011).
‘‘[J]ury instructions [are] implicitly waived under
Golding . . . [when] the defense expressly acknowl-
edged and agreed by words or conduct to the instruction
challenged on appeal.’’ (Footnote omitted.) Id., 475; see
also State v. Hampton, 293 Conn. 435, 447–50, 988 A.2d
167 (2009) (claim of instructional error was waived
because defense assented to challenged instruction by
expressing satisfaction with instruction, suggesting no
changes, and failing to object after court asked counsel
for changes); State v. Elias V., 168 Conn. App. 321, 337,
147 A.3d 1102 (claim of instructional error was waived
because defense counsel participated in charging con-
ference, failed to submit written request to change chal-
lenged instruction, and expressed satisfaction with
challenged instruction), cert. denied, 323 Conn. 938, 151
A.3d 386 (2016); State v. Collazo, 115 Conn. App. 752,
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758–60, 974 A.2d 729 (2009) (claim of instructional error
was waived because defense counsel expressly agreed
with challenged instruction at charge conference and
failed to object after instruction was given), cert.
denied, 294 Conn. 929, 986 A.2d 1057 (2010). The defen-
dant does not contest that the trial court provided him
with a copy of proposed jury instructions or that he
had a meaningful opportunity to review and to offer
comments.9
Alternatively, the defendant argues that, even if these
claims were waived, each alleged error requires reversal
of the judgments under the plain error doctrine. As
stated herein, a party may prevail under the plain error
doctrine only if ‘‘he demonstrates that the claimed error
is both so clear and so harmful that a failure to reverse
the judgment would result in manifest injustice.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. McClain, supra, 324 Conn. 812. With these
principles in mind, we address the defendant’s three
claims in turn. Additional facts and procedural history
will be set forth as necessary.
A
We first address the defendant’s claim that the court
erred in failing to include in its final instructions a
limiting instruction regarding the use of nonpropensity
evidence for propensity purposes. As noted herein, the
defendant consented to the joinder of the information
charging the defendant with the abuse of A and the
information charging the defendant with the abuse of
the other three victims. In the court’s final instructions
to the jury, it properly advised the jury that it must
9
On Friday, September 30, 2022, the court provided proposed jury instruc-
tions to the parties for review ahead of a charging conference scheduled
for Monday, October 3, 2022. At the October 3, 2022 charging conference,
both parties indicated to the court that they had received the proposed
instructions and that they had had enough time to review them. The court
proceeded to review the instructions seriatim with the parties.
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deliberate on each count separately and must make
an independent determination as to whether the state
satisfied its burden of proof as to each element of the
charged offenses. The court did not, however, specifi-
cally instruct the jury that it could not use the evidence
pertaining to one information as propensity evidence
when considering the offenses charged in the other
information. We further note that the defendant did not
request such an instruction from the court. In fact, at
the charge conference, defense counsel stated that he
had no objection to the court’s proposed instructions
on evidence for a limited purpose and did not request
any additions or modifications to this section of the
instructions.
‘‘Connecticut courts have found implicit waiver when
defense counsel did not object to the challenged instruc-
tion for what clearly appeared, on the basis of counsel’s
trial conduct, to have been tactical reasons.’’ State v.
Kitchens, supra, 299 Conn. 479–80. Here, the defense
theory at trial was that the victims’ allegations were
part of a ‘‘corroborated attack’’ on the defendant orches-
trated by his now former wife, who had filed for divorce
two months prior to the four victims signing affidavits
at the attorney’s office. For example, when one victim
testified at trial about what another victim had told her
in a prior conversation, defense counsel stated that it
had no objection to the testimony and that, ‘‘[a]s far as
I’m concerned, this is them getting together and getting
their stories straight before they go to the attorney’s
office, so.’’ During closing arguments, defense counsel
highlighted the similarities in the timing of the disclo-
sure of each victim’s allegations, noting that all four
victims signed affidavits within days of the others, and
at times appeared to encourage the jury to consider the
affidavits of each victim in comparison to the affidavits
of the other victims.10 Accordingly, we conclude that
10
For example, defense counsel told the jury: ‘‘Take a look at [L’s] affidavit.
Take a look at [E’s]. So [E] created an incident with [L] that [L] doesn’t recall.’’
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the defendant waived this claim and, therefore, is not
entitled to Golding review.
We next turn to the defendant’s alternative claim
that the court’s failure to give a limiting instruction on
propensity evidence amounts to plain error. He curso-
rily asserts that the court’s alleged instructional error
was obvious and ‘‘denying relief would result in mani-
fest injustice.’’ We disagree. ‘‘It is well established in
Connecticut . . . that the trial court generally is not
obliged . . . to give a limiting instruction [sua
sponte].’’ (Internal quotation marks omitted.) State v.
Crenshaw, 313 Conn. 69, 90 n.16, 95 A.3d 1113 (2014).
Accordingly, we cannot conclude that the court com-
mitted error, much less plain error, by not, sua sponte,
providing a limiting instruction on the use of evidence
for propensity purposes in the absence of the defen-
dant’s request for such an instruction.
B
We next turn to the defendant’s claim that the court
erred in instructing the jury that it could use the victims’
affidavits as substantive evidence rather than solely for
impeachment purposes. During trial, defense counsel
introduced the affidavits of three of the victims, which
were admitted into evidence as full exhibits, wherein
the victims each recounted the incidents that occurred
between them and the defendant. At trial, defense coun-
sel did not indicate that the affidavits were introduced
only for a limited purpose but, in fact, explicitly offered
them as full exhibits.11 The defendant nevertheless
11
During cross-examination of A, the following exchange occurred when
defense counsel offered her affidavit into evidence:
‘‘[Defense Counsel]: I’m showing what’s defendant’s exhibit A for identifi-
cation, could you tell me what that is?
‘‘[The Witness]: My affidavit.
‘‘[Defense Counsel]: Is that the one that you signed in the Law Offices of
Mark Sherman?
‘‘[The Witness]: Correct.
‘‘[Defense Counsel]: Is that the one that was presented to the police?
‘‘[The Witness]: Correct.
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claims on appeal that it was evident from defense coun-
sel’s questions that they were introduced only for
impeachment purposes and not as substantive evi-
dence.
In the court’s final instructions to the jury, it provided
the following instruction on impeachment: ‘‘Evidence
has been presented that . . . witnesses may have made
statements outside of court that are inconsistent with
their trial testimony. You should consider this evidence
only as it relates to the credibility of the witness’ testi-
mony, not as substantive evidence. In other words, con-
sider such evidence as you would any other evidence
of inconsistent conduct in determining the weight to
be given to the testimony of the witness in court. . . .
‘‘In evidence as defense exhibits are prior statements
of [A], [L] and [E]. To the extent, if at all, you find such
statements inconsistent with the witness’ trial testi-
mony, you may give such inconsistency the weight to
which you feel it is entitled in determining the witness’
credibility here in court. You may also use these written
statements for the truth of its content and find facts
from it.’’
At the charge conference prior to giving its final
instructions, the court reviewed this section on
impeachment with the parties. When the court asked
the parties, ‘‘are we good with that [section],’’ defense
‘‘[Defense Counsel]: Could you go to the second page, is that your signature
at the bottom?
‘‘[The Witness]: Yes, it is.
‘‘[Defense Counsel]: Your Honor, [at] this time I’d offer the entire affidavit,
it is an affidavit sworn under oath as a full exhibit. I believe, a full affidavit
sworn under oath, can come in as a full exhibit. . . .
‘‘[The Court]: All right. We’re gonna have it marked full . . . . You want
this entered as a full exhibit; correct?
‘‘[Defense Counsel]: I do.’’
During the subsequent testimony of L and E, defense counsel similarly
offered their affidavits into evidence as full exhibits.
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counsel responded affirmatively. The prosecutor, how-
ever, noted at that time that the court’s instruction may
cause confusion in that it instructs the jury that it may
not use the witnesses’ out of court statements as sub-
stantive evidence and immediately thereafter instructs
the jury that it may consider the witnesses’ affidavits
as substantive evidence.
The court, in reference to the affidavits, responded:
‘‘I mean, [they] did come in for both purposes, that’s
the whole thing.’’ To clarify the instruction, the court
suggested inserting the word ‘‘written’’ before ‘‘state-
ments’’ when referencing which out-of-court statements
that the jury may consider as substantive evidence. Both
parties affirmatively agreed with the modified language,
and defense counsel stated that the change ‘‘seems
appropriate.’’ The court subsequently incorporated the
modification into its final instructions. Defense counsel
raised no objection during the charge conference
regarding the language permitting the jury to consider
the affidavits as substantive evidence, nor did defense
counsel take exception to the language after the court
delivered its final instructions. Accordingly, the defen-
dant assented to the instruction by expressing satisfac-
tion with the charge and failing to take exception to
the challenged language at the charging conference or
after the instruction was given. The defendant waived
this claim, and, therefore, he is not entitled to Gold-
ing review.
Alternatively, the defendant claims that it was plain
error for the court to instruct the jury that it may use
the victims’ affidavits as substantive evidence rather
than solely for impeachment purposes. It is well estab-
lished that ‘‘[a]n exhibit offered and received as a full
exhibit is in the case for all purposes.’’ (Internal quota-
tion marks omitted.) State v. Camacho, 282 Conn. 328,
377, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct.
388, 169 L. Ed. 2d 273 (2007). Accordingly, the court
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did not commit error, much less plain error, by
instructing the jury that it may consider full exhibits,
admitted for all purposes, as substantive evidence.
C
We now turn to the defendant’s third claim that the
court erred in instructing the jury on the elements of
sexual assault in the fourth degree. With respect to four
of the five counts of sexual assault in the fourth degree,
the court instructed that ‘‘[t]he first element is that the
defendant subjected the complainant . . . to sexual
contact.’’ In instructing on these four counts, however,
the trial court erroneously quoted the language of a
more recent revision of the statute rather than the oper-
ative revisions at issue in this case, which each require
that the defendant ‘‘intentionally subject[ed] another
person to sexual contact . . . .’’ (Emphasis added.)
General Statutes (Rev. to 2003) § 53a-73a (a) (1); Gen-
eral Statutes (Rev. to 2009) § 53a-73a (a) (1).12
In the defendant’s reply brief,13 he concedes that he
waived his claim regarding the instruction on the ele-
ments of sexual assault in the fourth degree14 but argues
12
General Statutes (Rev. to 2003) § 53a-73a provides in relevant part: ‘‘(a)
A person is guilty of sexual assault in the fourth degree when: (1) Such
person intentionally subjects another person to sexual contact who is (A)
under fifteen years of age . . . .’’
General Statutes (Rev. to 2009) § 53a-73a provides in relevant part: ‘‘(a)
A person is guilty of sexual assault in the fourth degree when: (1) Such
person intentionally subjects another person to sexual contact who is (A)
under thirteen years of age and the actor is more than two years older than
such other person . . . .’’
13
Specifically, the defendant concedes that defense counsel’s affirmative
agreement with the court as to the language of all but two of the charges
of sexual assault in the fourth degree fairly waived the objection as to the rest.
14
At oral argument before this court, when asked about the concession
in the reply brief, the defendant’s appellate counsel equivocated as to
whether she stood by that concession. When asked whether she was with-
drawing her concession, she did not give a conclusive response. Even if the
defendant had not conceded that he had waived his claim to the court’s
instruction in this regard, we conclude, for the reasons stated herein, that
he has failed to demonstrate that the error deprived him of a fair trial and,
therefore, his claim fails under the third prong of Golding.
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that the court’s omission of the word ‘‘intentionally’’
requires reversal of the judgments under the plain error
doctrine. The state concedes, and we agree, that the
court erred when it omitted the word ‘‘intentionally’’
from its instruction on the elements of sexual assault
in the fourth degree. Because we conclude that error
exists, whether the defendant can prevail under the
plain error doctrine turns on whether the court’s error
was of ‘‘such monumental proportion that [it] threat-
en[s] to erode our system of justice and work a serious
and manifest injustice on the aggrieved party.’’ (Internal
quotation marks omitted.) State v. Blaine, 334 Conn.
298, 305, 221 A.3d 798 (2019). As an initial matter, we
note that our Supreme Court recently emphasized ‘‘that
it has been especially rare for a jury instruction to be
so clearly improper that our courts have deemed plain
error review necessary to correct it.’’ State v. Kyle A.,
348 Conn. 437, 448, 307 A.3d 249 (2024). Moreover, ‘‘[a]n
omission, or an incomplete instruction, is less likely to
be prejudicial than a misstatement of the law.’’ (Internal
quotation marks omitted.) Id., 451.
As noted herein, ‘‘[w]hen reviewing the challenged
jury instruction . . . we must adhere to the well settled
rule that a charge to the jury is to be considered in its
entirety, read as a whole, and judged by its total effect
rather than by its individual component parts.’’ (Internal
quotation marks omitted.) State v. Bruny, supra, 342
Conn. 202. After a thorough review of the record, we
cannot conclude that this error resulted in manifest
injustice.
In its final instructions, the trial court instructed the
jury that the concept of specific intent applies to each
of the five counts of sexual assault in the fourth degree.
The court then defined specific intent, stating: ‘‘Specific
intent is the intent to achieve a specific result. A person
acts ‘intentionally’ with respect to a result when his
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conscious objective is to cause such result.’’ After pro-
viding this definition, the court again instructed the jury
that the concept of specific intent applies to each of
the five counts of sexual assault in the fourth degree.
When the court instructed the jury on the elements for
each count of sexual assault in the fourth degree, it
stated that, for the second element, it must find that
the defendant ‘‘had the specific intent to obtain sexual
gratification’’ and reiterated that ‘‘[a] person acts ‘inten-
tionally’ with respect to a result when his conscious
objective is to cause such result.’’ Additionally, although
the court’s instructions on four of the five counts of
sexual assault omitted the word ‘‘intentionally’’ when
defining the first element of the offense, subjecting
another person to sexual contact, the court, prior to
reciting the elements for each count, stated: ‘‘The stat-
ute defining this offense reads in pertinent part as fol-
lows: A person is guilty of sexual assault in the fourth
degree when such person intentionally subjects
another person to sexual contact . . . .’’ (Emphasis
added.) Thus, considering the court’s charge in its
entirety, we conclude that, despite the court’s errone-
ous omission of the word ‘‘intentionally,’’ the jury was
properly instructed that the state must prove that the
defendant’s conduct was intentional for each count of
sexual assault in the fourth degree.
We therefore conclude that, when read as a whole,
the court’s final instructions did not dilute the state’s
burden of proving beyond a reasonable doubt that the
defendant intentionally subjected the victims to sexual
contact with respect to each of the five counts of sexual
assault in the fourth degree. Accordingly, the defendant
cannot prevail under the plain error doctrine because
he has not demonstrated that the court’s erroneous
instruction as to the elements of sexual assault in the
fourth degree resulted in manifest injustice.15
15
In support of this claim, the defendant cites our Supreme Court’s deci-
sion in State v. Anderson, 227 Conn. 518, 631 A.2d 1149 (1993), which
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III
Third, the defendant claims that the trial court erred
in admitting into evidence (1) photographs of the vic-
tims at their ages when the abuse began and (2) a
photograph of the defendant’s gun safe. We disagree.
A
The following additional facts are relevant to our
consideration of the defendant’s claim that the court
erred in admitting into evidence photographs of the
victims at their ages at the time the abuse began because
‘‘they were irrelevant, highly prejudicial and . . .
harmful . . . .’’ The victims were twenty years of age
or older when they testified at trial. For each of the
nine counts, the state had to prove the victim’s age at
the time of the abuse.16 At trial, the state introduced
photographs of A and of L when they were ten years
old and photographs of B and of E when they were
twelve years old. On each occasion, defense counsel
addressed the trial court’s erroneous omission of the word ‘‘complete’’ from
the phrase ‘‘with complete safety’’ when instructing on the duty to retreat
element of the self-defense statute. (Internal quotation marks omitted.) Id.,
531–32. In holding that the court’s erroneous instruction required reversal
of the judgment, the court concluded that the trial court’s omission substan-
tively altered the statute’s duty to retreat element, which was central to the
only contested issue in the case—the defendant’s self-defense claim. Id.
Anderson is inapposite because the court’s erroneous instruction did not
go to a contested central issue of the present case in that the issue at trial
was not whether the defendant acted with intent, but whether the alleged
conduct even occurred.
16
For each of the four counts of risk of injury to a child, the state had
to prove that the victim was under sixteen years of age. See General Statutes
§ 53-21 (a) (2). For four of the counts of sexual assault in the fourth degree
under § 53a-73a (a) (1) (A), the state had to either prove that the victim
was under fifteen years of age (A); see General Statutes (Rev. to 2003) § 53a-
73a (a) (1) (A); or under thirteen years of age (B, L, and E). See General
Statutes (Rev. to 2009) § 53a-73a (a) (1) (A). For the second count of sexual
assault in the fourth degree as to the abuse of E, the state had to prove
that the victim was thirteen years of age or older and less than fifteen years
of age. See General Statutes (Rev. to 2009) § 53a-73a (a) (1) (B).
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stated that he had no objection to the victim’s photo-
graph being admitted as a full exhibit.17 The defendant
concedes that his evidentiary claim regarding the photo-
graphs of the victims is not preserved but argues that
reversal is appropriate under the plain error doctrine.
We disagree.
We cannot conclude that the defendant has demon-
strated that the claimed error is both so clear and so
harmful that reversal is required under the plain error
doctrine. Even assuming, arguendo, that the photo-
graphs would have been inadmissible if objected to at
trial, the defendant cites no authority for the proposi-
tion that the trial court has an affirmative obligation
to preclude the admission of certain evidence in the
absence of an objection. Moreover, this court consis-
tently has rejected unpreserved evidentiary claims
asserting plain error.18 Indeed, it is well established that,
17
Additionally, at defense counsel’s request, once admitted, the photo-
graphs of A and B were taken down for the remainder of the witness’
testimony after being shown to the jury.
18
See In re Miyuki M., 202 Conn. App. 851, 857–58, 246 A.3d 1113 (2021)
(unpreserved claim that court erred by accepting exhibit into evidence
without canvassing opposing party did not warrant relief under plain error
doctrine); State v. Rodriguez, 192 Conn. App. 115, 118–22, 217 A.3d 21 (2019)
(unpreserved claim that court erred in admitting uncharged misconduct
evidence did not warrant relief under plain error doctrine because alleged
error was not so obvious that it affected fairness and integrity of and public
confidence in judicial proceedings); State v. Patterson, 170 Conn. App. 768,
784–86, 156 A.3d 66 (unpreserved claim that state improperly questioned
expert witness on cross-examination did not involve alleged error sufficient
to warrant relief under plain error doctrine), cert. denied, 325 Conn. 910,
158 A.3d 320 (2017); State v. Natal, 113 Conn. App. 278, 283–86, 966 A.2d
331 (2009) (unpreserved claim that court erroneously admitted testimony
regarding results of defendant’s urine tests did not present ‘‘the type of
extraordinary situation implicating [the plain error] doctrine’’); see also
State v. Bowman, 289 Conn. 809, 819–22, 960 A.2d 1027 (2008) (unpreserved
claim that court in murder trial erred in admitting eight irrelevant and
‘‘ ‘exceptionally gruesome’ ’’ photographs of deceased victim did not result
in manifest injustice to defendant and thus precluded relief under plain
error doctrine), overruled on other grounds by State v. Elson, 311 Conn.
726, 91 A.3d 862 (2014).
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‘‘[w]hen opposing counsel does not object to evidence,
it is inappropriate for the trial court to assume the role
of advocate and decide that the evidence should be
stricken. . . . The court cannot determine if counsel
has elected not to object to the evidence for strategy
reasons.’’ (Internal quotation marks omitted.) State v.
Burgos-Torres, 114 Conn. App. 112, 118, 968 A.2d 476,
cert. denied, 293 Conn. 908, 978 A.2d 1111 (2009). Thus,
the defendant’s unpreserved evidentiary claim does not
present a truly extraordinary situation in which the
alleged error is so obvious that it would affect the fair-
ness and integrity of and public confidence in the judi-
cial proceedings. We therefore decline to afford the
defendant relief under the plain error doctrine.
B
The defendant next claims that the court erred in
admitting a photograph of the defendant’s gun safe
because it was not relevant and was highly prejudicial.
The defendant claims that this evidentiary claim is pre-
served. We disagree and conclude that this claim is not
preserved and thus decline to review it.
The following additional facts are relevant to our
consideration of the defendant’s claim. On the state’s
redirect examination of E, she stated that the defendant
owned guns and a gun safe in response to a question
about her fear of the defendant. The state then asked
another question specifically about the gun safe.
Defense counsel did not object. The state then offered
a photograph of the gun safe as a full exhibit, to which
defense counsel raised a foundational objection, stating
that ‘‘[t]he person who took that photograph isn’t here.’’
The court overruled the objection but instructed the
state to lay a better foundation. After doing so, the state
again offered the photograph as a full exhibit, and when
the court asked if there was an objection, defense coun-
sel responded, ‘‘[i]t’s already been overruled, no,’’ and
the court admitted the photograph as a full exhibit.
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On appeal, the defendant claims that the court erred
in admitting the photograph of the gun safe because it
was not relevant and was highly prejudicial. ‘‘Appellate
review of evidentiary rulings is ordinarily limited to the
specific legal [ground] raised by the objection of trial
counsel. . . . To permit a party to raise a different
ground on appeal than [that] raised during trial would
amount to trial by ambuscade, unfair both to the trial
court and to the opposing party.’’ (Internal quotation
marks omitted.) State v. Stenner, 281 Conn. 742, 755,
917 A.2d 28, cert. denied, 552 U.S. 883, 128 S. Ct. 290,
169 L. Ed. 2d 139 (2007). Accordingly, because defense
counsel objected to the photograph of the gun safe
only on the basis of lack of a proper foundation, the
defendant cannot now challenge its admission on the
ground that it was not relevant and, therefore, we
decline to review this claim.
IV
The defendant finally claims that the state committed
prosecutorial impropriety in that it (1) used the term
‘‘sexual assault’’ when examining the victims and (2)
suggested that the defendant’s abuse of A caused her
breast cancer. We disagree.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in 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.’’ (Internal quotation marks omitted.)
State v. Albino, 312 Conn. 763, 771, 97 A.3d 478 (2014).
We look at the circumstances of the case and at the
context of the prosecutor’s challenged conduct, and
‘‘[t]here is . . . no mathematical formula that can be
applied ritualistically to [such] claims . . . .’’ State v.
Rodriguez, 107 Conn. App. 685, 701–702, 946 A.2d 294,
cert. denied, 288 Conn. 904, 953 A.2d 650 (2008).
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A
We first address the defendant’s challenge to the
state’s use of the term ‘‘sexual assault.’’ On direct exami-
nation, A testified that she was ‘‘sexually assaulted’’ by
the defendant. The prosecutor then asked A to tell the
jury about what she had ‘‘described [as] being a sexual
assault,’’19 and, in response, A described the specific
occasions on which the defendant had sexually
assaulted her. Thereafter, the prosecutor asked five
questions of A in which she used the term ‘‘sexual
assault’’ or a derivative of the term.20 During the prose-
cutor’s direct examination of E, the court took a brief
recess after E became emotional while recounting a
particular instance in which the defendant had sexually
assaulted her. When E retook the stand, the prosecutor
stated, ‘‘I’m trying to remember where we were. When
the defendant—I’m sorry. I had asked you about what
you heard and talked about heavy breathing,’’ before
asking E, ‘‘Did you hear anything else when the defen-
dant was sexually assaulting you?’’
The defendant claims that the prosecutor’s six uses
of the term ‘‘sexual assault’’ when questioning witnesses
was improper because the commission of a sexual
assault was an issue for the jury to decide. Even assum-
ing arguendo that a prosecutor’s reference to a charged
offense may constitute prosecutorial impropriety in
some circumstances,21 we are not convinced that the
19
On appeal, the defendant does not claim that the prosecutor’s use of
the term ‘‘sexual assault’’ in this particular question was improper.
20
Specifically, the prosecutor asked A: (1) ‘‘So you told your mother, not
that the defendant was sexually assaulting you, but that he was a bad
person?’’ (2) ‘‘When was the first time you told someone in your family that
the defendant sexually assaulted you?’’ (3) ‘‘[H]ow does Albanian culture
treat sexual assault?’’ (4) ‘‘When did your parents find out that the defendant
had sexually assaulted you?’’ And (5) ‘‘[b]ut there was no sexual assault
when [the defendant] was in New Milford?’’
21
The defendant argues that the prosecutor’s use of the term ‘‘sexual
assault’’ is tantamount to a prosecutor referring to complainants as ‘‘victims’’
when the commission of a crime is at issue. Our Supreme Court has stated
that when the commission of a crime is at issue in a case, a court’s repeated
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prosecutor’s use of the term ‘‘sexual assault’’ in six
questions during trial was improper.22 Here, it was A
who first used the term ‘‘sexual assault.’’ The prosecutor
then used the term in five subsequent questions of A,
three of which related to A’s disclosure regarding her
allegation of sexual assault against the defendant, and
one of which was how Albanian culture views sexual
assault. The prosecutor also used the term when ques-
tioning E, but only to help E recall where her testimony
had left off prior to the court taking a brief recess.
Defense counsel did not take exception at trial to any
of the state’s uses of the term ‘‘sexual assault,’’ nor did
the trial court ever instruct the prosecutor to refrain
use of the word ‘‘victim’’ with reference to a complaining witness is inappro-
priate. See, e.g., State v. Warholic, 278 Conn. 354, 369, 897 A.2d 569 (2006).
This is because the ‘‘jury could . . . [draw] only one inference from its
repeated use, namely, that the defendant had committed a crime against
the complainant.’’ Id. However, ‘‘[a] different set of circumstances exists
when the person making reference to the complaining witness is the prosecu-
tor.’’ State v. Rodriguez, 107 Conn. App. 685, 701, 946 A.2d 294, cert. denied,
288 Conn. 904, 953 A.2d 650 (2008). Although our Supreme Court has cau-
tioned the state against making excessive use of terms like ‘‘victim’’ when
the commission of a crime is at issue, our courts ‘‘repeatedly have concluded
that a prosecutor’s infrequent use of the term ‘victim’ does not constitute
prosecutorial impropriety.’’ State v. Johnson, 345 Conn. 174, 217, 283 A.3d
477 (2022).
22
For example, in State v. Olivero, 219 Conn. App. 553, 295 A.3d 946, cert.
denied, 348 Conn. 910, 303 A.3d 10 (2023), this court found no impropriety
in a prosecutor’s nine uses of the term ‘‘victim’’ while questioning witnesses;
id., 585–86; because the prosecutor’s use of the term occurred over three
days of evidence, generally occurred after the witnesses first used the term,
and the court never instructed the prosecutor not to use the term. Id.,
591–94. On the other hand, in State v. Albino, supra, 312 Conn. 765, our
Supreme Court affirmed the judgment of this court, and concluded, inter
alia, that, although there were various statements made by the prosecutor
that were improper, the defendant was not deprived of a fair trial. This
court concluded that prosecutorial impropriety was committed where the
commission of a crime was at issue and the prosecutor referred to the
complainant as ‘‘the victim’’ approximately twenty-seven times, to the killing
as a ‘‘murder’’ approximately twelve times, and to the firearm as the ‘‘murder
weapon’’ approximately six times during the evidentiary phase of the trial.
State v. Albino, 130 Conn. App. 745, 766, 24 A.3d 602 (2011), aff’d, 312 Conn.
763, 97 A.3d 478 (2014).
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from using the term. Accordingly, given the circum-
stances of this case, the relatively infrequent use of the
term, and the context in which the term was used, we
conclude that the prosecutor’s six uses of the term
‘‘sexual assault’’ when questioning the witnesses did
not constitute prosecutorial impropriety.
B
The defendant next claims that the prosecutor
improperly suggested that the defendant’s abuse caused
A’s breast cancer. The following additional facts are
relevant to our consideration of the defendant’s claim.
On direct examination, A, in response to a question
about when her parents became aware of the abuse,
used her breast cancer diagnosis to recall which year
that disclosure occurred. The following colloquy then
occurred:
‘‘Q. So let me ask about the breast cancer. You’re a
young woman of twenty-nine.
‘‘A. Yes.
‘‘Q. Did you talk with your doctors about your breast
cancer?
‘‘A. I did.’’
Defense counsel then objected on relevance grounds,
and the state responded that the questions go to an
element of risk of injury to a child. The court sustained
the objection, and the state did not ask any further
questions of A regarding her breast cancer diagnosis,
although defense counsel brought the issue up on cross-
examination.23
Additionally, after the court sustained defense coun-
sel’s objection, A gave, without objection from defense
23
Defense counsel asked A: ‘‘The therapy, was that after you had breast
cancer or before, did you start it?’’
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counsel, the following testimony in response to a ques-
tion about therapy during the state’s direct examination:
‘‘I was seeing [a] therapist because of [the defendant’s
abuse] in particular; it was causing a lot of issues in
my life. I started drinking a lot more than I normally
was drinking. I was depressed, I was angry, I was doing
things that just like, I wasn’t myself. And then on top
of that, I got breast cancer a year later, so that just kind
of really brought my whole life down. My insecurities,
I was super insecure. I felt like I lost my whole woman-
hood on top of what had already occurred, so it was
just a lot to deal with at once and I just needed someone
to talk to and she’s been great, ever since I started
talking to her . . . .’’
During closing arguments, the prosecutor told the
jury that in order to convict the defendant of risk of
injury to a child, it had to find that the defendant’s
conduct was likely to impair the health of the victim,
and then argued: ‘‘You heard [A] very candidly tell you
as a result of this, things were not going well for her.
She was drinking too much, she was depressed, she
was angry and then she got breast cancer. There is
ample evidence before you, ladies and gentlemen, that
in fact the defendant did impair the health of [A].’’
The defendant claims that the prosecutor’s remarks
during direct examination of A and in closing arguments
improperly insinuated that the defendant’s abuse
caused the victim’s breast cancer. The state disagrees
with this interpretation and contends that the prosecu-
tor’s argument was that the defendant’s abuse caused
heightened trauma for the victim when she was diag-
nosed with breast cancer, not that it caused the breast
cancer itself. We agree with the state. The prosecutor
never claimed a causal relationship between the defen-
dant’s abuse and the victim’s breast cancer, and we
conclude that the jury could not have reasonably inter-
preted the prosecutor’s remarks as suggestive of such
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a connection. See State v. Felix R., 319 Conn. 1, 13,
124 A.3d 871 (2015) (‘‘for the purpose of determining
whether a challenged remark is improper, when select-
ing among multiple, plausible interpretations of the lan-
guage, this court will assign the remark the less damag-
ing, plausible meaning’’). Accordingly, we reject the
defendant’s argument that the prosecutor improperly
suggested to the jury that the defendant’s abuse caused
A’s breast cancer.
The judgments are affirmed.
In this opinion the other judges concurred.