State v. Sullivan

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STATE OF CONNECTICUT v. CASEY
LIEM SULLIVAN
(AC 45378)
Cradle, Clark and Palmer, Js.

Syllabus

Convicted of the crimes of unlawful restraint in the second degree, sexual
assault in the fourth degree, attempt to commit sexual assault in the third
degree and sexual assault in the third degree, the defendant appealed
to this court. The defendant rented a basement apartment in his raised
ranch home to K. One day, K texted the defendant to let him know that
her daughter, C, would be staying in the apartment that night. C arrived
that evening and stayed in K’s apartment, where no one else was present.
At one point that evening, before K arrived home, the defendant knocked
on the basement door and invited C upstairs to meet his dogs. Approxi-
mately one-half hour later, after C had returned to the apartment, the
defendant again came downstairs and invited C upstairs to show her
some sculptures he had made. After C had viewed the sculptures, C
climbed over a dog gate on the stairway to return to the basement. At
that point, the defendant grabbed C under her arms and lifted her back
over the gate, placing her on a couch in the living room and laying on
top of her. He rubbed C’s breasts and genitals over her clothing. When
the defendant shifted his position, C was able to slide out from under-
neath him and off the couch, and she walked to the stairway with the
dog gate. The defendant followed, and, using his leg to pin C against
the gate, he undid his waistband, exposed his penis, and grabbed C’s
hand. As C attempted to climb over the dog gate, the defendant tugged
at her shirt and bra, exposing her breasts, and proceeded to kiss and
lick one of C’s exposed breasts and neck. C was eventually able to get
over the gate, after which she returned to K’s apartment and locked the
door behind her. On appeal, the defendant claimed, inter alia, that the
prosecutor committed prosecutorial impropriety during rebuttal closing
argument, specifically by her use of the phrase ‘‘nuts and sluts’’ in her
statement that, ‘‘[i]n sex cases, it’s generally nuts and sluts is what they
call it. Either the victim has had other, you know, situations that you’re
not gonna believe that she wasn’t consenting or she’s nuts. And the
question is do you think [C] is nuts? Because she’d have to be nuts to
make all of this up.’’ Held:
1. The defendant could not prevail on his claim that prosecutorial impropriety
occurred as a result of certain of the prosecutor’s statements during
rebuttal closing argument:
a. A statement made by the prosecutor discussing four general defenses
in criminal cases during argument was not improper and did not imply
that the defendant had a duty to present a defense: the prosecutor’s
statement was a brief preface to the state’s rebuttal argument that C did
not have a motive to lie, and, in context, was used simply to rebut defense
counsel’s asserted defense that C was lying about the incident and that
the alleged incident never occurred; moreover, at no point during the
rebuttal argument did the state suggest that the defendant had a duty
to present one of the four defenses or a defense at all, and, in fact, on
multiple occasions during closing arguments, the prosecutor reminded
the jury that, before it could find the defendant guilty, it must find that
the evidence presented proved the defendant’s guilt beyond a reason-
able doubt.
b. This court concluded that, in this particular case, the prosecutor’s
use of the phrase ‘‘nuts and sluts’’ during rebuttal closing argument did
not constitute prosecutorial impropriety: the prosecutor’s statements, in
context, invited the jury to assess C’s credibility based on the relevant
evidence, and were used to rebut the arguments that defense counsel
had made during his summation in which he suggested that C was lying
about the incident and that the alleged incident never occurred, and the
statement at issue did not imply any burden of proof on the part of the
defense; moreover, contrary to the defendant’s claim, the statement, in
context, was not highly inflammatory and did not appeal to the emotions
of the jurors, as the statement was not used as a personal attack on the
defendant’s character or as a plea for sympathy for C or her family;
furthermore, even if this court were to conclude, for the sake of argument,
that the use of the phrase ‘‘nuts and sluts’’ in the prosecutor’s argument
was improper, it did not deprive the defendant of a fair trial, as the
remarks were not frequent or severe, defense counsel did not object to
the remarks when they were spoken, request curative instructions, or
move for a mistrial, and, although the credibility of C was a central
issue in the case and the remarks had some bearing on credibility, the
defendant’s reliance on centrality in support of his due process argument
was counterbalanced by the fact that the defense, at least in part, invited
the remarks by calling into question the veracity of C’s testimony by
arguing that the alleged assault did not occur, and the state presented
strong direct and circumstantial evidence against the defendant, includ-
ing the presence of his DNA on C’s neck and contemporaneous Facebook
messages from C to K pleading for help, evidence sufficiently strong
enough not to have been overshadowed by the alleged improper remarks.
2. The defendant could not prevail on his claim that his punishments stem-
ming from his convictions of sexual assault in the third degree and
sexual assault in the fourth degree violated his constitutional protection
against double jeopardy: the offenses charged did not arise from the
same act or transaction as the evidence showed that the conduct related
to the charge of fourth degree sexual assault began on the living room
couch and ended when C slid out from underneath the defendant, stood
up, and proceeded to walk away, and a separate act, the basis of the third
degree sexual assault charge, occurred when the defendant subsequently
approached C at the top of the stairs leading to K’s apartment and pulled
down C’s shirt and bra, exposing her breasts, and licked her breast and
neck, and the state’s theory of the case at trial buttressed the conclusion
that the charges stemmed from these separate acts or transactions;
moreover, contrary to the defendant’s contentions, the fact that the
state charged the defendant with multiple offenses that occurred at the
same residence in a relatively short time span did not necessarily mean
that his convictions arose from the same criminal act or transaction.
Argued April 6—officially released July 11, 2023

Procedural History

Substitute information charging the defendant with
the crimes of unlawful restraint in the second degree,
sexual assault in the fourth degree, attempt to commit
sexual assault in the third degree, and sexual assault
in the third degree, brought to the Superior Court in
the judicial district of Windham, and tried to the jury
before Chaplin, J.; verdict and judgment of guilty, from
which the defendant appealed to this court. Affirmed.
Trent A. LaLima, with whom was Virginia M. Gil-
lette, for the appellant (defendant).
Jonathan M. Sousa, assistant state’s attorney, with
whom, on the brief, was Anne Mahoney, state’s attor-
ney, for the appellee (state).
Opinion

CLARK, J. The defendant, Casey Liem Sullivan,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of unlawful restraint in the second
degree in violation of General Statutes § 53a-96, sexual
assault in the fourth degree in violation of General Stat-
utes § 53a-73a (a) (2), attempt to commit sexual assault
in the third degree in violation of General Statutes
§§ 53a-49 (a) (2) and 53a-72a (a) (1), and sexual assault
in the third degree in violation of § 53a-72a (a) (1). On
appeal, the defendant claims that (1) the prosecutor
committed prosecutorial impropriety and deprived him
of a fair trial when she made certain improper state-
ments during closing arguments, and (2) his punish-
ments stemming from his conviction of sexual assault
in the third degree and sexual assault in the fourth
degree violated his constitutional protection against
double jeopardy. We disagree with both claims and,
accordingly, affirm the judgment of the court.
The jury reasonably could have found the following
facts. In January, 2017, K responded to a Craigslist ad for
a basement apartment rental in the defendant’s raised
ranch home. K entered into a verbal agreement with
the defendant for the apartment, which included a six
month lease term, a $500 security deposit, and a
monthly rent of $700. K had received a notice to quit
from her former landlord for nonpayment of rent and
liked that the terms of the lease agreement with the
defendant were ‘‘loose’’ because she was in a ‘‘transi-
tional period’’ in her life.
On March 29, 2017, K texted the defendant to let him
know that her daughter, C, would be staying over that
night.1 C, who was then twenty years old, had recently
gone through a difficult breakup with her boyfriend and
needed a place to stay for the night as she prepared to
move into a new apartment the following day.
On the evening of March 29, 2017, K went to band
practice2 at her bandmate M’s house and left a key
under the doormat so that C could enter the basement
apartment after C finished her shift at work.3 C arrived
that evening and stayed in her mother’s apartment,
where no one else was present. Sometime before 10
p.m., the defendant came downstairs and knocked on
the basement door. After C opened the door, the defen-
dant asked her if she needed anything and if she wanted
to come upstairs to meet his dogs. C agreed to come
upstairs. She followed the defendant up the stairs and
proceeded to pet the defendant’s dogs. The defendant
then asked C if she wanted the Wi-Fi password to access
his Internet. C accepted the password, after which the
defendant approached her and hugged her. C did not
hug him back and kept her arms at her side because
she felt uncomfortable and did not like to be touched
by strangers.4 She told the defendant that the interaction
‘‘was weird,’’ and she proceeded to jump over the dog
gate that was at the top of the basement stairs and
returned to her mother’s apartment downstairs.5
Approximately one-half hour later, the defendant
again came downstairs to K’s apartment where C was.
He brought with him his cell phone where he had C’s
Instagram account visible on the screen. The defendant
proceeded to show C her own photos from her account,
commenting on her looks and telling her that she looked
attractive. His comments made her feel uncomfortable,
especially in light of the prior interaction that she had
with the defendant that evening. But, to be polite, she
thanked him. During this conversation, the defendant
told her that he had an interest in sculpting and wanted
to show her some sculptures in the garage that he had
made. C, in an effort to be polite, followed the defendant
to the doorway of the garage, where he proceeded to
show her his sculptures and around the room, which
contained a motorcycle and his dirt bikes. C did not
enter the garage. Instead, she viewed the garage from
the doorway.
After showing C the garage area, the defendant men-
tioned that he had more sculptures upstairs and invited
C to see them. C agreed and followed the defendant
upstairs. The defendant led C to his bedroom to show
her a sculpture but, again, C remained in the doorway
because she did not feel comfortable entering the room.
At that point, the defendant told C that he had a projec-
tor in the bedroom and wanted to ‘‘Netflix and chill’’
with her. C said no because it was strange and that she
did not know him like that. The defendant went to exit
the bedroom, and C backed straight up against the wall
in the hallway to give him space to walk by her. Instead
of walking by C, who moved against the wall to let the
defendant go by, the defendant walked toward her and
put his hands on her hips. C stepped to the side and
walked down the hallway away from the defendant and
toward the dog gate.
C climbed over the dog gate and turned around when
she reached the top step because she did not want her
back to the defendant. The defendant had followed
quickly behind her, grabbed her under her arms, and
lifted her back over the gate, saying, ‘‘oh, you are so
light, I could just pick you up.’’ He then placed C on
the couch in the living room and laid on top of her.
While on the couch, the defendant put all of his weight
on top of her and started kissing her neck. He then
rubbed her breasts and genitals over her clothing. The
defendant told C that she was ‘‘a bombshell,’’ that he
‘‘couldn’t pass up the opportunity,’’ and that she was
‘‘being quarantined.’’ C, who weighed significantly less
than the defendant, was unable to move underneath
him due to his weight. She did not put her arms around
the defendant or kiss him back.
At some point, the defendant shifted his position on
C, which freed C’s hand to allow her to utilize her cell
phone. While the defendant continued to kiss her neck
and rub her genitals, C accessed the Facebook messen-
ger application on her phone and sent ‘‘help me’’ to
her mother. The defendant then shifted his position a
second time, which allowed C to slide out from under-
neath him and off the couch. She told the defendant
that she was expecting a phone call and proceeded to
walk toward the dog gate.
The defendant followed behind C to the dog gate.
When C reached the gate, she once again turned toward
the defendant because she was scared and did not want
her back to him. The defendant used his leg to pin her
against the gate. He then undid his waistband, exposed
his penis, grabbed C’s free hand, and moved it toward
his penis. C ripped her hand away and pushed the defen-
dant. As C attempted to climb over the dog gate, the
defendant tugged at her V-neck shirt and bra, exposing
C’s breasts. The defendant proceeded to kiss and lick
one of C’s exposed breasts and her neck. C was eventu-
ally able to get over the gate, after which she ran down-
stairs to her mother’s apartment and locked the door
behind her. As she was running down the stairs, she
heard the defendant yell, ‘‘fuck’’ in what sounded to
her to be a very aggravated tone.
While C was attempting to get away from the defen-
dant, she missed a call from her mother, who, at that
time, had left band practice and was on her way to the
defendant’s house in response to C’s Facebook mes-
sage. When she secured herself in her mother’s apart-
ment, C frantically called her mother, told her what the
defendant had done, and asked her to get her out of
the house. C also messaged ‘‘hurry’’ to her mother using
the Facebook messenger application.6 When K arrived,
C was exiting the house. K entered the entryway of the
house and yelled up the stairs, but she did not see or
hear the defendant. Her priority was getting C out of
the house.
K drove her daughter back to M’s house. On the way,
K pulled into a parking lot to call the police because
she did not want to call them in front of M and the
other bandmates. K and C then drove to M’s house
and entered his basement. During the drive and in the
basement, C was crying and trembling as she explained
the details of the situation to her mother.
Less than one-half hour later, state troopers arrived
at M’s house. The state troopers spoke to C and K
separately and took their written statements. C gave a
statement to Trooper Kyle Cormier explaining, in detail,
what had happened at the defendant’s house, including
that the defendant had licked and kissed her neck and
breast. Cormier photographed the area of C’s neck that
she identified and swabbed it for forensic evidence. He
also collected saliva from C’s mouth so that the lab
would have a ‘‘confirmatory sample’’ of C. Cormier did
not swab C’s breast, which the defendant had also
licked, because he did not want to further victimize
her. He also did not collect any clothing from C. C did
not want to go to the hospital and refused any medical
treatment.
After collecting evidence from C, Trooper Cormier
went to the defendant’s residence and took photographs
of several rooms in the home.7 Cormier observed sev-
eral items in the home that corroborated C’s descrip-
tion, including a certain item on the coffee table, the
couch in the living room, the dog gate, and the sculp-
tures and projector in the bedroom.
State troopers arrested the defendant the next day. In
September, 2017, an inspector collected a DNA sample
from the defendant and later submitted it to the state
forensic laboratory for comparative analysis. When the
laboratory analyzed the samples collected from C’s
neck, it did not detect the presence of amylase, which
is a protein found in human saliva. The negative result
indicated that amylase either was not present or was
present but was below a detectable level. When the
same samples from the neck were tested for DNA, how-
ever, the laboratory determined that they contained a
mixture of DNA profiles from C, the defendant, and
one unknown individual. The results showed that the
profiles detected in the sample were at least 100 billion
times more likely to occur if it originated from C, the
defendant, and one unknown individual than if it origi-
nated from C and two unknown individuals taken at
random.
The defendant was charged with unlawful restraint in
the second degree, sexual assault in the fourth degree,
attempt to commit sexual assault in the third degree,
and sexual assault in the third degree. A jury trial was
held in December, 2021, and, on December 15, 2021,
the jury found the defendant guilty on all charges. On
March 18, 2022, the trial court, Chaplin, J., imposed a
total effective sentence of ten years of imprisonment,
execution suspended after four years, followed by ten
years of probation. The defendant was ordered to regis-
ter as a sex offender for his lifetime. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
On appeal, the defendant first claims that the prosecutor
committed prosecutorial impropriety and deprived him
of a fair trial when she made certain improper state-
ments during closing arguments. Specifically, he com-
plains that during the state’s rebuttal closing argument,
the state discussed general defenses in criminal cases,
which suggested that he had a duty to present one of
those defenses. The defendant also contends that the
prosecutor’s use of the phrase ‘‘nuts and sluts’’ during
the state’s rebuttal closing argument was ‘‘highly, highly
inflammatory’’ and implied a burden of proof on the
part of the defense.8 We are not persuaded.
We begin with the relevant legal principles. ‘‘In ana-
lyzing claims of prosecutorial impropriety, we engage
in a two step analytical process. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of a constitutionally protected
right. . . . [W]hen a defendant raises on appeal a claim
that improper remarks by the prosecutor deprived the
defendant of his constitutional right to a fair trial, the
burden is on the defendant to show, not only that the
remarks were improper, but also that, considered in
light of the whole trial, the improprieties were so egre-
gious that they amounted to a denial of due process.’’
(Internal quotation marks omitted.) State v. Gary S.,
345 Conn. 387, 407, 285 A.3d 29 (2022).
‘‘It is well established that prosecutorial [impropriety]
of a constitutional magnitude can occur in the course
of closing arguments. . . . When making closing argu-
ments to the jury, [however, counsel] must be allowed a
generous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument. . . .
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.
. . . By reason of [her] office, [she] usually exercises
great influence [on] jurors. . . . While the privilege of
counsel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment [on], or to suggest
an inference from, facts not in evidence, or to present
matters [that] the jury ha[s] no right to consider.’’ (Inter-
nal quotation marks omitted.) State v. Courtney G., 339
Conn. 328, 341–42, 260 A.3d 1152 (2021).
The following additional facts are relevant to this
claim. On December 15, 2021, closing arguments took
place. After bringing the jury into the courtroom, the
court explained: ‘‘At this point now, we’re preparing to
hear closing argument from counsel. What will happen
is the state will go first. Then the defendant will argue
through his counsel. Then the state will have a chance
to make a rebuttal argument. Each side is given the
same amount of time for argument. It’s only the state
that breaks its argument into two parts because they
have the burden of proving the defendant guilty beyond
a reasonable doubt. The arguments of counsel are not
evidence. It is your recollection of the evidence that
controls.’’
The state then proceeded to its argument, laying out
its theory of the case, based on the evidence presented,
in addition to discussing the charges. The prosecutor
concluded by arguing, inter alia, that ‘‘when put together
what [C] said and you look at the evidence in terms of
the exhibits and whatnot, you will see that what she
has given you is a credible account, and you will see
by virtue of her testimony the elements are proven
beyond a reasonable doubt.’’
Defense counsel then began his summation. He
greeted the jury and stated that ‘‘[w]hat you just heard
from the state is a nice . . . CliffsNotes version of the
young female’s testimony.’’ Defense counsel further
stated: ‘‘But let me rehash what the actual testimony
was. So, this way everyone has a clear picture. She
testified this March 29th date was not the first time she
met my client. So, just to be clear, she was actually at
the house three weeks prior to this actual date. You’ve
heard [from the] state . . . here today that we have to
look at the [veracity], the truth of the testimony. So,
let’s address that. The young lady testified that the first
time she was staying overnight was on March 29, 2017.
However, you heard testimony from her mother that,
in fact, she stayed there the night before. So, right off
the bat she wasn’t being . . . truthful with you. If the
state’s going to ask that you believe her mother, and
her mother’s testified that, hey, she was here the night
before. [The defendant] didn’t know about it, but she
was here the night before, then we have a veracity issue
with this witness.’’ Defense counsel then went through
the defendant’s version of the timeline and the evidence.
Counsel concluded his summation by stating, inter alia,
‘‘[b]ut if you put your emotions aside, rely on your
intellect, all we have here is we have a witness who
was emotional, an actress, by the way, who lied about
being there the night before. Who gave you a timeline
and that timeline doesn’t add up to her story. She tells
you this guy made out on my neck, licked all over my
neck heavily. But the evidence doesn’t support that.
And we have a coin flip upon the DNA. So, based on
all of that, I ask you to find my client not guilty of all
charges.’’
The prosecutor then began her rebuttal closing argu-
ments by addressing some of defense counsel’s argu-
ments about the timeline of the events and the DNA
and enzyme tests that had been conducted. She then
made the following statements, which are at the heart
of the defendant’s claim on appeal: ‘‘So, usually in that
case there are in criminal cases basically four defenses.
It’s alibi, somebody else did it, I did [it] I was justified,
or I did it I was out of my mind. In sex cases, it’s
generally nuts and sluts is what they call it. Either the
victim has had other, you know, situations that you’re
not gonna believe that she wasn’t consenting or she’s
nuts. And the question is do you think [C] is nuts?
Because she’d have to be nuts to make all of this up.
There’s no reason for her to fabricate this, is there?
What does she gain out of this?’’ Defense counsel did
not object to these statements. The prosecutor then
made a few additional remarks to the jury and argued
that the state was confident that the jury would find that
the state had proved its case beyond a reasonable doubt.
A
The defendant first claims that the prosecutor improp-
erly discussed general defenses in criminal cases during
the state’s rebuttal argument. In his view, when the
prosecutor stated that there were ‘‘basically four
defenses’’ in criminal cases, ‘‘the state implied [that]
the defendant has a duty to present one of those
defenses, and thus to present a defense at all.’’ We
disagree.
It is well known that the state must prove beyond a
reasonable doubt all the essential elements of the
crimes with which a defendant is charged in order to
obtain a conviction; State v. Valinski, 254 Conn. 107,
120, 756 A.2d 1250 (2000); and that prosecutors are not
permitted to make statements that ‘‘distort the govern-
ment’s burden of proof . . . because such statements
are likely to improperly mislead the jury.’’ (Internal
quotation marks omitted.) State v. Courtney G., supra,
339 Conn. 357. A prosecutor may cross the line by
arguing to the jury that the defendant is obligated to
present evidence of his innocence. See id., 360 (‘‘the
prosecutor committed an impropriety when she
informed the jury that [the victim’s] testimony was
‘unchallenged and uncontroverted’ ’’).
But that is not what happened here. The prosecutor’s
statement that there are ‘‘basically four defenses’’ in
criminal cases, in context, was a brief preface to the
state’s rebuttal argument that C did not have a motive
to lie. Indeed, the statement, in context, was used simply
to rebut defense counsel’s asserted defense that C was
lying about the incident and that the alleged incident
never occurred.9 Our courts have held that ‘‘the state
may argue that a witness has no motive to lie.’’ State
v. Warholic, 278 Conn. 354, 365, 897 A.2d 569 (2006);
see also State v. Ancona, 270 Conn. 568, 607, 854 A.2d
718 (2004) (‘‘[i]t is permissible for a prosecutor to
explain that a witness either has or does not have a
motive to lie’’), cert. denied, 543 U.S. 1055, 125 S. Ct.
921, 160 L. Ed. 2d 780 (2005). At no point during the
rebuttal argument did the state suggest that the defen-
dant had a duty to present one of those defenses or a
defense at all. See State v. Frasier, 169 Conn. App.
500, 519, 150 A.3d 1176 (2016) (prosecutor’s statements
during closing arguments about what defense theories
defendant might present during his closing did not dis-
tort state’s burden of proof), cert. denied, 324 Conn.
912, 153 A.3d 653 (2017). In fact, on multiple occasions
during closing arguments, the prosecutor reminded the
jury that, before it could find the defendant guilty, it
must find that the evidence presented proved the defen-
dant’s guilt beyond a reasonable doubt. Accordingly,
we conclude that the statement was not improper.
B
The defendant next assails the prosecutor’s use of
the phrase ‘‘nuts and sluts’’ during her rebuttal argu-
ment. He argues that the statement was ‘‘highly, highly
inflammatory’’ and that the statement ‘‘again implied a
burden of proof on the part of the defense.’’ He argues
that the statement affected the fairness of the entire
trial. We are not persuaded.
In context, it is clear that the prosecutor used the
phrase ‘‘nuts and sluts’’ to advance the state’s rebuttal
argument that C did not have a motive to lie. Specifi-
cally, the prosecutor stated: ‘‘In sex cases, it’s generally
nuts and sluts is what they call it. Either the victim has
had other, you know, situations that you’re not gonna
believe that she wasn’t consenting or she’s nuts. And
the question is do you think [C] is nuts? Because she’d
have to be nuts to make all of this up. There’s no reason
for her to fabricate this, is there? What does she gain
out of this?’’
These statements were clearly used to rebut the argu-
ments that defense counsel had just made during his
summation in which he suggested that C was lying about
the incident and that the alleged incident never
occurred. See State v. Michael T., 338 Conn. 705, 728,
259 A.3d 617 (2021) (‘‘[a]lthough we generally disap-
prove of remarks suggesting to the jury that it must
conclude that a witness is deliberately lying and, by
implication, evil, before it may question the witness’
credibility, the prosecutor here was simply attempting
to rebut the defendant’s claim to that effect’’). As the
state’s advocate, a prosecutor is permitted to argue the
state’s case forcefully, which includes arguments about
the credibility of witnesses, ‘‘as long as her assertions
are based on evidence presented at trial and reasonable
inferences that jurors might draw therefrom.’’ (Internal
quotation marks omitted.) State v. O’Brien-Veader, 318
Conn. 514, 547, 122 A.3d 555 (2015). ‘‘[I]t does not follow
. . . that every use of rhetorical language or device [by
the prosecutor] is improper. . . . The occasional use
of rhetorical devices is simply fair argument.’’ (Internal
quotation marks omitted.) State v. Michael T., supra,
723–24. Despite the defendant’s arguments to the con-
trary, we are not persuaded that the statement at issue
implied any burden of proof on the part of the defense.
We also are not persuaded that this statement, in
context, was ‘‘highly, highly inflammatory’’ to divert the
jurors’ attention from their duty to decide the case
based on the evidence. On that front, our courts have
explained, ‘‘[a] prosecutor may not appeal to the emo-
tions, passions and prejudices of the jurors. . . . We
have stated that such appeals should be avoided
because they have the effect of diverting the jur[ors’]
attention from their duty to decide the case on the
evidence. . . . When the prosecutor appeals to emo-
tions, he invites the jur[ors] to decide the case, not
according to a rational appraisal of the evidence, but
on the basis of powerful and irrelevant factors which
are likely to skew that appraisal.’’ (Internal quotation
marks omitted.) State v. Santiago, 143 Conn. App. 26,
40, 66 A.3d 520 (2013). ‘‘An improper appeal to the
jurors’ emotions can take the form of a personal attack
on the defendant’s character . . . or a plea for sympa-
thy for the victim or her family.’’ (Citation omitted.)
State v. Long, 293 Conn. 31, 59, 975 A.2d 660 (2009).
The defendant contends that the state’s argument was
highly inflammatory because ‘‘[s]ociety, particularly in
the past few years after the MeToo movement, has
developed significant sensitivity toward allegations of
sexual abuse and complainants in those cases.’’ He
argues that the prosecutor’s statement is ‘‘likely to
inflame the emotional reactions of the jurors and cause
them to reflexively side with the person being unfairly
accused of being ‘nuts’ or a ‘slut.’ ’’
As the state points out, however, the defendant’s
argument ‘‘presumes that the jury, notwithstanding any
argument from the state, is already basing its verdict
on information outside the record for which he provides
no supporting authority and is, in any event, improper.’’
The state also correctly notes that, during voir dire, the
parties had the opportunity to question jurors about
any knowledge or experience they had with sexual
assault or sexual harassment, presumably for the pur-
pose of identifying those venirepersons who were par-
ticularly sensitive to issues of sexual abuse.
Although the defendant contends that the prosecu-
tor’s statement was ‘‘likely to inflame the emotional
reactions of the jurors,’’ the statement was not used as
a personal attack on the defendant’s character or as a
plea for sympathy for C or her family, which are the
types of factors our courts often consider when
determining whether a prosecutor improperly appealed
to the emotions of the jurors. See State v. Michael T.,
supra, 338 Conn. 725 (‘‘[a]n improper appeal to the
jurors’ emotions can take the form of a personal attack
on the defendant’s character . . . or a plea for sympa-
thy for the victim or her family’’ (internal quotation
marks omitted)). Rather, the prosecutor’s statement, in
context, invited the jury to assess C’s credibility on the
basis of the relevant evidence in the case, particularly
the absence of any motive on her part to fabricate the
allegations. Although we do not condone the statement
used by the prosecutor and do not foreclose the possi-
bility that the use of such language in front of a jury
conceivably could constitute prosecutorial impropriety
in a different context, we do not believe that its use in
this particular case diverted the jury’s attention from
its duty to decide the case on the evidence that was
before it. Accordingly, we conclude that the statement
did not arise to prosecutorial impropriety in this case.
Moreover, even if we were to assume for the sake
of argument that the statement was improper, we still
would not conclude that it deprived the defendant of
a fair trial. See State v. Gary S., supra, 345 Conn. 407
(‘‘the burden is on the defendant to show, not only that
the remarks were improper, but also that, considered
in light of the whole trial, the improprieties were so
egregious that they amounted to a denial of due pro-
cess’’ (internal quotation marks omitted)). In determin-
ing whether an impropriety deprived the defendant of
a fair trial, this court considers whether ‘‘(1) the impro-
priety was invited by the defense, (2) the impropriety
was severe, (3) the impropriety was frequent, (4) the
impropriety was central to a critical issue in the case,
(5) the impropriety was cured or ameliorated by a spe-
cific jury charge, and (6) the state’s case against the
defendant was weak due to a lack of physical evidence.’’
State v. Fauci, 282 Conn. 23, 51, 917 A.2d 978 (2007),
citing State v. Williams, 204 Conn. 523, 540, 529 A.2d
653 (1987).
First, the prosecutor’s remarks were not frequent or
severe. During the relatively lengthy closing argument,
the prosecutor used the phrase ‘‘nuts and sluts’’ only
once, followed by three sentences that each contained
the word ‘‘nuts’’ a single time. These remarks occurred
in only four sentences of the hundreds of sentences
spoken by the prosecutor to the jury during closing
arguments. Additionally, as to the severity, defense
counsel did not object to the prosecutor’s statements
when they were spoken, request curative instructions,
or move for a mistrial. See State v. Warholic, supra,
278 Conn. 398 (‘‘we take into consideration whether
defense counsel object[ed] to any of the improper
remarks, request[ed] curative instructions, or move[d]
for a mistrial’’ (internal quotation marks omitted)). And
even if the remarks could be interpreted as implying a
burden of proof on the part of the defense—a con-
tention that we reject—the remarks were counterbal-
anced by the court’s initial remarks to the jury
explaining that the state had an opportunity for a rebut-
tal argument because the state has ‘‘the burden of prov-
ing the defendant guilty beyond a reasonable doubt.’’
The remarks also were counterbalanced by the prosecu-
tor, who reminded the jury multiple times during her
argument that, before it could find the defendant guilty,
it must find that the evidence presented proved the
defendant’s guilt beyond a reasonable doubt, and by
the court, whose instructions to the jury made clear
that ‘‘[t]he arguments of counsel are not evidence’’ and
that ‘‘[t]he state has the burden of proving that the
defendant is guilty beyond a reasonable doubt of the
crime with which he is charged. The defendant does
not have to prove his innocence. This means that the
state must prove beyond a reasonable doubt each and
every element necessary to constitute the crime charged.’’

We next consider whether the prosecutor’s state-
ments were central to critical issues in the case and
whether the improprieties were invited by the defense.
Although the credibility of C was a central issue and
the remarks had some bearing on credibility, the defen-
dant’s reliance on centrality in support of his due pro-
cess argument is counterbalanced by the fact that the
defense, at least in part, invited the remarks by calling
into question the veracity of C’s testimony, arguing,
inter alia, that the alleged sexual assault did not occur.
See footnote 9 of this opinion; see also State v. Gary
S., supra, 345 Conn. 419 (‘‘the defendant’s reliance on
centrality is counterbalanced by the fact that the defense,
at least in part, invited the remarks’’).
As to the strength of the state’s case, we agree with
the state that it presented strong direct and circumstan-
tial evidence against the defendant. As the state notes,
unlike in some sexual assault cases in which the state’s
case rests entirely on the victim’s credibility, C’s testi-
mony in this case was corroborated by physical evi-
dence, including the presence of the defendant’s DNA
on her neck and a contemporaneous Facebook message
that C sent to her mother pleading for help. The state
also presented testimony from Trooper Cormier about
his observations and photographs that corroborated C’s
account of where each assault occurred in the defen-
dant’s house. Although we would not necessarily
describe the evidence as overwhelming, the evidence
was sufficiently strong not to have been overshadowed
by the alleged improper remarks. See State v. Courtney
G., supra, 339 Conn. 365–66 (‘‘[W]e have never stated
that the state’s evidence must have been overwhelming
in order to support a conclusion that prosecutorial
[impropriety] did not deprive the defendant of a fair
trial. . . . [T]he state’s case was not so weak as to
be overshadowed by the prosecutorial improprieties.’’
(Citation omitted; internal quotation marks omitted.)).
On this record, we are confident that the defendant
was not deprived of his due process right to a fair trial.
II
The defendant next contends that his sentences stem-
ming from his conviction of third degree sexual assault,
in violation of § 53a-72a (a) (1), and fourth degree sexual
assault, in violation of § 53a-73a (a) (2), violated the
double jeopardy clause of the fifth amendment because
(1) the ‘‘allegations that formed the basis of both
charges stemmed from the same solitary event
occurring on one date during one alleged interaction
between the [defendant] and the complainant’’ and (2)
the two offenses are the same under the test enunciated
in Blockburger v. United States, 284 U.S. 299, 304, 52
S. Ct. 180, 76 L. Ed. 306 (1932). The defendant recognizes
that his claim was not preserved in the trial court and,
accordingly, seeks 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).10 Although we agree with the defendant that the
record is adequate for review and that his claim is of
constitutional magnitude, we disagree with him that he
can prevail under Golding’s third prong because we
conclude that there was no constitutional violation. We
address his arguments in turn.
The fifth amendment to the United States constitution
provides in relevant part: ‘‘No person shall . . . be sub-
ject for the same offense to be twice put in jeopardy
of life or limb. . . .’’ U.S. Const., amend. V. The double
jeopardy clause ‘‘prohibits not only multiple trials for
the same offense, but also multiple punishments for
the same offense in a single trial.’’ (Internal quotation
marks omitted.) State v. Porter, 328 Conn. 648, 655,
182 A.3d 625 (2018). The double jeopardy clause is
applicable to the states through the fourteenth amend-
ment to the United States constitution. See Benton v.
Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed.
2d 707 (1969).
When a defendant is charged with the violation of
two distinct statutes in a single criminal proceeding
arising from a single underlying set of events, our courts
have generally employed a two step analysis. ‘‘First, the
charges must arise out of the same act or transaction.
Second, it must be determined whether the charged
crimes are the same offense. Multiple punishments are
forbidden only if both conditions are met.’’ (Internal
quotation marks omitted.) State v. Brown, 299 Conn.
640, 652, 11 A.3d 663 (2011). If we determine that the
charges do not arise from the same act or transaction,
we need not proceed to the second step of the analysis.
See State v. Schovanec, 326 Conn. 310, 329, 163 A.3d
581 (2017).
We start at step one. In determining whether the
charges arise out of the same act or transaction, ‘‘it is
not uncommon that we look to the evidence at trial
and to the state’s theory of the case . . . in addition
to the information against the defendant, as amplified
by the bill of particulars.’’ (Citation omitted; internal
quotation marks omitted.) State v. Porter, supra, 328
Conn. 662. ‘‘When determining whether two charges
arose from the same act or transaction, our Supreme
Court has asked whether a jury reasonably could have
found a separate factual basis for each offense
charged.’’ (Internal quotation marks omitted.) State v.
Jarmon, 195 Conn. App. 262, 284, 224 A.3d 163, cert.
denied, 334 Conn. 925, 223 A.3d 379 (2020).
In the long form information, the state charged the
defendant in count two with sexual assault in the fourth
degree on the basis that ‘‘on or about March 29, 2017,
at or near [a certain residence on] Reed Road, Tolland,
Connecticut, [the defendant] subjected another person
([C]) to sexual contact without her consent.’’ Count
four, which charged the defendant with sexual assault
in the third degree, alleged that ‘‘on or about March 29,
2017, at or near [a certain residence on] Reed Road,
Tolland, Connecticut, [the defendant] compelled
another person ([C]) to submit to sexual contact by
the use of force against her, to wit: using his superior
physical strength, he pulled her shirt and bra down
and licked her breast for his own sexual gratification.’’
Although count four details the specific act that under-
lies the charge, count two does not. There was no bill
of particulars to amplify the information. See State v.
Goldson, 178 Conn. 422, 424, 423 A.2d 114 (1979) (‘‘we
. . . refer to the language of the information against
the defendant, as amplified by the bill of particulars’’).
Because the long form information does not resolve
the question before us, we look to the evidence pre-
sented at trial and to the state’s theory of the case to
determine whether each count arose from a separate
act or transaction. See State v. Porter, supra, 328 Conn.
658 n.8. The defendant argues that the evidence shows
that the charges arose out of the same act or transaction
because ‘‘all of the conduct occurred at the same house
in Tolland’’ and took place in ‘‘one room/hallway area.’’
He argues that ‘‘[t]he complainant’s testimony makes
clear the criminal conduct was all one continuous
course of action,’’ stating: ‘‘The [defendant] began kiss-
ing her on the couch, she got up and he allegedly pulled
her hand towards his penis, and then he allegedly pulled
her top down. . . . When she left the same room as
him, the conduct ended. . . . There was no intervening
event during the conduct, and when there was an
intervening event (the complainant leaving the room),
the course of action ceased. The conduct also had the
same motive, that being alleged sexual gratification.
The court can also note that the conduct took place
over a very condensed time period. The conduct began
at or around 10:51 p.m., when the complainant was
allegedly on the couch texting her mother. Only after
10:51 p.m. did the [defendant’s] alleged forcible moving
of the complainant’s hand (the third degree offense)
and touching of the complainant’s breast (the fourth
degree offense) begin. That conduct was ended before
11:02 p.m. when the complainant was out of the room
and missed the phone call. Therefore, the criminal
course of conduct in this case took place over approxi-
mately ten minutes or less.’’ (Citations omitted; empha-
sis in original.) The defendant argues that this militates
heavily toward concluding that the first prong is met.
The state counters by arguing that ‘‘[t]he information,
evidence presented at trial, and the state’s clearly
expressed theory of the case, establish that each crime
arose from separate acts committed at separate times,
in separate locations, and in separate ways.’’ In support
of this argument, the state argues that ‘‘C testified that
the defendant, without her consent, put her on the sofa,
laid on top of her, and rubbed her genitalia and breast
over her clothing. . . . C was unable to move under-
neath the defendant because of the weight from the
defendant’s body and only freed herself after the defen-
dant shifted positions.’’ (Citation omitted.) In the state’s
view, the jury reasonably could have concluded from
C’s testimony and the photographs admitted into evi-
dence that this incident, the fourth degree sexual
assault, began and ended on the sofa in the living room
of the defendant’s home.
The state further argues that, ‘‘[c]onversely, the third
degree sexual assault occurred after C freed herself
from the sofa and attempted to go back downstairs to
her mother’s apartment. . . . The defendant pinned
her against the gate leading to the basement stairs as
she was trying to leave, at which point he pulled down
her shirt and bra and licked her breast and neck. . . .
C’s testimony and the photographs taken inside the
home establish that the two assaults took place in sepa-
rate areas of the house . . . and they were separated
by C’s attempt to leave the area and retreat to her
mother’s apartment.’’ (Citations omitted.)
On the basis of our review of the evidence presented
at trial, we agree with the state that the offenses did
not arise from the same act or transaction. In particular,
as to the fourth degree sexual assault charge, the evi-
dence shows that it began and ended on the living
room couch. Specifically, there was a clear end to that
incident—or act—when C slid out from underneath
the defendant, stood up, and proceeded to walk back
toward the dog gate, as she explained to the defendant
that she was expecting a phone call.
The separate act—the basis of the third degree sexual
assault charge—occurred when the defendant subse-
quently approached C at the stairs leading down to her
mother’s apartment and pulled down C’s V-neck shirt
and bra, exposing her breast, and licking her breast
and neck.
The state’s theory of the case at trial buttresses the
conclusion that the charges stem from these separate
acts or transactions. Indeed, during closing arguments,
the prosecutor stated in relevant part: ‘‘The next crime
is sexual assault in the fourth degree. And that takes
place, again, on the couch. So, he’s on top of her on
the couch. Again, there’s a size differential between the
two of them. And the sexual contact here is the touching
of her what we call intimate parts, her genital area. So,
her genital area and her breast area. He’s not touching
them—this isn’t a game of tag. This is for him to satisfy
himself. He’s fondling her over the clothes.’’ As to the
sexual assault in the third degree charge, the prosecutor
stated in relevant part: ‘‘And so, the fourth count is,
again, a sex assault in the third. And with the fourth
count is where he does complete it because he does
pull her shirt down to lick her breast. . . . She’s trying
to get away from him. That he did it intentionally. This
wasn’t a joke. And that he used force, his physical
superior strength.’’
Contrary to the defendant’s contentions, the fact that
the state charged the defendant with multiple offenses
that occurred at the same residence in a relatively short
time span does not necessarily mean that his convic-
tions arose from the same criminal act or transaction.
See, e.g., State v. Scott, 270 Conn. 92, 100, 851 A.2d 291
(2004) (concluding that sexual assault convictions were
permissible, ‘‘irrespective of the brief period of time
separating them’’), cert. denied, 544 U.S. 987, 125 S. Ct.
1861, 161 L. Ed. 2d 746 (2005). Our courts have made
clear that ‘‘[i]t is not dispositive in a double jeopardy
analysis that multiple offenses were committed in a
short time span and during a course of conduct that
victimized a single person. Instead, the relevant inquiry
focuses on whether each offense of which the defendant
has been convicted and punished properly is based upon
distinct criminal acts or transactions that occurred
within that course of conduct.’’ State v. Urbanowski,
163 Conn. App. 377, 393, 136 A.3d 236 (2016), aff’d, 327
Conn. 169, 172 A.3d 201 (2017); see id., 393–94 (collect-
ing cases).
The defendant further suggests that, because both
crimes shared the same motive (or intent) of sexual
gratification, this fact counsels in favor of a conclusion
that the convictions and resulting punishments arose
out of the same act or transaction. But this contention
lacks merit. As this court has explained, ‘‘[t]he test is
not whether the criminal intent is one and the same
and inspiring the whole transaction, but whether sepa-
rate acts have been committed with the requisite crimi-
nal intent and are such as are made punishable by
the [statutes].’’ (Emphasis in original; internal quotation
marks omitted.) State v. Bennett, 187 Conn. App. 847,
853, 204 A.3d 49, cert. denied, 331 Conn. 924, 206 A.3d
765 (2019).
For the reasons previously explained, we are per-
suaded that the offenses in question did not arise from
the same act or transaction and that, as a result, the
defendant’s convictions did not violate double jeopardy.
As such, the defendant has failed to demonstrate that
a constitutional violation exists under the third prong
of Golding.11
The judgment is affirmed.
In this opinion the other judges concurred.
1
K has two other children, a daughter approximately two years older than
C and a son who was then two years old. K’s son was spending the night
at his father’s house the evening of March 29, 2017.
2
K met with her band on Wednesdays to play various instruments and
make music.
3
C worked as a character actress for a local business, in which she would
dress up as various Walt Disney princess characters and appear at children’s
birthday parties.
4
C testified that she previously had seen the defendant once while she
visited her mother, but she was not familiar with him.
5
The dog gate measures approximately 28.5 inches high and is positioned
at the top edge of the staircase. The first step measures approximately eight
inches below the dog gate.
6
Out of anger, K sent messages to the defendant after hearing C’s account
of what occurred. The messages to the defendant stated, inter alia: ‘‘Jail
Asshole’’; ‘‘She’s a kid you fuck’’; ‘‘Here they come.’’
7
After K picked up C from the house but before the state troopers arrived
there to speak to the defendant, K sent an additional message to the defen-
dant. Still angry, she threatened a lawsuit against him because he purportedly
locked her and her two year old son out of the home after she failed to pay
rent earlier that winter, claiming that he owed her three months of rent
because of the lockout.
8
Although defense counsel did not object to the challenged remarks,
‘‘under settled law, a defendant who fails to preserve claims of prosecutorial
[impropriety] need not seek to prevail under the specific requirements of
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), and, similarly,
it is unnecessary for a reviewing court to apply the four-pronged Golding
test.’’ (Internal quotation marks omitted.) State v. Ortiz, 343 Conn. 566, 579,
275 A.3d 578 (2022).
9
During defense counsel’s closing argument, defense counsel argued, inter
alia, that ‘‘[t]here’s absolutely no physical evidence that my client touched
her at all.’’ He further argued that ‘‘[s]he tells you this guy made out on my
neck, licked all over my neck heavily. But the evidence doesn’t support that.’’
10
‘‘[A] defendant can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional
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 demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40; see In re Yasiel R., supra, 317 Conn. 781
(modifying third prong of Golding).
11
‘‘Because the defendant failed to show that the two charges arose out
of the same act or transaction, there is no need to proceed to step two and
perform a Blockburger analysis. See State v. Porter, supra, 328 Conn. 663
n.11.’’ State v. Jarmon, supra, 195 Conn. App. 286.