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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 consistent 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 consented 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 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, 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; furthermore, 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 challenge 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 suggested 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) § 53a73a (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 bedroom 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 defendant ‘‘dry humped’’ B with an erect penis. On two occasions, 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 daughter of another cousin. E was also related to the defendant 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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State v. Tahir L.

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 allegations, 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 twentyfive years of probation. This appeal followed. Additional

facts and procedural history will be set forth as necessary.

I

The defendant first claims that his right to due process 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 relevant 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 preliminary instructions to the jury. In its preliminary instructions 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 contact’’ 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 evidence, the court narrowed its final instructions on sexual 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 presentation 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 demonstrate harmlessness of the alleged constitutional violation 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 specification 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 conclude 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 preliminary 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 defendant. When a trial court provides preliminary instructions, 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 violating, 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 accordance with the model jury instructions pertaining to

preliminary instructions.6

Here, the court’s preliminary instructions on the elements of each offense included instructions regarding

the state’s burden to prove each element beyond a reasonable 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 preliminary instructions and final instructions. In its preliminary 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.>’’ Connecticut 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 reasonable 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 principles 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). Following 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 constituted plain error. In evaluating plain error claims, ‘‘we

must determine whether the trial court in fact committed 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 omitted.) Id.

Here, the defendant has failed to demonstrate that

the court committed any error in its preliminary instructions, never mind one that was so harmful that a failure

to reverse the judgments would result in manifest injustice. 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 preliminary instructions is unavailing.

II

Next, the defendant claims that, in its final instructions 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 sexual assault in the fourth degree.

The defendant acknowledges that he failed to preserve 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 counsel affirmatively accepts the instructions proposed or

given, the defendant may be deemed to have knowledge

of any potential flaws therein and to have waived implicitly 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 acknowledged 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 conference, failed to submit written request to change challenged 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 defendant 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 omitted.) 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 instructions 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, 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. 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 instruction 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 orchestrated 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 disclosure 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 cursorily asserts that the court’s alleged instructional error

was obvious and ‘‘denying relief would result in manifest 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 committed 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 defendant’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 counsel 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 identification, 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 counsel’s questions that they were introduced only for

impeachment purposes and not as substantive evidence.

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’ testimony, not as substantive evidence. In other words, consider 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 testimony, 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, however, 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 substantive 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 ‘‘statements’’ 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 defendant assented to the instruction by expressing satisfaction 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 Golding 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 established that ‘‘[a]n exhibit offered and received as a full

exhibit is in the case for all purposes.’’ (Internal quotation 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 operative 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); General 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 elements 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 withdrawing 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] threaten[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 providing 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 ‘intentionally’ 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 statute defining this offense reads in pertinent part as follows: 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 erroneous 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 decision 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 victims 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 substantively 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) § 53a73a (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 photograph being admitted as a full exhibit.17 The defendant

concedes that his evidentiary claim regarding the photographs 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 demonstrated 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 photographs would have been inadmissible if objected to at

trial, the defendant cites no authority for the proposition that the trial court has an affirmative obligation

to preclude the admission of certain evidence in the

absence of an objection. Moreover, this court consistently 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 photographs 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 fairness and integrity of and public confidence in the judicial 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 preserved. 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 counsel 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 examination, 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 prosecutor’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 defendant 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 assuming 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 questioning 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 inappropriate. 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 prosecutor.’’ 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 cautioned 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 circumstances 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 crossexamination.23

Additionally, after the court sustained defense counsel’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 question 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 womanhood 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 prosecutor’s argument was that the defendant’s abuse caused

heightened trauma for the victim when she was diagnosed 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 defendant’s abuse and the victim’s breast cancer, and we

conclude that the jury could not have reasonably interpreted 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 selecting among multiple, plausible interpretations of the language, this court will assign the remark the less damaging, 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.