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*********************************************** 
STATE OF CONNECTICUT v. JERRELL R.*

(AC 40155)

DiPentima, C. J., and Lavine and Harper, Js.

Syllabus

Convicted of the crime of unlawful restraint in the second degree, and of

two counts of the crime of risk of injury to a child in violation of

statute (§ 53-21 [a] [1] and [2]), the defendant appealed to this court.

The defendant’s conviction stemmed from an incident involving the

minor victim, who was his daughter. On appeal, the defendant claimed

that his conviction of two counts of risk of injury to a child violated

the double jeopardy clause and that he was denied a fair trial due

to certain instances of prosecutorial impropriety that occurred during

closing and rebuttal arguments. Held:

1. The defendant could not prevail on his unpreserved claim that his conviction under subdivisions (1) and (2) of § 53-21 (a) violated the constitutional prohibition against double jeopardy, as he failed to establish that

the charged offenses arose out of the same act or transaction: the

evidence, charging documents, and the state’s theory of the case

reflected that the defendant’s conduct was separable into distinct parts,

each punishable as a separate offense, as the jury reasonably could have

credited the testimony of the victim and her mother that the defendant

waited until the victim’s mother was in the shower, and then pulled

down the victim’s pants, pinned her against the wall and forced her

head toward his exposed penis while instructing her to suck it, which

supported the defendant’s conviction of risk of injury to a child under

§ 53-21 (a) (1), and the jury reasonably could have credited the victim’s

statements in her forensic interview that the defendant touched her

vagina while also discrediting the defendant’s testimony that the touching was accidental, which supported his conviction of risk of injury to

a child under § 53-21 (a) (2); moreover, the defendant’s reliance on

certain case law in support of his claim that this court must conclude

that the crimes arose out of the same transaction because it was unclear

what conduct the jury relied on to convict him was misplaced, as the

case law relied on by the defendant was distinguishable from the present

case in that the reviewing court looked only to the charging documents

and did not consider, as instructed by more recent case law, the evidence

presented at trial or the state’s theory of the case to discern what the

jury reasonably could have found to support the conviction.

2. The defendant’s claim that he was deprived of a fair trial as a result of

certain instances of prosecutorial impropriety during closing and rebuttal arguments was unavailing:

a. The prosecutor did not misstate the law with respect to subdivision

(2) of § 53-21 (a) during closing argument by referring to evidence

relating to the risk of injury charge under § 53-21 (a) (1); the prosecutor

aptly explained the difference between the two charges and correctly

stated that the sexual contact itself must impair the health or morals

of a child to support a conviction under § 53-21 (a) (2), the prosecutor

was not required in presenting closing argument to neatly arrange the

evidence introduced at trial according to the charge it supported, and

the defendant failed to object to the remarks, which suggested that he

did not view them as improper at the time they were made.

b. The prosecutor did not, during rebuttal argument, improperly offer

her personal opinion regarding the credibility of the victim’s sister,

who had testified to the defendant’s prior acts of sexual misconduct

committed on her while she was sleeping; the prosecutor’s challenged

remark was based on the evidence presented at trial and was a proper

request for the jurors to use their common sense to draw reasonable

inferences from the evidence to support the theory that the defendant

intentionally touched the victim’s intimate parts in a similarly sexual

manner, the prosecutor’s use of the phrase ‘‘in my opinion’’ in this

context did not raise the concern of improper unsworn testimony, and

the defendant did not object to the remarks at the time they were made.

Argued October 9, 2018–officially released January 29, 2019
Procedural History

Substitute information charging the defendant with

the crimes of sexual assault in the first degree and

unlawful restraint in the second degree, and with two

counts of the crime of risk of injury to a child, brought

to the Superior Court in the judicial district of Fairfield

and tried to the jury before Pavia, J.; verdict and judgment of guilty of unlawful restraint in the second degree

and risk of injury to a child, from which the defendant

appealed to this court. Affirmed.

Matthew C. Eagan, assigned counsel, with whom

was Emily Graner Sexton, assigned counsel, for the

appellant (defendant).

Brett R. Aiello, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga,

state’s attorney, and Colleen P. Zingaro, assistant

state’s attorney, for the appellee (state).
Opinion

HARPER, J. The defendant, Jerrell R., appeals from

the judgment of conviction, rendered following a jury

trial, of risk of injury to a child in violation of General

Statutes § 53-21 (a) (1), risk of injury to a child in violation of § 53-21 (a) (2), and unlawful restraint in the

second degree in violation of General Statutes § 53a96 (a). On appeal, the defendant claims that (1) his

conviction of both risk of injury to a child charges

violate his constitutional protection against double

jeopardy and (2) the prosecutor made improper

remarks to the jury during closing and rebuttal arguments that deprived him of his due process right to a

fair trial. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to this

appeal. The victim, the victim’s mother, and the victim’s

two siblings lived on the first floor of a six family home.

The defendant was the father of both the victim, who

was six years old, and the victim’s sister. On the evening

of March 7, 2015, the defendant sent text messages to

the victim’s mother, asking if he could come to her

home. The victim’s mother acquiesced, and the defendant arrived twenty minutes later. After watching television and conversing with the defendant and the victim

in the bedroom of the victim’s mother, the victim’s

mother left the room to shower.

After approximately eight minutes, the victim’s

mother heard the victim screaming. At first, the victim’s

mother did not think anything of the screaming because

she believed that the defendant and victim were just

playing. After realizing that the victim was calling for

help, the victim’s mother ran out of the bathroom and

toward her bedroom, where the door was partially shut.

Upon opening the door, the victim’s mother witnessed

the defendant holding the victim by the face and pinning

her against the wall while her pants were halfway down.

After the victim’s mother returned to the bedroom, the

defendant went into the kitchen, got on his knees, and

started crying and pulling on his hair. At that point, the

defendant left the home after the victim’s mother told

him to leave. The victim later revealed in a forensic

interview that while her mother was in the shower, the

defendant had removed her pants, touched her vagina,

and forced her head toward his exposed penis.

After the defendant left the home, the victim

described her encounter with the defendant to her

mother, who then tried to reach the defendant via phone

in an attempt to have him come back to the house.

After he stopped answering text messages, the victim’s

mother contacted the police, who subsequently interviewed the victim at her home. The victim’s mother

again urged the defendant to come back to the house,

but he refused once he came close to the home and
noticed police cars parked outside. The victim subsequently was transported to the hospital, accompanied

by her mother and the responding police officers. In

an attempt to get the defendant to come to the hospital,

the victim’s mother sent a text message to the defendant

saying that the victim had suffered an asthma attack

and was going to the hospital.

The defendant later arrived at the hospital, where he

spoke with police officers after waiving his Miranda1

rights. During questioning, the defendant claimed to be

concerned that other men were touching his daughter

inappropriately, and he admitted that he might have

touched the victim’s vagina. Additionally, the defendant

later conceded in an interview with a social worker

from the Department of Children and Families that he

restrained the victim and may have touched her vagina

by accident.

The state originally filed a seven count information

after the victim’s two siblings also alleged that the

defendant had inappropriate sexual contact with them.

After one of the victim’s siblings declined to testify at

trial, the state filed an amended information, charging

the defendant with sexual assault in the first degree in

violation of General Statutes § 53a-70 (a) (2), risk of

injury to a child in violation of § 53-21 (a) (1), risk of

injury to a child in violation of § 53-21 (a) (2), and

unlawful restraint in the second degree in violation of

§ 53a-96 (a). All of these charges related to the incident

with the victim.

At trial, the jury found the defendant not guilty of

sexual assault in the first degree and guilty of unlawful

restraint and both counts of risk of injury to a child.

The court subsequently sentenced the defendant to a

total effective sentence of eighteen years imprisonment,

execution suspended after eight years, followed by

twenty-five years of probation. This appeal followed.

Additional facts will be set forth as necessary.

I

First, the defendant claims that his conviction of risk

of injury to a child under both § 53-21 (a) (1)2 and

(2)3 violates his constitutional protection against double

jeopardy because the offenses arose from the same

transaction and, pursuant to Blockberger v. United

States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306

(1932), both offenses required proof of substantively

identical elements. We disagree.

As a preliminary matter, the defendant acknowledges

that he failed to raise the present claim before the trial

court. The defendant argues, however, that his unpreserved claim nonetheless is reviewable 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). Under Golding, ‘‘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. In the absence of

any one of these conditions, the defendant’s claim will

fail.’’ (Emphasis in original; footnote omitted.) State

v. Golding, supra, 239–40. ‘‘The first two steps in the

Golding analysis address the reviewability of the claim,

while the last two steps involve the merits of the claim.’’

(Internal quotation marks omitted.) State v. Britton,

283 Conn. 598, 615, 929 A.2d 312 (2007).

The claim is reviewable pursuant to Golding because

the record is adequate for review and the claim is of

constitutional magnitude. See State v. Urbanowski, 163

Conn. App. 377, 386, 136 A.3d 236 (2016), aff’d, 327

Conn. 169, 172 A.3d 201 (2017). Moreover, the defendant

claims that he has received duplicative punishments

for the same offense in a single trial. ‘‘A defendant may

obtain review of a double jeopardy claim, even if it is

unpreserved, if he has received two punishments for

two crimes, which he claims were one crime, arising

from the same transaction and prosecuted at one trial

. . . .’’ (Internal quotation marks omitted.) Id., 386–87.

Because the defendant’s claim is reviewable, we next

address its merits.

We first set forth the applicable standard of review

and relevant legal principles that guide our analysis.

‘‘A defendant’s double jeopardy challenge presents a

question of law over which we have plenary review.

. . . The double jeopardy clause of the fifth amendment

to the United States constitution provides: [N]or shall

any person be subject for the same offense to be twice

put in jeopardy of life or limb. The double jeopardy

clause is applicable to the states through the due process clause of the fourteenth amendment. . . . This

constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments

for the same offense in a single trial. . . .

‘‘Double jeopardy analysis in the context of a single

trial is a two-step process. 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.’’ (Citations omitted; internal

quotation marks omitted.) State v. Wright, 319 Conn.

684, 689, 127 A.3d 147 (2015). If we determine that the

charges do not arise from the same transaction, we do

not need to proceed to the second step of the analysis.

State v. Schovanec, 326 Conn. 310, 328, 163 A.3d 581

(2017).
‘‘Traditionally we have applied the Blockburger test

to determine whether two statutes criminalize the same

offense, thus placing a defendant prosecuted under

both statutes in double jeopardy: [W]here the same act

or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other

does not. . . . This test is a technical one and examines

only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at

trial. . . .

‘‘Our analysis of [the defendant’s] double jeopardy

[claim] does not end, however, with a comparison of

the offenses. The Blockburger test is a rule of statutory

construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication

of contrary legislative intent. . . . Thus, the

Blockburger test creates only a rebuttable presumption

of legislative intent, [and] the test is not controlling

when a contrary intent is manifest. . . . When the conclusion reached under Blockburger is that the two

crimes do not constitute the same offense, the burden

remains on the defendant to demonstrate a clear legislative intent to the contrary.’’ (Citations omitted; internal

quotation marks omitted.) State v. Wright, supra,

689–90.

We begin our analysis by determining whether the

conviction for both counts of risk of injury to a child

pursuant to § 53-21 (a) (1) and (2) arose from the same

act or transaction. ‘‘[D]istinct repetitions of a prohibited

act, however closely they may follow each other . . .

may be punished as separate crimes without offending

the double jeopardy clause. . . . The same transaction,

in other words, may constitute separate and distinct

crimes where it is susceptible of separation into parts,

each of which in itself constitutes a completed offense.

. . . [T]he test is not whether the criminal intent is one

and the same and inspiring the whole transaction, but

whether separate acts have been committed with the

requisite criminal intent and are such as are made punishable by the [statute].’’ (Citations omitted; internal

quotation marks omitted.) State v. Tweedy, 219 Conn.

489, 497–98, 594 A.2d 906 (1991). When analyzing

whether the conviction arose from 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, 328 Conn. 648, 662, 182 A.3d 625 (2018).

At the onset, we note that the defendant did not

obtain a bill of particulars to clarify the charges alleged

in the information.4 As a result, pursuant to our Supreme
Court’s recent decision in Porter, we look to the information, the evidence adduced at trial, and the state’s

theory of the case to discern whether the conviction

arose from the same act or transaction. Our Supreme

Court, when examining those materials, has asked

whether a jury reasonably could have found a separate

factual basis to support its conviction for the offenses

charged. See id., 656–57 (noting that Schovanec looked

to what a jury reasonably could have found); State v.

Schovanec, supra, 326 Conn. 329; State v. Snook, 210

Conn. 244, 265, 555 A.2d 390 (1987), cert. denied, 492

U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). We

conclude that the defendant’s conviction pursuant to

both risk of injury to a child charges arose from separate

acts and transactions.

The defendant argues that the state intermingled evidence, making it impossible to deduce what evidence

the jury relied on to support its conviction for both

counts of risk of injury to a child. Specifically, the defendant points to several statements made by the state

during closing argument, suggesting that the state misled the jury into considering evidence related to the

situational risk of injury to a child charge under § 53-

21 (a) (1) when discussing the sexual contact risk of

injury charge under § 53-21 (a) (2) and vice versa.5 We

are not persuaded.

In State v. Schovanec, supra, 326 Conn. 312–17, the

defendant was convicted of identity theft in the third

degree in violation of General Statutes § 53a-129d,

credit card theft in violation of General Statutes § 53a128c (a), illegal use of a credit card in violation of

General Statutes § 53a-128d (2), and larceny in the sixth

degree in violation of General Statutes § 53a-125b after

he stole the victim’s wallet and later utilized her credit

cards to purchase gasoline and cigarettes. In support

of his argument that his conviction violated his constitutional protection against double jeopardy, the defendant essentially argued that because the trial court had

referred to the purchase of gasoline and cigarettes with

the stolen credit cards, in addition to the theft of the

wallet, when charging the jury on the larceny in the

sixth degree charge, all of the defendant’s acts were

part of the same transaction. Id., 328–29. Our Supreme

Court rejected this argument, opining that ‘‘because the

jury, and not the judge, was the fact finder . . .

because the information was broad enough to encompass the theft of the wallet and its contents and the

separate unauthorized charges on the credit cards, and

because the prosecutor both argued the case and presented evidence in that manner relating to both incidents, we reject the defendant’s arguments in that

regard.’’ Id., 329.

Similarly, in the present case, we find that the information was broad enough to encompass both risk of

injury charges and that the state presented evidence at
trial in a manner that supported the jury’s factual findings. Additionally, a review of the record reveals that

the defendant’s conduct is susceptible to separation

into distinct parts, which supports the conviction for

both charges of risk of injury to a child. The jury reasonably could have found a separate factual basis, on the

basis of the testimony of witnesses and the evidence

admitted at trial, to support each conviction of risk of

injury to a child.

First, the jury reasonably could have credited the

testimony of the victim and the victim’s mother that

the defendant waited until the victim’s mother was in

the shower, pulled down the victim’s pants, pinned her

against the wall, and forced her head toward his

exposed penis. These statements would support a conviction of risk of injury to a child under § 53-21 (a) (1).

Moreover, the jury reasonably could have credited the

victim’s statements in her forensic interview that the

defendant touched her vagina while also discrediting

the defendant’s testimony that his contact with the victim’s vagina was accidental and was done out of concern that other men were touching her in that area.

These statements would support a conviction of risk

of injury to a child under § 53-21 (a) (2).

To bolster his claim, the defendant relies on State v.

Mezrioui, 26 Conn. App. 395, 402–403, 602 A.2d 29, cert.

denied, 224 Conn. 909, 617 A.2d 169 (1992), for the

proposition that where it is unclear what conduct the

jury relied on to convict the defendant, we must conclude that the crimes arose out of the same transaction.

In Mezrioui, the defendant was convicted of sexual

assault in the first degree and sexual assault in the third

degree after he raped the victim in his car. Id., 396–98.

The trial court instructed the jury that the defendant’s

contact with either the victim’s groin or breasts would

support a conviction of sexual assault in the third

degree. Id., 402–403. Because sexual assault in the first

degree entailed incidental contact with the groin, and

because it was unclear whether the jury relied on the

defendant’s contact with the victim’s groin or breasts

for its conviction of sexual assault in the third degree,

this court concluded that the crimes arose out of the

same act or transaction. Id., 403.

A key distinction in Mezrioui, however, is that this

court’s analysis looked only to the charging documents.

Id., 402. Therefore, it did not consider the evidence

presented at trial and the state’s theory of the case to

discern what the jury reasonably could have found to

support the conviction at issue. Id. Consequently, we

are unpersuaded by the defendant’s reliance on Mezrioui because it does not reflect our more recent double

jeopardy jurisprudence that looks to the evidence presented at trial as well as the state’s theory of the case

under the first part of the double jeopardy analysis.

In conclusion, the defendant’s conviction did not
arise from the same acts or transactions. Because the

defendant has failed to satisfy the first part of our double jeopardy inquiry, we decline to move to the second

step of the analysis. Accordingly, we find that the defendant’s constitutional protection against double jeopardy

was not violated.

II

The defendant next claims that he was deprived of

a fair trial due to prosecutorial impropriety during the

course of closing and rebuttal arguments. Specifically,

he argues that the prosecutor (1) misstated the law and

(2) gave her personal opinion as to the credibility of a

witness. We disagree.

We begin by setting forth the relevant law that guides

our analysis. Although the defendant did not object to

the prosecutor’s remarks at trial, his claim is nonetheless reviewable because ‘‘a defendant who fails to preserve claims of prosecutorial [impropriety] need not

seek to prevail under the specific requirements of [Golding], and, similarly, it is unnecessary for a reviewing

court to apply the four-pronged Golding test.’’ (Internal

quotation marks omitted.) State v. Papantoniou, 185

Conn. App. 93, 110, 196 A.3d 839 (2018).

‘‘[O]ur Supreme Court has explained that a defendant’s failure to object at trial to each of the occurrences

that he now raises as instances of prosecutorial impropriety, though relevant to our inquiry, is not fatal to

review of his claims. . . . This does not mean, however, that the absence of an objection at trial does not

play a significant role in the determination of whether

the challenged statements were, in fact, improper. . . .

To the contrary, we continue to adhere to the well

established maxim that defense counsel’s failure to

object to the prosecutor’s argument when it was made

suggests that defense counsel did not believe that it

was [improper] in light of the record of the case at

the time.’’ (Internal quotation marks omitted.) State v.

Roberts, 158 Conn. App. 144, 151, 118 A.3d 631 (2015).

‘‘In analyzing claims of prosecutorial impropriety, we

engage in a two step analytical process. . . . The two

steps are separate and distinct. . . . 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. . . . The two steps of [our] analysis are separate and distinct, and we may reject the claim if we

conclude that the defendant has failed to establish

either prong.’’ (Citations omitted; internal quotation

marks omitted.) State v. Papantoniou, supra, 185 Conn.

App. 110–11. A reviewing court need not conduct the

first step of the analysis if it determines that, even if

the prosecutor’s conduct was improper, it did not

deprive the defendant of a fair trial. State v. Hickey,

135 Conn. App. 532, 554, 43 A.3d 701, cert. denied, 306
Conn. 901, 52 A.3d 728 (2012).

‘‘[P]rosecutorial [impropriety] of a constitutional

magnitude can occur in the course of closing arguments. . . . When making closing arguments to the

jury, [however] [c]ounsel must be allowed a generous

latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely

by rule and line, and something must be allowed for

the zeal of counsel in the heat of argument. . . . Thus,

as the state’s advocate, a prosecutor may argue the

state’s case forcefully, [provided the argument is] fair

and based upon the facts in evidence and the reasonable

inferences to be drawn therefrom.’’ State v. Reddick,

174 Conn. App. 536, 559, 166 A.3d 754, cert. denied, 327

Conn. 921, 171 A.3d 58 (2017), and cert. denied,

U.S. , 138 S. Ct. 1027, 200 L. Ed. 2d 285 (2018).

‘‘[W]hen reviewing the propriety of a prosecutor’s statements, we do not scrutinize each individual comment

in a vacuum but, rather, review the comments complained of in the context of the entire trial.’’ (Internal

quotation marks omitted.) State v. Holmes, 169 Conn.

App. 1, 11, 148 A.3d 581, cert. denied, 323 Conn. 951,

151 A.3d 847 (2016). We address each of the defendant’s

claims of prosecutorial impropriety in turn.

A

The defendant first argues that the prosecutor misstated the law by urging the jury to consider evidence

related to the risk of injury charge under § 53-21 (a)

(1) when discussing the § 53-21 (a) (2) charge.

Specifically, during closing argument, the prosecutor

stated: ‘‘[The victim] said . . . that [the defendant]

exposed his penis and was pulling her head towards

him and telling her to, suck it, and she turned her head

away and was screaming. . . . And does being exposed

to sexual contact by her father in that manner and being

asked to suck his penis, is that gonna affect her health

and morals . . . .’’

‘‘It is well settled that [c]ounsel may comment upon

facts properly in evidence and upon reasonable inferences to be drawn from them.’’ (Internal quotation

marks omitted.) State v. Chankar, 173 Conn. App. 227,

250, 162 A.3d 756, cert. denied, 326 Conn. 914, 173 A.3d

390 (2017). ‘‘Furthermore, prosecutors are not permitted to misstate the law.’’ (Internal quotation marks omitted.) State v. Walton, 175 Conn. App. 642, 648, 168 A.3d

652, cert. denied, 327 Conn. 970, 173 A.3d 390 (2017).

After reviewing the record, we are unpersuaded that

the prosecutor’s remarks were improper. During closing argument, the state highlighted the difference

between the two risk of injury to a child charges, stating,

in relevant part: ‘‘This third count is risk of injury under

what we say a sexual contact risk of injury. There’s

two counts of risk of injury and they’re—and they’re

very different.
‘‘The first one has to do with sexual contact, and that’s

when a person has sexual contact—when a person has

contact with the intimate parts of a child under the age

of sixteen, in a sexual and indecent manner likely to

impair the health or morals of such child. . . .

‘‘Risk of injury, the second count, is what we call a

situational risk. Situational risk is did this situation

affect the child. Specifically . . . it’s when a person

places a child under the age of sixteen in a situation

that the morals of said child were likely to be impaired.

It’s a very different thing than the sexual contact, risk

of injury in count three. It’s a situation.’’ (Emphasis

added.)

When considering these additional statements, it is

apparent that the state attempted to delineate the two

separate risk of injury charges and did not misstate the

law. Rather, the prosecutor correctly stated that the

sexual contact itself must impair the health or morals

of a child to support a conviction under § 53-21 (a)

(2). Although the state may have mentioned evidence

pertaining to the § 53-21 (a) (1) charge when discussing

the § 53-21 (a) (2) charge, the defendant has failed to

cite to any authority which suggests that the state is

required at closing argument to neatly arrange evidence

introduced at trial according to what charge it supports.

To the contrary, our case law makes clear that closing

argument is not a precise exercise. Moreover, the defendant failed to object to the prosecutor’s statement, suggesting that the defendant did not view the remarks as

improper at the time they were made. As a result, we

conclude that the prosecutor’s statement was not

improper.

B

The defendant next argues that the prosecutor

improperly disclosed her own opinion regarding the

credibility of a witness to the jury during rebuttal closing argument. Specifically, the prosecutor said, ‘‘[o]ne

thing makes this, in my opinion, and only my opinion

because you are the judges of the facts . . . [t]hat of

a sexual nature rather than an innocent nature. Specifically in—in a context of [the victim’s sister], she was

asleep and that sexual contact started.’’ (Emphasis

added.)

‘‘The prosecutor may not express his opinion, directly

or indirectly, as to the credibility of the witnesses. . . .

Nor should a prosecutor express his opinion, directly

or indirectly, as to the guilt of the defendant. . . . Such

expressions of personal opinion are a form of unsworn

and unchecked testimony, and are particularly difficult

for the jury to ignore because of the prosecutor’s special

position.’’ (Internal quotation marks omitted.) State v.

Warholic, 278 Conn. 354, 363, 897 A.2d 569 (2006).

‘‘Although there are restrictions on a prosecutor’s

ability to express a personal opinion during closing
argument, [i]t is not improper for the prosecutor to

comment upon the evidence presented at trial and to

argue the inferences that the jurors might draw therefrom. . . . We must give the jury the credit of being

able to differentiate between argument on the evidence

and attempts to persuade them to draw inferences in

the state’s favor, on one hand, and improper unsworn

testimony, with the suggestion of secret knowledge, on

the other hand.’’ (Internal quotation marks omitted.)

State v. Chankar, supra, 173 Conn. App. 251.

Our review of the record leads us to conclude that the

prosecutor’s remark was not improper.6 The prosecutor

was commenting on evidence presented at trial that

the victim’s sister was touched inappropriately by the

defendant while sleeping. In light of this evidence, the

prosecutor urged the jury to infer that the defendant’s

touching of the victim was not accidental as he suggested, but sexual in nature. The prosecutor’s use of

the phrase ‘‘in my opinion’’ in this context does not

raise the concern of improper unsworn testimony or

secret knowledge reaching the ears of the jury. Rather,

these comments were an invitation for the jury to draw

commonsense inferences on the basis of evidence presented at trial. We also note that the defendant did not

object to this statement either, once again creating a

suggestion that the defendant did not view the remarks

as improper at the time they were made. Accordingly,

we conclude that the prosecutor’s remarks were not

improper.

The judgment is affirmed.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to identify the victim or others through whom the victim’s identity may be

ascertained. See General Statutes § 54-86e.

1 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d

694 (1966).

2 General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who

(1) wilfully or unlawfully causes or permits any child under the age of

sixteen years to be placed in such a situation that the life or limb of such

child is endangered, the health of such child is likely to be injured or the

morals of such child are likely to be impaired, or does any act likely to

impair the health or morals of any such child . . . shall be guilty of . . .

a class C felony . . . .’’

3 General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who

. . . (2) has contact with the intimate parts, as defined in [General Statutes

§] 53a-65, of a child under the age of sixteen years or subjects a child under

sixteen years of age to contact with the intimate parts of such person, in

a sexual and indecent manner likely to impair the health or morals of such

child . . . shall be guilty of . . . a class B felony . . . .’’

4

‘‘We acknowledge that the defendant’s failure to pursue a motion for a

bill of particulars complicates this inquiry.’’ State v. Flynn, 14 Conn. App.

10, 17, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L.

Ed. 2d 217 (1988); see also State v. Schovanec, supra, 326 Conn. 328 n.7

(defendant’s failure to request bill of particulars and failure to raise double

jeopardy claim before trial court ‘‘contributed to the ambiguity that is now

present in the record’’).

5 When discussing the situational risk charge under § 53-21 (a) (1), the

state argued that ‘‘[the victim] was trapped up against the wall, that her

body [was] being touched inappropriately by her father and having to try

and have her suck his penis. That’s—of all those factors and some other
ones like [it], being six years old, and it being late at night, and being in

this room, and not having anybody to help and having to scream out to

your mother . . . all of those things go into this situation . . . .’’ (Emphasis

added.) In essence, the defendant argues that the jury could have been

misled to consider the inappropriate touching in convicting him under § 53-

21 (a) (1).

Similarly, the defendant notes that during rebuttal closing argument, the

state asserted: ‘‘[F]irst of all I think I could have a hundred jurors sit here

and—and describe the penetration into a child’s vagina with the fingers by

a father, that’s—is that indecent, is that sexual. But then you add on top of

that this asking [her] to suck the penis—his penis, and she consistently said

that.’’ The defendant argues that this statement could have led the jury to

consider the defendant asking the victim to suck his penis when deliberating

the element of § 53-21 (a) (2) that requires an inappropriate touching to be

sexual in nature.

Finally, the defendant broadly asserts that the state comingled evidence

during closing argument when it urged the jury to consider corroborating

evidence.

6 We acknowledge, and the state concedes, that it nonetheless is preferable

that a prosecutor refrain from the use of the phrase ‘‘in my opinion.’’ See

State v. Gibson, 302 Conn. 653, 660, 31 A.3d 346 (2011) (acknowledging that

prosecutors should avoid phrases beginning with pronoun ‘‘I’’).