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*********************************************** 
STATE OF CONNECTICUT v. ERROL J.*

(AC 42080)

DiPentima, C. J., and Elgo and Moll, Js.**

Syllabus

Convicted, after a jury trial, of the crimes of risk of injury to a child in

violation of statute (§ 53-21 (a) (1)) and cruelty to persons in connection

with his actions in beating and whipping the victim, his minor child,

with an electrical cord, the defendant appealed to this court. Held:

1. The defendant could not prevail on his claim that the trial court erred

by restricting his cross-examination of three of the state’s expert witnesses, B, M and W, thereby violating his constitutional right to confrontation: contrary to the defendant’s claim that that court improperly

prevented him from cross-examining B, who had diagnosed the victim

with post-traumatic stress disorder, about whether she had considered

alternative diagnoses, the record revealed that the defendant was able

to inquire of B as to how she reached her diagnosis, to explore whether

she had considered other disorders and to scrutinize the methods she

used, and, therefore, the court’s ruling on the scope of the defendant’s

cross-examination of B was not constitutionally defective; moreover,

this court concluded that the trial court did not abuse its discretion

in sustaining the prosecutor’s objections to defense counsel’s line of

questioning with respect to B, as the defendant failed to meet his burden

of showing that the restrictions imposed on cross-examination were

clearly prejudicial; furthermore, this court declined to review the defendant’s claims as to M and W, as those claims were not adequately briefed.

2. The defendant’s claim that the trial court erred in admitting into evidence

unredacted medical records and testimony addressing the ultimate issue

in the case was unavailing: that court did not abuse its discretion because

it properly admitted the unredacted medical records and related testimony under the medical diagnosis or treatment exception to the hearsay

rule, as the medical reports were created by medical practitioners in

the furtherance of the victim’s medical treatment and the testimony

at issue likewise was related to his medical diagnosis and treatment;

moreover, the record was inadequate to review the part of the defendant’s claim related to a motion in limine filed by the defendant that

sought to preclude the state from eliciting testimony from witnesses

that went to the ultimate issue of whether the defendant abused the

victim, as there was no indication in the record that the court ruled on

that motion.

3. The defendant could not prevail on his claim that the prosecutor made

several improper statements during her closing argument, thereby violating his constitutional right to a fair trial:

a. Contrary to the defendant’s claim, the prosecutor did not disparage

defense counsel, as the challenged statements did not rise to the level

of improper conduct because they were directed at challenging and

criticizing the theory of defense that the victim’s behavioral issues

existed before the alleged abuse by the defendant.

b. The prosecutor did not improperly express her personal opinion and

allude to facts outside of the evidence; the prosecutor’s comment about

whether the victim’s behavioral problems were caused by the defendant’s actions referred to issues addressed in testimony by various

witnesses throughout the trial, and her comments about why certain

children are ‘‘bad’’ similarly referred to evidence presented during the

trial about the victim’s behavioral problems stemming from the posttraumatic stress disorder caused by the defendant’s abuse, and the

comments encouraged the jurors to draw reasonable inferences from

the evidence and their own experiences and common knowledge

about children.

c. Although the prosecutor’s statement comparing the defendant’s

actions to cruel and unusual punishment prohibited by the government

under the eighth amendment to the United States constitution was a

misstatement of the law and therefore improper, this court, applying

the factors set forth in State v. Williams (204 Conn. 523), concluded
that it did not deprive the defendant of his due process right to a fair trial.

4. The defendant’s claim that the trial court erred in failing to give the

jury an instruction on the statutory (§ 53a-18 (1)) parental justification

defense with respect to the situation prong of the risk of injury to a

child charge in count two of the information was unavailing, as that

court properly concluded that the defense did not apply to the situation

prong of § 53-21 (a) (1): this court declined to extend the holding in

State v. Nathan J. (294 Conn. 243), that the parental justification defense

may be applied to conduct under the act prong of § 53-21 (a) (1), to the

situation prong of that statute; moreover, the plain language of § 53a18 (1) demonstrates that the parental justification defense is available

only for the specific circumstance in which a defendant uses reasonable

physical force that he believes to be necessary to discipline or promote

the welfare of a child, and, therefore, it does not apply to the situation prong.

Argued February 6—officially released September 1, 2020

Procedural History

Substitute information charging the defendant with

two counts each of the crimes of risk of injury to a

child and assault in the second degree, and with one

count of the crime of cruelty to persons, brought to

the Superior Court in the judicial district of Fairfield,

geographical area number two, and tried to the jury

before Holden, J.; verdict and judgment of guilty of two

counts of risk of injury to a child and one count of

cruelty to persons, from which the defendant appealed

to this court. Affirmed.

Alice Osedach, senior assistant public defender, for

the appellant (defendant).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were John Smriga, former

state’s attorney, Margaret Kelly, state’s attorney, and

Judy Stevens, senior assistant state’s attorney, for the

appellee (state).
Opinion

DiPENTIMA, C. J. The defendant, Errol J., appeals

from the judgment of conviction, rendered following a

jury trial, of two counts of risk of injury to a child in

violation of General Statutes § 53-21 (a) (1) and one

count of cruelty to persons in violation of General Statutes § 53-20 (b) (1). The defendant challenges several of

the trial court’s evidentiary rulings and jury instructions

and raises claims of prosecutorial impropriety. Specifically, he claims that (1) the court erred by restricting

his cross-examination of the state’s expert witnesses,

which violated his constitutional rights to confrontation

and to present a defense, (2) the court erred in admitting

into evidence certain medical records and testimony,

(3) the prosecutor advanced several improper arguments during her closing arguments, violating the defendant’s constitutional right to a fair trial, and (4) the

court erred in failing to give the parental justification

instruction on one of the counts of risk of injury to a

child. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. Between January 1 and May 27, 2015, the defendant beat or whipped his son, the victim, with an electrical cord. At the time of the injuries, the victim was a

student at a Bridgeport school. On May 27, 2015, the

victim met with Christopher Mack, a security officer

employed by the Bridgeport Board of Education, who

worked at the victim’s school. In his role there, Mack

assisted in maintaining a safe environment at the school

and mentoring students. Mack was familiar with the

victim from working at the school. When the victim

came into the office to meet with Mack on May 27,

2015, Mack noticed that he had a large bump on his

head and asked the victim what was on his head. The

victim stepped into Mack’s office and responded, ‘‘I

have more, can you keep a secret?’’ He then lifted up

his shirt to show Mack what Mack described as ‘‘almost

unreal. I noticed . . . slashes across his back, scars,

fresh. When I say fresh, I mean, there were still scabs.

There were some that were old. But there were so many

that I couldn’t even count.’’ The victim also showed

Mack his side. The school nurse was called to examine

the victim. Mack then telephoned the Department of

Children and Families (department).

Andrea Sellers, a department investigative social

worker, responded to the call from Mack on the hotline

for suspected abuse. Once at the school, Sellers

reviewed photographs of the victim taken by Mack and

spoke to the victim and his siblings, who were also

students at the school. Sellers then called the victim’s

parents and requested that they come to the school.

While meeting with Sellers, the defendant admitted to

Sellers that he had used a wire to discipline the victim.

The children were transported to Southwest Commu-
nity Health Center, and the victim was examined by a

nurse there. After it was determined that some of the

injuries on the victim were recent, a ninety-six hour

hold issued pursuant to General Statutes § 17a-101g and

the department took temporary custody of the

children.1

The record establishes the following procedural history. The defendant was charged in an amended long

form information with two counts of risk of injury to

a child in violation of § 53-21 (a) (1) (act prong and

situation prong), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), assault in the

second degree in violation of § 53a-60 (a) (1), and cruelty to persons in violation of § 53-20 (b) (1). Prior to

trial, the defendant filed a motion in limine requesting

that the court preclude the state from (1) referring to

the complainant child as a victim, (2) eliciting information that the department had substantiated allegations

of abuse, and (3) using the word ‘‘abuse’’ when describing the child’s injuries and eliciting testimony from its

witnesses that the child was abused. Following a trial

by jury before Holden, J., the defendant was found not

guilty of the two counts of assault and was found guilty

of the two counts of risk of injury to a child and one

count of cruelty to persons. The court sentenced the

defendant to a total effective term of fifteen years of

incarceration, execution suspended after ten years,

with five years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant raises two evidentiary claims. He first

claims that the court violated his constitutional rights

to confrontation and to present a defense by restricting

his cross-examination. Secondly, he claims that the trial

court erred in admitting into evidence, over his objection, medical records and testimony that addressed the

ultimate issue in the case. We reject both claims.

‘‘The standard to be used to review a trial court’s

decision on the relevance and admissibility of evidence

is abuse of discretion. . . . The trial court has wide

discretion to determine the relevancy of evidence and

the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness

of the court’s ruling in determining whether there has

been an abuse of discretion.’’ (Citation omitted; internal

quotation marks omitted.) State v. Markeveys, 56 Conn.

App. 716, 718–19, 745 A.2d 212, cert. denied, 252 Conn.

952, 749 A.2d 1203 (2000).

A

The defendant first challenges the court’s rulings on

the scope of cross-examination in reference to the testimony of three of the state’s witnesses: Rebecca Moles,

a pediatrician with training in treating victims of child

abuse employed at the Connecticut Children’s Medical
Center; Ariane Brown, a licensed professional counselor at LifeBridge Community Services who treated

the victim in June, 2015; and Natasha Wright, a clinical

social worker at the Family and Children’s Agency

(agency). The defendant argues that the court erred

in preventing him from cross-examining Brown about

whether she considered alternative diagnoses, in particular, oppositional defiant disorder, when diagnosing the

victim. We first briefly address the purported claims as

to Moles and Wright.

The defendant’s appellate briefs do not adequately

identify nor analyze any claims as to Moles and Wright.

The defendant does not discuss how the trial court’s

rulings as to Moles’ testimony violated his rights to

confrontation and to present a defense. The defendant

also only references Wright’s testimony; there is no

discussion in the briefs as to the prosecutor’s objection

to the scope of defense counsel’s cross-examination of

Wright or how the court’s ruling was constitutionally

defective.2

‘‘We are not required to review issues that

have been improperly presented to this court through an

inadequate brief.’’ (Internal quotation marks omitted.)

Bushy v. Forster, 50 Conn. App. 233, 236, 718 A.2d 968

(1998) (citing Connecticut National Bank v. Giacomi,

242 Conn. 17, 44–45, 699 A.2d 101 (1997)), cert. denied,

247 Conn. 944, 723 A.2d 321 (1998). Therefore, we

decline to review these claims.

We turn to the defendant’s challenge to the court’s

restrictions on his cross-examination of Brown.3 As

stated previously in this opinion, the ‘‘general rule is

that restrictions on the scope of cross-examination are

within the sound discretion of the trial judge . . . .’’

(Internal quotation marks omitted.) State v. Reeves, 57

Conn. App. 337, 346, 748 A.2d 357 (2000). This discretion, however, ‘‘comes into play only after the defendant

has been permitted cross-examination sufficient to satisfy the sixth amendment.’’ (Internal quotation marks

omitted.) Id. To determine if the sixth amendment has

been satisfied, we, as the reviewing court, must engage

in a two step analysis. We must determine ‘‘first whether

the cross-examination permitted to defense counsel

comported with sixth amendment standards . . . and

second, whether the trial court abused its discretion in

restricting the scope of that cross-examination. . . .

The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from

which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the

reliability of the witness.’’ (Citations omitted; internal

quotation marks omitted.) Id. ‘‘Once it is established

that the trial court’s ruling on the scope of cross-examination is not constitutionality defective, this court will

apply [e]very reasonable presumption . . . in favor of

the correctness of the court’s ruling in determining

whether there has been an abuse of discretion.’’ (Internal quotation marks omitted.) Id., 347. ‘‘To establish
an abuse of discretion, [the defendant] must show the

restrictions imposed upon [the] cross-examination

were clearly prejudicial.’’ (Internal quotation marks

omitted.) Id., 346.

The following additional facts are relevant to this

claim. In her testimony, Brown described how she

arrived at her conclusion that the victim’s symptoms

were caused by post-traumatic stress disorder (PTSD)

through various diagnostic methods, including trauma

and feelings assessments. Brown testified that all of the

victim’s behavioral problems were attributable to his

PTSD. On cross-examination, defense counsel returned

to the issue of how Brown had arrived at her diagnosis

of PTSD. In her questioning, defense counsel asked

Brown a number of questions about whether the victim

had been ‘‘defiant’’ or failed to follow instructions from

adults. Defense counsel then asked a number of questions about whether Brown had considered another

disorder called oppositional defiant disorder.4 The prosecutor objected to this line of questioning, arguing:

‘‘[T]his goes well beyond the scope of the direct examination. This [witness] has not testified that she’s a psychologist. She has testified that she used this book.

She’s testified as to her diagnosis, as to the diagnosis

that was made at LifeBridge [Community Services], and

this goes now into speculation into perhaps other diagnoses that could have or may have been made or maybe

I don’t know what the whole [gist] of this line of questioning is. However, it goes well beyond the scope of

direct examination.’’ In response, defense counsel

argued that the defendant was ‘‘entitled to present a

defense as well as alternative theories as to that kind

of mental illness this child may be suffering if any.’’ The

court disagreed and sustained the objection. Defense

counsel continued this line of questioning, however,

and asked: ‘‘So, I guess I just want to be clear. You

never even considered oppositional defiant disorder as

something to test?’’ The prosecutor immediately

objected again, and the court sustained the objection.

Later in cross-examination, defense counsel asked

whether Brown had considered ‘‘[o]ther diagnostic

explanations for [the victim’s] behaviors?’’ The prosecutor objected that the question had been asked and

answered. The court agreed but allowed Brown to

answer the question. She testified that ‘‘the diagnosis

that was determined to be the most accurate was

[PTSD].’’ The following exchange then took place:

‘‘Q. So, you did consider other kinds of potential

diagnosis from the [Diagnostic Statistical Manual].

‘‘A. You don’t go into an assessment assuming the

diagnosis. So, everything is considered.

‘‘Q. And that would include several of the other mental illnesses that are described in the DSM, right?’’

The prosecutor then objected again to this line of
questioning as going beyond the scope of direct examination. The court sustained the objection, stating, ‘‘[i]t

does. . . . Other diagnosis; yes, she considered.’’

Defense counsel continued and subsequently asked

Brown, ‘‘But my question was were there specific illnesses that you . . . ?’’ The prosecutor objected,

arguing that the question had been asked and answered

several times. The court again sustained the objection.

The trial court’s ruling on the scope of the defendant’s

cross-examination of Brown was not constitutionally

defective. The defendant was able to inquire of Brown

how she reached her diagnosis of PTSD. By doing so,

the defendant was able to explore whether Brown had

considered other disorders before diagnosing the victim

with PTSD and to scrutinize the methods that she used

in reaching the PTSD diagnosis. Brown testified that

she considered ‘‘everything’’ and did not begin her

assessment assuming a diagnosis. The sixth amendment

right to cross-examination includes the right to an

opportunity for cross-examination, not the right to

unrestricted cross-examination. See State v. Reeves,

supra, 57 Conn. App. 353. The record reveals that the

defendant had the opportunity to criticize Brown’s diagnosis of the victim and her methods of achieving this

diagnosis. We conclude, therefore, that the defendant’s

sixth amendment right to cross-examination was not

violated.

We now consider whether the court abused its discretion in sustaining the prosecutor’s objection. ‘‘To establish an abuse of discretion, [the defendant] must show

that the restrictions imposed upon [the] cross-examination were clearly prejudicial. . . . Once it is established that the trial court’s ruling on the scope of crossexamination is not constitutionally defective, this court

will apply [e]very reasonable presumption . . . in

favor of the correctness of the court’s ruling in

determining whether there has been an abuse of discretion.’’ (Citations omitted; internal quotation marks omitted.) Id., 346–47.

Our review of the record leads us to the conclusion

that the court did not abuse its discretion. As discussed

previously, the defendant had the opportunity to criticize and challenge Brown’s testimony regarding the

victim’s diagnosis. Additionally, the defendant has the

burden of showing that ‘‘the restrictions imposed upon

[the] cross-examination were clearly prejudicial.’’

(Internal quotation marks omitted.) Id., 355. He has not

met that burden. We conclude, therefore, that the trial

court did not abuse its discretion and, therefore, did not

violate the defendant’s sixth amendment constitutional

right to confrontation.

B

The defendant’s second evidentiary claim is that the

trial court erred in admitting into evidence unredacted
medical records and testimony addressing the ultimate

issue in the case. The defendant filed a motion in limine

before trial that sought to prevent the state from eliciting testimony that went to the ultimate issue the jury

was to decide. At trial, the defendant also moved to

have medical records proffered by the state redacted.

The state responds that the portion of this claim as to

the motion in limine is unreviewable because the record

is inadequate for review. In support of this argument,

the state notes that the record contains no argument

on the motion, nor any ruling by the court. We agree

with the state that the record is inadequate to review

the part of this claim addressed in the motion in limine.

We further conclude that the court did not err in admitting into evidence the challenged unredacted medical

records and testimony.

The record reveals the following facts relevant to this

claim. The defendant filed a motion in limine on April

9, 2018. In the motion, the defendant requested that the

state be barred from referring to the complainant as a

‘‘victim,’’ eliciting information that the department had

substantiated allegations of abuse, eliciting testimony

that the defendant was ‘‘abusive,’’ using the word

‘‘abuse’’ when describing the complainant’s injuries or

eliciting testimony in which the word ‘‘abuse’’ is used

when describing the complainant’s injuries. Neither

party has directed us to a written ruling on this motion

or a transcript excerpt reflecting an oral ruling.5

During the trial, the defendant objected to a number

of the exhibits proffered by the state that pertained to

the victim’s medical records from Southwest Community Health Center in Bridgeport (center) on the grounds

that they included the word ‘‘abuse’’ or referred to the

defendant’s conduct as ‘‘abusive.’’6 The defendant

sought to have these exhibits redacted because they

went to the ultimate issue: whether the defendant had

abused the victim. Defense counsel also raised a hearsay objection to the medical records. The court denied

the defendant’s request and determined that the exhibits were admissible under the medical diagnosis or treatment exception to the hearsay rule.7 See Conn. Code

Evid. § 8-3 (5).

Two medical professionals who treated the victim

during one of his visits to the center testified about

these records. The first was Carolyn Walsh, an advanced

practice registered nurse who treated the victim when

the department brought him and his siblings to be examined. Regarding the medical report she created for that

visit, she testified: ‘‘[T]he reason for visit is physical

abuse. The symptoms are reported as being physical

abuse, evaluation, patient presents to clinic with

[department] case worker, mother, and three siblings,

following a report of recent abuse by [the defendant]

that patient may have disclosed to security guard, head

[department] worker and mother. Parents were called
to school two weeks ago for behavioral problems, after

which patient reported to school security guard, [the

defendant] had beaten him. Police were called to

school, but [the defendant] was not arrested on criminal

charges, [the department] worker’s requesting that

patient be evaluated for any signs of possible recent

abuse.’’ Walsh further testified from her report about

a note dated June 9, 2015, which related to the victim’s

psychosocial functioning. She testified that the note

stated that the ‘‘patient with history of significant physical abuse by [the defendant] and subsequent behavioral

problems, removed from home and siblings by [the

department] on [May 27, 2015].’’ Defense counsel

objected to Walsh’s testimony regarding this exhibit by

reiterating her earlier objection to the exhibit.8

Later in the trial, Dara Richards, a pediatrician at the

center, testified about visits the victim had made to the

center, specifically, an office visit on July 29, 2015. She

read from the report of that visit, which stated under the

‘‘present illness’’ section: ‘‘Scars from physical abuse

to scalp remains, child was hit in the head multiple

times by [the defendant] with electrical cord, largest

scar to an occipital region of scalp, still tender and child

complains it hurts at times. Children in grandparents’

custody now, [the department] on case.’’ Richards further testified from the report: ‘‘Patient with history of

significant physical abuse by [the defendant] and subsequent behavioral problems, removed from home with

siblings by [the department] on May 27, [2015].’’

Although the record before this court includes a copy

of the motion in limine filed with the trial court and

the trial transcript, in which the trial court refers to the

motion in limine, the record does not reflect a ruling

on the motion by the trial court. The defendant, as the

appellant, bears the burden of providing this court with

an adequate record for review. See Chester v. Manis,

150 Conn. App. 57, 61, 89 A.3d 1034 (2014); see also

Practice Book § 61-10. Further, ‘‘[w]e cannot pass on

the correctness of a trial court ruling that was never

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

McLaughlin, 135 Conn. App. 193, 202, 41 A.3d 694, cert.

denied, 307 Conn. 904, 53 A.3d 219 (2012). Because we

are unable to determine that any ruling was made on

the motion in limine, we cannot opine on the court’s

action on the motion. Accordingly, this claim must fail.

Further, the court did not abuse its discretion in denying the defendant’s request to have the medical reports

from the center redacted when the state moved to admit

them into evidence. As discussed previously, the court

admitted the exhibits into evidence pursuant to the

medical diagnosis or treatment exception to the hearsay

rule.9 Section 8-3 (5) of the Connecticut Code of Evidence, titled ‘‘Statement for purposes of obtaining medical diagnosis or treatment,’’ provides an exception to

the hearsay rule. It provides: ‘‘A statement made for
purposes of obtaining a medical diagnosis or treatment

and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or

treatment.’’ Conn. Code Evid. § 8-3 (5). ‘‘The admissibility of statements offered under the medical diagnosis

and treatment exception to the hearsay rule turns on

whether the declarant was seeking medical diagnosis

or treatment, and the statements are reasonably pertinent to achieving those ends.’’ (Internal quotation

marks omitted.) State v. Estrella J.C., 169 Conn. App.

56, 72, 148 A.3d 594 (2016).

The record reflects that the testimony at issue was

related to a medical diagnosis or treatment of the victim.

The medical reports prepared by medical practitioners

at the center were created in furtherance of medical

treatment of the victim. Therefore, the records and

related testimony were properly admitted under the

medical diagnosis or treatment exception to the hearsay rule.10

II

The defendant next claims that the prosecutor made

several improper statements during her closing argument, thereby violating the defendant’s constitutional

right to a fair trial. Specifically, he claims that the prosecutor acted improperly in three ways: (1) by disparaging

defense counsel; (2) by expressing her personal opinion

and pointing to facts outside of the evidence; and (3)

by misstating the law and appealing to the emotions of

the jurors. The state argues that the prosecutor did not

advance any improper arguments and that, even if this

court were to find that she acted improperly, her actions

did not deny the defendant his due process rights to a

fair trial. We agree with the defendant as to the impropriety of one of the statements made by the prosecutor

but conclude that the defendant’s right to a fair trial

was not violated.

We review the defendant’s claims of prosecutorial

impropriety under 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. . . . In other words, an

impropriety is an impropriety, regardless of its ultimate

effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a

due process violation involves a separate and distinct

inquiry. . . .

[T]he touchstone of due process analysis in cases

of alleged [harmful] prosecutorial [impropriety] is the

fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s

[actions at trial] so infected [the trial] with unfairness
as to make the resulting conviction a denial of due

process. . . . In determining whether the defendant

was denied a fair trial . . . we must view the prosecutor’s [actions] in the context of the entire trial. . . .

[I]t is not the prosecutor’s conduct alone that guides

our inquiry, but, rather, the fairness of the trial as a

whole. . . . [A] determination of whether the defendant was deprived of his right to a fair trial . . . must

involve the application of the factors set out . . . in

State v. Williams, 204 Conn. 523, 540, 529 A.2d 653

(1987).’’ (Internal quotation marks omitted.) State v.

Bunn, 196 Conn. App. 549, 557–58, A.3d , cert.

denied, 335 Conn. 918, A.3d. (2020). These factors require us to consider ‘‘[1] the extent to which

the [impropriety] was invited by defense conduct or

argument . . . [2] the severity of the [impropriety]

. . . [3] the frequency of the [impropriety] . . . [4] the

centrality of the [impropriety] to the critical issues in

the case . . . [5] the strength of the curative measures

adopted . . . and [6] the strength of the state’s case.’’

(Internal quotation marks omitted.) State v. Albert D.,

196 Conn. App. 155, 162, A.3d , cert denied, 335

Conn. 913, A.3d (2020).

A

The defendant first claims that the prosecutor acted

improperly by disparaging defense counsel in three

statements. In the first instance, the defendant contends

that the prosecutor impugned the role of defense counsel when the prosecutor argued to the jury that evidence

proffered by the state was admitted over objections by

defense counsel. The defendant also argues that the

prosecutor improperly disparaged the role of defense

counsel by criticizing her line of questioning when

cross-examining Brown.11 Finally, the defendant claims

that the prosecutor disparaged the defense when she

argued: ‘‘What happened to the child is a tragedy. But

here’s the bigger tragedy, that he is being blamed and

vilified in this courtroom for the unlawful acts of

[the defendant].’’

‘‘There is a distinction between argument that disparages the integrity or the role of defense counsel and

argument that disparages a theory of defense.’’ (Internal

quotation marks omitted.) State v. Salamon, 287 Conn.

509, 558, 949 A.2d 1092 (2008). Our review of the challenged portion of the prosecutor’s argument leads us

to conclude that these statements were directed at challenging and criticizing the theory of defense that the

victim’s behavioral issues existed before the alleged

abuse by the defendant. Therefore, these arguments do

not rise to the level of improper conduct by the prosecutor.

B

Next, the defendant contends that the prosecutor

improperly expressed her personal opinion and alluded
to facts outside of the evidence. Specifically, the defendant directs us to the following statements by the prosecutor: ‘‘Were the child’s behavior issues as a result of

the physical trauma inflicted by the defendant as punishment or was the child born bad? I don’t think [that]

children are born bad. We are all formed by our environment. Children learn from what they hear or see or

experience. No child is born bad. Bad children are

made.’’

‘‘It is well settled that, in addressing the jury, [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. . . . The prosecutor may not

express his own 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.

. . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence

. . . it is likely to infer that such matters precipitated

the personal opinions.’’ (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693,

712–13, 793 A.2d 226 (2002). ‘‘In deciding cases, however, [j]urors are not expected to lay aside matters

of common knowledge or their own observations and

experiences, but rather, to apply them to the facts as

presented to arrive at an intelligent and correct conclusion. . . . Therefore, it is entirely proper for counsel

to appeal to a jury’s common sense in closing remarks.’’

(Internal quotation marks omitted.) State v. Rolli, 53

Conn. App. 269, 281, 729 A.2d 245, cert. denied, 249

Conn. 926, 733 A.2d 850 (1999).

We conclude that the prosecutor’s comments about

whether the victim’s behavioral problems were caused

by the defendant’s actions referred to issues addressed

in testimony by various witnesses throughout the trial.

Additionally, the prosecutor’s comments about why certain children are ‘‘bad’’ similarly refer to evidence presented during the trial about the victim’s behavioral

problems stemming from the PTSD caused by the abuse

from the defendant. Finally, the statements do not constitute prosecutorial impropriety. Our Supreme Court

has stated: ‘‘Although prosecutors generally should try

to avoid using phrases that begin with the pronoun ‘I,’

such as ‘I think’ or ‘I believe,’ we recognize that the

‘use of the word ‘‘I’’ is part of our everyday parlance

and . . . because of established speech patterns, it

cannot always be easily eliminated completely from

extemporaneous elocution.’ . . . Therefore, if it is

clear that the prosecutor is arguing from the evidence
presented at trial, instead of giving improper unsworn

testimony with the suggestion of secret knowledge, his

or her occasional use of the first person does not constitute misconduct.’’ (Citations omitted.) State v. Luster,

279 Conn. 414, 436, 902 A.2d 636 (2006). The prosecutor’s comments encouraged the jurors to draw reasonable inferences from the evidence. Moreover, these

comments also requested that the jurors draw inferences from their own experiences and common knowledge about children. See State v. Glenn, 97 Conn. App.

719, 735, 906 A.2d 705 (2006), cert. denied, 281 Conn.

913, 916 A.2d 55 (2007). We conclude, therefore, that

these comments were not improper.

C

The defendant’s final claim of prosecutorial impropriety is that the prosecutor misstated the law and

appealed to the jurors’ emotions. In support of this

claim, the defendant points to the following statements

by the prosecutor during closing arguments: ‘‘Now the

alternative for you to consider, and again, this is . . .

under the statute, is whether this punishment of [the

defendant’s] nine year old son was cruel and wilful.

Now the state argues that the facts, and again I’m not

saying them all again, but all of the facts demonstrate

that the defendant did in fact maltreat and torture [the

victim] and that punishment was cruel and unlawful

punishment, and I am going to refer you to the [United

States] constitution, which . . . prevents cruel and

unusual punishment. Our government is not allowed to

use this type of punishment toward people who have

been convicted of crimes. Should the defendant be

allowed to do that to his child?’’

‘‘[P]rosecutors are not permitted to misstate the law

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

Albert D., supra, 196 Conn. App. 167. The United States

constitution’s prohibition against cruel and unusual

punishment is irrelevant to the issue of whether the

defendant committed acts against the victim in violation

of § 53-20 (b) (1).12 The eighth amendment to the United

States constitution prohibits the government from

imposing cruel and unusual punishment. It is not implicated in a defendant’s alleged conduct in a criminal

trial for alleged cruelty to persons. The prosecutor’s

comparison of the defendant’s alleged conduct to the

government’s constitutionally impermissible conduct

under the eighth amendment was misleading. The prosecutor’s statement that the defendant’s actions constituted cruel and unusual punishment under the eighth

amendment to the United States constitution was a

misstatement of the law and therefore improper.

Having found that prosecutorial impropriety

occurred, ‘‘we ask whether the trial as a whole was

fundamentally unfair and [whether] the [impropriety]

so infected the trial with unfairness as to make the

conviction a denial of due process.’’ (Internal quotation
marks omitted.) State v. Albert D., supra, 196 Conn.

App. 177–78. As discussed previously in this opinion,

our determination of whether the defendant’s due process right to a fair trial was denied as a result of the

impropriety is guided by an examination of the six factors set forth by our Supreme Court in State v. Williams,

supra, 204 Conn. 540. These factors are ‘‘[1] the extent

to which the [impropriety] was invited by defense conduct or argument . . . [2] the severity of the [impropriety] . . . [3] the frequency of the [impropriety] . . .

[4] the centrality of the [impropriety] to the critical

issues in the case . . . [5] the strength of the curative

measures adopted . . . and [6] the strength of the

state’s case.’’ (Citations omitted.) Id.

Applying the Williams factors, we conclude that the

prosecutor’s statement about the eighth amendment to

the United States constitution, although improper, did

not deprive the defendant of his due process right to

a fair trial. The first and fourth factors weigh in favor

of the defendant as the statement was not invited by

defense counsel and was directed to a central issue in

the trial, which was whether the defendant’s actions

were cruel and wilful under the cruelty to persons

charge. The other four factors, however, lead us to

conclude that the defendant’s right to a fair trial was

not abridged. As to the second and third factors, we

note that the improper reference to the eighth amendment was made only once during closing argument and

that it could not be considered severe, as it was not

blatantly egregious. See State v. Fauci, 282 Conn. 23,

51, 917 A.2d 978 (2007) (noting that, in determining

severity of prosecutorial impropriety, court will ‘‘look

to whether the impropriety was blatantly egregious or

inexcusable’’). Further, ‘‘the severity of the impropriety

is often counterbalanced in part by the third Williams

factor, namely, the frequency of the [impropriety]

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

Albert D., supra, 196 Conn. App. 179. Accordingly, we

find the second and third factors in favor of the state.

As to the fifth Williams factor, although there were

no specific curative instructions provided to the jury

beyond the standard instruction that arguments by lawyers are not evidence, we note that, ‘‘[i]n the absence

of a showing that the jury failed or declined to follow the

court’s instructions, we presume that it heeded them.’’

(Internal quotation marks omitted.) Id., 180. Finally, the

strength of the state’s case mitigated the effect of the

prosecutor’s misstatement of the law. After reviewing

the prosecutor’s statement in light of these factors, we

agree with the state that the defendant was not deprived

of his due process right to a fair trial.

III

The defendant’s remaining claim is that the court

erred by failing to give the parental justification defense

instruction as to the situation prong of the risk of injury
to a child charge in count two of the information. In a

written request to charge and at trial, the defendant

argued that the parental justification instruction should

be given for count two. The court declined to do so.13

The defendant argues that our Supreme Court precedent requires that the parental justification defense

‘‘applies to all offenses involving a parent’s use of reasonable force against a child.’’ (Emphasis omitted.)

State v. Nathan J., 294 Conn. 243, 253, 982 A.2d 1067

(2009). The defendant concedes, however, that Nathan

J. addresses only the act prong of risk of injury to a

child. We decline to extend the holding of Nathan J. to

apply the parental justification defense to the situation

prong at issue here. Further, the plain language of the

parental justification defense demonstrates that the

defense does not apply to the situation prong. We, therefore, are not persuaded by the defendant’s claim.

We begin by setting forth the relevant principles of

law. ‘‘If [a] defendant asserts a recognized legal defense

and the evidence indicates the availability of that

defense, such charge is obligatory and the defendant

is entitled, as a matter of law, to a theory of defense

instruction. . . . The defendant’s right to such an

instruction is founded on the principles of due process.’’

(Internal quotation marks omitted.) State v. Lynch, 287

Conn. 464, 470, 948 A.2d 1026 (2008). ‘‘A challenge to

the validity of jury instructions presents a question of

law over which this court has plenary review.’’ (Internal

quotation marks omitted.) Mann v. Reagan, 108 Conn.

App. 566, 576, 948 A.2d 1075 (2008).

The relevant defense in this case, the parental justification defense, is set forth in General Statutes § 53a18, which provides in relevant part: ‘‘The use of physical

force upon another person which would otherwise constitute an offense is justifiable and not criminal under

any of the following circumstances: (1) A parent, guardian or other person entrusted with the care and supervision of a minor . . . may use reasonable physical force

upon such minor or . . . when and to the extent that

he reasonably believes such to be necessary to maintain

discipline or to promote the welfare of such minor

. . . .’’

Count two of the information asserts that the defendant violated the situation prong of § 53-21 (a), which

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 . . . shall be guilty

of . . . a class C felony . . . .’’ ‘‘Health’’ in the situation prong includes the mental health of the child. See

State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997),

overruled in part on other grounds by State v. Romero,

269 Conn. 481, 490, 849 A.2d 760 (2004).
Determining whether the parental justification

defense of § 53a-18 should apply to the situation prong

of § 53-21 (a) (1) requires us to employ the tools of

statutory interpretation. ‘‘Issues of statutory construction raise questions of law, over which we exercise

plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the

statutory language as applied to the facts of the case,

including the question of whether the language does

apply. . . .

‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent

of the legislature. . . . In other words, we seek to

determine, in a reasoned manner, the meaning of the

statutory language as applied to the facts of [the] case,

including the question of whether the language actually

does apply. . . . In seeking to determine that meaning,

General Statutes § 1-2z directs us first to consider the

text of the statute itself and its relationship to other

statutes. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in

context, is susceptible to more than one reasonable

interpretation.’’ (Footnote omitted; internal quotation

marks omitted.) Western Dermatology Consultants,

P.C. v. VitalWorks, Inc., 146 Conn. App. 169, 199, 78 A.3d

167 (2013), aff’d, 322 Conn. 541, 153 A.3d 574 (2016).

We first examine the language of the § 53a-18 (1),

which provides in relevant part that ‘‘[a] parent, guardian or other person entrusted with the care and supervision of a minor . . . may use reasonable physical force

upon such minor . . . when and to the extent that he

reasonably believes such to be necessary to maintain

discipline or to promote the welfare of such minor

. . . .’’ The meaning and applicability of this defense

is plain and unambiguous: the defense applies only to

the use of reasonable physical force on a minor. The

situation prong of § 53-21 (a) (1) encompasses a wider

range of conduct beyond physical acts. Therefore, the

plain language of §53a-18 (1) makes clear that the

defense is available to only a narrow range of conduct

as provided for in the statute.

Accordingly, for a defendant to deploy the protection

afforded by the parental justification defense, the defendant must be charged with committing some physical

act against a child. Both the defendant and the state rely

on Nathan J. to support their positions. The defendant

relies on Nathan J. to support his contention that the

parental justification defense must also be applied to

the situation prong of § 53-21 (a) (1). The state, in contrast, emphasizes that Nathan J. addressed only the act

prong of § 53-21 (a) (1), and, thus, the court’s reasoning
is inapplicable to the situation prong at issue here. In

Nathan J., the defendant was charged with assault in

the third degree, disorderly conduct, and risk of injury

to a child under the act prong of § 53-21 (a) (1). State

v. Nathan J., supra. 294 Conn. 248. The trial court

instructed the jury on the parental justification defense

as to the assault and disorderly conduct charges. Id.,

249. It also expressly instructed the jury that the defense

did not apply to the risk of injury charge. Id. The defendant then appealed to this court, which determined

that the defense applied as a matter of law to conduct

charged under § 53-21 (a) (1). Id., 250. On appeal to

our Supreme Court, the state argued that the ‘‘blatant

physical abuse required under the risk of injury statute,’’

which is consistent with the judicial gloss established

in State v. Schriver, 207 Conn. 456, 466, 542 A.2d 686

(1988), ‘‘is logically inconsistent with corporal punishment that is reasonably necessary for purposes of

parental discipline, as required under [the] parental justification defense.’’ State v. Nathan J., supra, 250. The

court rejected this contention. The court discussed how

Schriver ‘‘left in place the authoritative judicial gloss

prescribed under our case law limiting the type of physical harm prohibited by the act prong of § 53-21 [(a)

(1)] to blatant physical abuse.’’ Id., 253. The court then

determined that the text of § 53a-18 (1) indicates that

it applies to all offenses involving a parent’s use of

reasonable force on a child. Id. It further determined

that it was not inconsistent with the requirement of

blatant physical abuse under § 53-21 (a) (1), as the state

argued, to apply the parental justification defense to

conduct brought under the act prong. Id., 254. The court

turned to the meaning of the words ‘‘blatant physical

abuse’’ and concluded that there is no reasonableness

component to ‘‘blatant physical abuse’’ that would conflict with the reasonableness inquiry inherent in the

parental justification defense. Id., 257. Accordingly, the

defense could be applied to such conduct.14 Id., 260.

The court concluded that it was improper for the jury

to be only ‘‘directed, in accordance to the Schriver

gloss, to consider whether the defendant’s conduct was

blatant physical abuse’’ and not consider the reasonableness of the defendant’s actions pursuant to the

parental justification defense. Id.

The court in the present case discussed Nathan J.

when it denied the defendant’s request to apply the

parental justification defense to the situation prong of

§ 53-21 (a) (1). The court stated that ‘‘the situation prong

is a different gloss.’’

As the defendant and the state both note, the charges

at issue in Nathan J. involved physical force. In seeking

to use the parental justification defense, the defendant

in Nathan J. argued that he used reasonable physical

force against the minor child because he believed that

it was necessary for the discipline and welfare of that

child. State v. Nathan J., supra, 294 Conn. 260. The
same logic does not apply to the situation prong. The

very purpose of the parental justification defense, as

evidenced by the plain language of § 53a-18 (1), is rooted

in the physical act committed against the child. The

situation prong goes beyond that scope of the parental

justification defense.15

In the present case, the defendant argued, both at

trial and in his appellate brief, that the state did not

explicitly make clear what theory—injury to life or limb,

health or morals of the child—it was arguing under the

situation prong. In his appellate brief, the defendant

argues that the state’s theory was that the defendant’s

conduct of physically disciplining the victim created the

situation that was likely to cause injury to the victim’s

health or morals. Thus, it was the act of disciplining

the victim itself that created the situation that harmed

the victim. Accordingly, the defendant argues, because

the physical discipline under the act prong caused the

harmful situation under the situation prong, and

because the defendant received the justification instruction on the ‘‘act,’’ he should also have received it on

the ‘‘situation.’’ This argument overlooks the plain language of § 53a-18 (1): the parental justification defense

is available only for the specific circumstance in which

the defendant uses reasonable physical force that he

or she believes to be necessary to discipline or promote

the welfare of the child. As the court noted, the judicial

gloss on the act prong distinguishes it distinctly from

the situation prong. The court did not err in concluding

that the parental justification defense did not apply to

the situation prong of the risk of injury to a child charge

in count two of the information.

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 the crime of risk of injury to a child, we decline to use the

defendant’s full name or to identify the victim or others through whom the

victim’s identity may be ascertained. See General Statutes § 54-86e.

** The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 General Statutes § 17a-101g provides in relevant part: ‘‘(e) If the Commissioner of Children and Families, or the commissioner’s designee, has probable cause to believe that the child or any other child in the household is in

imminent risk of physical harm from the child’s surroundings and that

immediate removal from such surroundings is necessary to ensure the child’s

safety, the commissioner, or the commissioner’s designee, shall authorize

any employee of the department or any law enforcement officer to remove

the child and any other child similarly situated from such surroundings

without the consent of the child’s parent or guardian. The commissioner

shall record in writing the reasons for such removal and include such record

with the report of the investigation conducted under subsection (b) of

this section.

‘‘(f) The removal of a child pursuant to subsection (e) of this section

shall not exceed ninety-six hours. During the period of such removal, the

commissioner, or the commissioner’s designee, shall provide the child with

all necessary care, including medical care, which may include an examination by a physician or mental health professional with or without the consent

of the child’s parents, guardian or other person responsible for the child’s

care, provided reasonable attempts have been made to obtain consent of

the child’s parents or guardian or other person responsible for the care of

such child. During the course of a medical examination, a physician may
perform diagnostic tests and procedures necessary for the detection of child

abuse or neglect. If the child is not returned home within such ninetysix-hour period, with or without protective services, the department shall

proceed in accordance with section 46b-129. . . .’’

2 We note that the defendant also has not complied with Practice Book

§ 67-4 (e) (3).

3 The defendant’s appellate briefs do not adequately address his claim

regarding the purported violation of his right to present a defense. The

briefs include only the relevant law without any further application to the

facts of the case. See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 245 (2008) (noting that when

‘‘issue is merely mentioned, but not briefed beyond a bare assertion of the

claim, it is deemed to have been waived’’ (internal quotation marks omitted)).

Accordingly, we decline to address this potential claim.

4 Specifically, the following colloquy occurred between defense counsel

and Brown:

‘‘Q. You’re familiar with the DSM, correct?

‘‘A. Correct.

‘‘Q. That’s the Diagnostic Statistical Manual.

‘‘A. Right. . . .

‘‘Q. And it’s generally accepted in the psychological community and mental

health community as an authoritative text, right?

‘‘A. Yes. . . .

‘‘Q. And you’re familiar with the diseases that are in here.

‘‘A. Yes.

‘‘Q. The mental illnesses that are described.

‘‘A. Yes. I mean I don’t have it memorized, but, yes, I’m familiar with

them. . . .

‘‘Q. You are familiar with oppositional defiant disorder.

‘‘A. Yes. . . .

‘‘Q. Thank you. Now, in the DSM, oppositional defiant disorder is defined

as a pattern of angry irritable mood, argumentative defiant behavior or

vindictiveness lasting at least six months, correct?

‘‘A. Yes, I believe so. You’re reading from it there so yes. . . .

‘‘Q: Can you not remember off the top of your head the specific language

from the definition of oppositional defiant disorder?

‘‘A. When we’re diagnosing, we’re not doing it by just memory. We have

the tools with us.

‘‘Q. Right. So, if I may, Your Honor? If I may approach, I’m happy to

provide this for you. I believe this is something you were familiar with at

one point, and this is what you would use to diagnosis, correct?

‘‘A. Right.’’

5

In the defendant’s reply brief, he argues that, because the court referenced the motion in limine, the court ruled on it ‘‘incrementally.’’ He argues

that, because the court referenced the motion before evidence, ‘‘[it] was

[an] ongoing open motion dependent upon witness’ testimony . . . [that]

was argued and ruled upon incrementally.’’ It is well established that arguments cannot be raised for the first time in a reply brief. See State v. Gavin,

242 Conn. 296, 312, 699 A.2d 921 (1997). Accordingly, we do not review

this claim.

6 These exhibits included medical reports from three separate visits the

victim made to the center.

7 The court overruled the defendant’s objections and stated: ‘‘The court

finds that they are [admissible] pursuant to the exception, the medical

records and treatment.’’

8 During Walsh’s testimony about her examination of the victim and her

notes from that examination, the prosecutor proffered the exhibits into

evidence. The court stated: ‘‘This was subject to discussion outside the

presence of the jury. The court relied on the hearsay exception to medical

records, and it’s being offered pursuant to that motion as a full exhibit.’’

The court then asked defense counsel, ‘‘Counsel, any further objection?’’ In

response, defense counsel merely stated, ‘‘No, I just reserve the issues [that]

were raised.’’

9 See footnote 7 of this opinion.

10 The defendant argues that the court permitted the exhibits at issue, and

the subsequent testimony regarding their contents, to be admitted as expert

opinion evidence pursuant to § 7-3 of the Connecticut Code of Evidence. This

contention is belied by the record. In overruling the defendant’s objection

to the admission of the documents from the center, the court stated: ‘‘The

court finds that they are [admissible] pursuant to the exception, the medical
records and treatment.’’

11 The defendant argues that the prosecutor ‘‘sarcastically’’ argued to the

jury, ‘‘[a]pparently . . . Brown had to consider every other mental disease

and disorder in that [Diagnostic Statistical Manual], the psychiatric bible

that was held up for you. That’s a very thick book.’’

12 As discussed previously in this opinion, the defendant was convicted

of cruelty to persons in violation of § 53-20 (b) (1), which provides: ‘‘Any

person who, having the control and custody of any child under the age of

nineteen years, in any capacity whatsoever, intentionally maltreats, tortures,

overworks or cruelly or unlawfully punishes such child or intentionally

deprives such child of necessary food, clothing or shelter shall be guilty of

a class D felony.’’

13 The court instructed the jury as follows: ‘‘After you have considered all

of the evidence in this case, if you find that the state has proved beyond a

reasonable doubt each element of the crimes as charged, you must then

consider whether the defendant acted with parental justification in the

discipline of [the victim]. You must consider this defense in connection with

count one, risk of injury to a minor. The state alleges that the act of the

defendant must cause blatant physical abuse to [the victim]. The parental—

this defense, parental justification, is to be applied to that charge.

‘‘If you find the state has proven beyond a reasonable [doubt] the elements

of risk of injury, then you consider whether or not the state has disproven

. . . this justification defense. There’s no burden for the defense to prove

anything. The defense was raised with evidence in the trial through perhaps

the testimony of some witnesses as well as the stipulation read to you called

admissions regarding the physical discipline. That’s raised.

‘‘So, in order to determine whether or not the state has disproven the

justifiable discipline of justification, parental justification, you must first

find beyond a reasonable doubt unanimously that the state has proven the

elements of the crime. Count one, risk of injury. If you find the state has

not proven beyond a reasonable doubt the elements of the crime, then, of

course, you need not consider this justification defense.

‘‘Now, in considering the evidence, you find the state has proven beyond

a reasonable doubt each of the elements of the crime, you must go on and

consider whether the defendant acted with parental justification in the

discipline of [the victim]. You must consider this offense in connection with

counts one, risk of injury with the act prong, count three, serious—assault

in the second degree with a dangerous instrument, count three, count four,

assault in the second degree and count five, cruelty to persons, [the defense]

does not apply to [the] situation prong on count two.’’

The court provided further instructions on the elements on the crimes

with which the defendant was charged and reiterated that the defense did

not apply to the situation prong.

14 The court noted that ‘‘a forceful spanking might well qualify as blatant

physical abuse because it is an obvious, wilful, nonaccidental force against

a child.’’ State v. Nathan J., supra, 294 Conn. 260.

15 In Nathan J., the court noted that ‘‘[t]he reach of the situation prong

of § 53-21 (a) (1) is actually broader than that of the act prong.’’ State v.

Nathan J., supra, 243 Conn. 264 n.13; see State v. Payne, supra, 240 Conn.

782 (‘‘a defendant need not touch a child in order to violate the [situation

prong of § 53-21 (a) (1)]’’).