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*********************************************** 
STATE OF CONNECTICUT v. JUAN V.*

(AC 40889)

Prescott, Bright and Cobb, Js.

Syllabus

Convicted of four counts of the crime of risk of injury to a child in connection

with his alleged sexual abuse of the minor victim, the defendant appealed

to this court. Held:

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

plain error by permitting the jury, during its deliberations and in the

jury room, to view, without limitation, a video recording of a forensic

interview of the victim, which had been admitted into evidence as a full

exhibit: because the video recording had been admitted into evidence

for substantive purposes as a full exhibit with the agreement of defense

counsel, the trial court correctly submitted the exhibit to the jury for

its consideration as required by the applicable rule of practice (§ 42-

23), which requires that all exhibits received into evidence be submitted

to the jury, and in a manner consistent with our Supreme Court’s stated

preference for juries to receive all exhibits, when feasible, in the jury

room; moreover, because the forensic interview was an exhibit and not

the functional equivalent of in-court testimony, such as a deposition, the

rule of practice (§ 42-26) requiring that the play back of trial testimony

at the request of the jury be conducted in the courtroom did not apply

to the jury’s viewing of the video exhibit of the forensic interview;

accordingly, because the defendant failed to demonstrate any error on

part of the trial court, his claim of plain error failed.

2. The defendant could not prevail on his unpreserved claim that the trial

court improperly instructed the jury on inferences, which was based

on his assertion that the inferences instruction was an impermissible

two-inference instruction that improperly diluted the state’s burden

of proof:

a. The defendant waived his right to challenge the inferences instruction

on appeal, as he had a meaningful opportunity at trial to review it and

expressed no concerns regarding the charge as given to the jury; the

court provided defense counsel with a copy of the proposed instructions

prior to the charging conference and held in-chambers conferences

regarding the instructions, and defense counsel declined to object or

take exception with the inferences instruction when the court read the

final instructions to the parties at the charging conference.

b. The defendant did not demonstrate that the inferences instruction

constituted an error that was so clear, obvious and indisputable as to

warrant the extraordinary remedy of reversal under the plain error

doctrine: the instruction given by the court was a correct statement of

law and did not constitute an impermissible two-inference instruction,

as it did not instruct the jury to draw a conclusion of guilt or innocence,

but to draw a conclusion that seemed reasonable and logical, it related

only to conclusions regarding individual pieces of evidence rather than

the evidence as a whole, and the instructions, taken as a whole, did not

mislead the jury as to the state’s burden to prove every element of

the charged offense beyond a reasonable doubt, and, therefore, the

defendant’s claim did not involve an error so obvious that it affected

the fairness of or public confidence in the judicial proceeding; moreover,

even if such error existed, the inferences instruction did not constitute

manifest injustice, as the defendant failed to demonstrate that the challenged instruction was of such monumental proportion that it threatened

to erode our system of justice or resulted in harm so grievous that

fundamental fairness required a new trial.

3. The trial court did not abuse its discretion by denying the defendant’s

motion for a disclosure to the defense of the victim’s school records

following an in camera review of such records; this court’s independent

review of the undisclosed records confirmed the trial court’s conclusion

that the material did not contain information that was probative of the

victim’s credibility or otherwise exculpatory.

Argued March 7—officially released July 30, 2019
Procedural History

Substitute information charging the defendant with

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

brought to the Superior Court in the judicial district of

Danbury and tried to the jury before Russo, J.; verdict

and judgment of guilty, from which the defendant

appealed to this court. Affirmed.

Pamela S. Nagy, assistant public defender, for the

appellant (defendant).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, was Stephen J. Sedensky, state’s

attorney, for the appellee (state).
Opinion

COBB, J. The defendant, Juan V., appeals from the

judgment of conviction, rendered after a jury trial, of

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

General Statutes § 53-21 (a) (1)1 and two counts of risk

of injury to a child in violation of General Statutes § 53-

21 (a) (2).2 On appeal, the defendant claims that the

court improperly (1) permitted the jury to have with it

during its deliberations a video recording of a forensic

interview between the victim and a forensic interviewer, which was admitted as a full exhibit, (2)

instructed the jury on inferences in a manner that

diluted the state’s burden of proof, and (3) denied his

motion for a disclosure of the victim’s school records.

The defendant’s first two claims concededly are unpreserved and we conclude that the defendant has failed

to demonstrate that this court should review them or

that he should prevail pursuant to the doctrines on

which he relies. As to the defendant’s third claim of

error, we have reviewed the victim’s school records

and conclude that they do not contain any information

that is exculpatory or otherwise bears on the victim’s

credibility. Accordingly, we affirm the judgment of the

trial court.

The jury reasonably could have found the following

facts. In 2006, the defendant began dating the victim’s

mother, E, and after about six months, the defendant

moved in with E and the victim. At that time, the victim

was approximately four years of age. In 2008, the defendant and E married, and the defendant adopted the

victim in 2009.3

When the victim was approximately ten years old,

the defendant began touching her inappropriately when

E was not home. Specifically, the defendant ‘‘touched

[the victim] on [her] breasts and vagina with . . . [h]is

mouth, his hands and his penis.’’ On one occasion, the

defendant attempted to put his penis inside of the victim’s vagina. At another point, the defendant masturbated in front of the victim and ejaculated onto her leg.

On April 2, 2014, after watching a video in health

class about sexually transmitted diseases, the victim,

who was twelve years old, told two friends, J and S,

that the defendant had touched her inappropriately. J

and S encouraged the victim to tell her mother or

another adult about the defendant’s conduct, but the

victim said that she was too afraid to do so. Later that

day, at an after school program that the victim, J, and

S attended, a program counselor overheard J and S

discussing what the victim had told them about the

defendant and reported what she had heard to her

supervisor, who, in turn, contacted the Department of

Children and Families (department).

The next day, the department contacted E. That same

day, E met with Terry Harper, a department social
worker, and Harper informed E about the victim’s allegations. That evening, E and the victim met with Donna

Meyer, a forensic interviewer and consultant for the

department’s multidisciplinary investigative team.

Meyer conducted a videotaped interview of the victim,

during which the victim stated that the defendant began

touching her inappropriately when she was ten years

old and that his inappropriate conduct continued until

approximately three weeks before her twelfth birthday.

Specifically, the victim stated that the defendant

touched her breasts and vagina multiple times and tried

to kiss her on the mouth once or twice. The victim also

stated that the defendant once came into the bathroom

while she was showering. The victim described another

occasion when the defendant showed her a pornographic video on his tablet computer and touched her

breast. The victim stated that she was worried about

contracting HIV because the defendant once licked his

hand before touching her vagina.

After the forensic interview, Veronica Ron-Priola, a

board certified pediatrician and a medical consultant

for the department’s multidisciplinary investigative

team, performed a medical examination of the victim.

The victim informed Ron-Priola that the defendant

‘‘touched her breast and her private parts, under her

clothes.’’ The victim also stated that the defendant

‘‘tried to put his thing in [her] private parts.’’ Ron-Priola

asked the victim whether, by ‘‘thing,’’ she meant the

defendant’s penis, and the victim responded ‘‘yes.’’ The

victim also told Ron-Priola that it ‘‘hurt’’ when the defendant put his finger inside of her ‘‘privates’’ and that ‘‘a

couple of times it hurt to go pee-pee’’ after the defendant

touched her. Ron-Priola reported that the results of the

victim’s medical examination were normal.

The defendant subsequently was arrested and

charged with two counts of risk of injury to a child in

violation of § 53-21 (a) (1) and two counts of risk of

injury to a child in violation of § 53-21 (a) (2). On September 29, 2016, following a jury trial, the defendant

was convicted of all charges. On June 28, 2017, the

defendant was sentenced to a total effective sentence

of thirty years of incarceration, execution suspended

after twelve years, and twenty years of probation. The

defendant then filed the present appeal. Additional facts

and procedural history will be set forth as necessary.

I

The defendant’s first claim on appeal is that the court

improperly permitted the jury to have with it during its

deliberations the videotaped recording of the victim’s

forensic interview, which had been received into evidence as a full exhibit. Specifically, the defendant

claims that the court should not have allowed the

exhibit to be viewed by the jury in the jury room, but

should have required that the exhibit be maintained

separately and viewed only in open court upon request
by the jury. The defendant argues that by allowing the

jury ‘‘unfettered access’’ to the recording, the court

permitted the jury to afford the victim’s forensic interview more weight than the rest of the evidence or other

exhibits. We disagree.

The following additional facts and procedural history

are relevant to this claim. Prior to trial, the state filed a

notice of its intent to offer into evidence the videotaped

recording of the victim’s April 3, 2014 forensic interview

and a transcript of the interview. In response, the defendant filed a written objection. In the defendant’s memorandum of law filed in support of the objection, he

argued that if the victim testified at trial, ‘‘the video

should only be admitted if anything in her testimony

contradicts the statements made to the forensic interviewer.’’

On May 10, 2017, the victim testified at trial. During

direct examination, the victim testified in detail regarding numerous instances of sexual assault by the defendant that she had described in the forensic interview.

The victim also testified to additional incidents of sexual assault by the defendant that she had not described

in the forensic interview. Additionally, during her trial

testimony, the victim stated that she did not recall telling Meyer of one occasion of assault and that she had

misstated the location of another one of the assaults

she had described in the forensic interview.

Immediately following this testimony by the victim,

the state offered the video recording and a transcript

of the forensic interview for substantive purposes. The

defendant agreed that the recording and transcript

should be admitted as full exhibits, ‘‘given the nature

of the testimony here today and what is contained on

the . . . video . . . .’’ The video recording and the

transcript were admitted into evidence as full exhibits.

The state then played the entire videotaped forensic

interview for the jury, and then finished its direct examination of the victim. During the defendant’s cross-examination of the victim, the defendant referenced the

forensic interview multiple times.

During closing argument, defense counsel pointed

out discrepancies between the victim’s forensic interview and her testimony at trial. Defense counsel

expressly informed the jury that the recording and a

transcript of the forensic interview were full exhibits

in the case, that it would have them in the jury room

during deliberations, and urged them to review the

video recording in evaluating the victim’s credibility.4

After the court charged the jury, it reviewed the

exhibits with counsel prior to delivering them to the

jury for deliberations. The courtroom clerk informed

the parties that the video recording of the forensic interview was a full exhibit. The prosecutor then asked

whether the necessary equipment would be provided
to the jury in the jury room so that it could view the

exhibit. The clerk responded, ‘‘That’s my understanding.’’ Defense counsel raised no objection to the exhibit

being submitted to the jury in the jury room for its

deliberations in the same way as the other exhibits.

During deliberations, the court received a note from

the jury asking to hear ‘‘[the victim’s] full testimony

. . . .’’ In response to this note, the court reminded the

jury that the victim’s testimony included the videotaped

recording of her forensic interview.5 The court then

informed the jury that the recording was a full exhibit

and that they could watch it ‘‘in the privacy of the jury

room . . . .’’6 The court also informed the jury: ‘‘If you

want to send an additional note, specifying further

exactly what you’d like to hear, I’ll dismiss you for a

couple of seconds . . . .’’ The jury responded that it

wanted to hear the victim’s live testimony only and not

the video recording of the forensic interview. The court

then had the victim’s in-court testimony played back

for the jury.

Although the defendant agreed that the video

recording of the forensic interview should be admitted

as a full exhibit and encouraged the jury to view the

recording in the jury room during the jury’s deliberations, he now claims that it was error for the court to

permit the jury to have unlimited access to the exhibit,

and that the court should have withheld the exhibit

from the jury and allowed it to watch the recording

only in open court upon request by the jury.

The defendant concedes that this claim is unpreserved but argues that the judgment should be reversed

under the plain error doctrine. ‘‘It is well established

that the plain error doctrine . . . is an extraordinary

remedy used by appellate courts to rectify errors committed at trial that, although unpreserved . . . are of

such monumental proportion that they threaten to

erode our system of justice and work a serious and

manifest injustice on the aggrieved party. [T]he plain

error doctrine . . . is not . . . a rule of reviewability.

It is a rule of reversibility. That is, it is a doctrine that

this court invokes in order to rectify a trial court ruling

that, although either not properly preserved or never

raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment . . . for reasons of

policy. . . . In addition, the plain error doctrine is

reserved for truly extraordinary situations [in which]

the existence of the error is so obvious that it affects

the fairness and integrity of and public confidence in

the judicial proceedings.’’ (Internal quotation marks

omitted.) State v. Ruocco, 322 Conn. 796, 803, 144 A.3d

354 (2016).

‘‘Our Supreme Court . . . clarified the two step

framework under which we review claims of plain error.

First, we must determine whether the trial court in fact

committed an error and, if it did, whether that error
was indeed plain in the sense that it is patent [or] readily

discernable on the face of a factually adequate record,

[and] also . . . obvious in the sense of not debatable.

. . . [T]his inquiry entails a relatively high standard,

under which it is not enough for the defendant simply

to demonstrate that his position is correct. Rather, the

party seeking plain error review must demonstrate that

the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . . [U]nder the second prong of the analysis we

must determine whether the consequences of the error

are so grievous as to be fundamentally unfair or manifestly unjust. . . . Only if both prongs of the analysis

are satisfied can the appealing party obtain relief.’’

(Internal quotation marks omitted.) State v. Ruocco, 151

Conn. App. 732, 739–40, 95 A.3d 573 (2014), aff’d, 322

Conn. 796, 144 A.3d 354 (2016).

In the present case, the defendant argues that the

trial court committed plain error because allowing the

video recording of the victim’s forensic interview to be

viewed by the jury in the jury room without limitation

is contrary to the Supreme Court’s decision in State v.

Gould, 241 Conn. 1, 9, 695 A.2d 1022 (1997). The state

disagrees and argues that the trial court had discretion

to determine how the jury viewed the exhibit under

State v. Jones, 314 Conn. 410, 419–24, 102 A.3d 694

(2014). We agree with the state that the trial court did

not commit an error that was so clear, obvious, and

indisputable as to warrant the extraordinary remedy of

reversal under the plain error doctrine.

The submission to the jury of the video recording

was required by Practice Book § 42-23, which provides

in relevant part: ‘‘(a) The judicial authority shall submit

to the jury . . . (2) All exhibits received in evidence.

. . .’’ (Emphasis added.) Pursuant to this clear rule,

exhibits received in evidence during a trial should be

submitted to the jury for its consideration. The rule

requires ‘‘[a]ll’’ exhibits to be submitted to the jury and

does not contain an exception for video recordings of

forensic interviews or any other type of exhibit. The

video recording of the victim’s forensic interview was

received into evidence as a full exhibit after the defendant agreed that it was admissible. The exhibit was

played in full during the trial and both parties used the

exhibit during the trial and closing arguments. Thus,

the court correctly followed the rule of practice that

expressly governs the submission of exhibits to the

jury.

The court also correctly followed the most recent

Supreme Court case to consider and interpret Practice

Book § 42-23 (a), State v. Jones, 314 Conn. 410, 102 A.3d

694 (2014). In Jones, the defendant made the opposite

argument to the one being asserted here. The defendant

claimed that the trial court violated § 42-23 (a) by ruling

that the jury could view, during deliberations, a video
exhibit of a police stop of the defendant’s car in open

court rather than the jury deliberation room. Id., 412–13.

Our Supreme Court held that ‘‘although Practice Book

§ 42-23 (a) requires trial courts to submit exhibits to

the jury, that section does not control the manner in

which exhibits must be submitted, and that the trial

court retains discretion to determine the manner in

which the jury examines submitted exhibits.’’ Id., 417.

The court, however, expressed its preference for

allowing jurors to review trial exhibits in the privacy

of the jury room, stating: ‘‘In light of the long-standing

practice of our courts to provide juries all exhibits for

their review in the privacy of the jury room . . . the

preferred option is for juries to receive all exhibits,

when feasible, in the jury room.’’ (Citation omitted;

internal quotation marks omitted.) Id., 424.

The defendant’s reliance on the earlier case of State

v. Gould, supra, 241 Conn. 1, is misplaced because that

case did not involve exhibits, but, rather, it involved

videotaped deposition testimony, admitted with the

court’s permission pursuant to different provisions of

our rules of practice. See Practice Book (1997) §§ 791

and 803 (now §§ 40-44 and 40-56).7

In Gould, the trial

court allowed the state to take a witness’ deposition in

lieu of in person trial testimony because the witness

was physically ill and unavailable to be called as a

witness at trial. Id., 10. The deposition was taken pursuant to Practice Book § 791 (1), now Practice Book § 40-

44 (1), which provides that upon request of any party,

the court ‘‘may issue a subpoena for the appearance of

any person at a designated time and place to give his

or her deposition if such person’s testimony may be

required at trial and it appears to the judicial authority

that such person . . . [w]ill, because of physical or

mental illness or infirmity, be unable to be present to

testify at any trial or hearing . . . .’’ Such depositions

are taken under oath by ‘‘any officer authorized to

administer oaths.’’ Practice Book § 40-47. ‘‘The scope

and manner of examination and cross-examination [at

the deposition] shall be the same as that allowed at

trial.’’ Practice Book § 40-50. ‘‘So far as otherwise admissible under the rules of evidence, a deposition may be

used as evidence at the trial or at any hearing if the

deponent is unavailable . . . .’’ Practice Book § 40-46.

Thus, the videotaped deposition testimony in Gould

was the functional equivalent of in-court testimony, and

was intended to and did serve as the witness’ trial testimony. In Gould, the witness’ deposition was taken

under oath and was subject to examination and crossexamination and then played for the jury at the trial in

lieu of the witness’ in person testimony. State v. Gould,

supra, 10–11. When trial testimony is played back for

the jury during deliberations, Practice Book § 42-268

requires that ‘‘the jury shall be conducted to the

courtroom.’’

Although the play back of the testimony in Gould
should have been conducted in the courtroom, the

Supreme Court concluded that ‘‘allowing the jury to

view the testamentary videotape of [the state’s main

witness], as it requested, was a discretionary matter for

the trial court, and [the trial] court did not abuse that

discretion.’’ State v. Gould, supra, 241 Conn. 13. The

court, however, held, under its supervisory powers,

‘‘that in the future this state’s trial courts should supervise the jury review of such videotaped deposition testimony.’’ Id., 9. In support of this holding, the court stated:

‘‘There is value . . . in requiring trial courts to supervise a jury’s review of videotaped deposition testimony.

. . . Where a court decides, pursuant to that court’s

sound discretion that the jury should be permitted to

replay videotaped deposition testimony, it must be done

in open court under the supervision of the trial judge

and in the presence of the parties and their counsel.’’

Id., 15.

In the present case, the victim testified in person

at the trial. Her forensic interview was not conducted

pursuant to the rules of practice governing trial depositions. See Practice Book §§ 40-44 through 40-58. The

interview was not authorized or required by any judicial

authority, but was conducted at the behest of the

department as part of its investigation. At the interview,

the victim was not under oath or subject to cross-examination. The video recording of the interview was played

for the jury during a break in the victim’s direct examination during the trial and then admitted into evidence

as a full exhibit. The trial court followed the applicable

rules of practice in this case when, after receiving a

request by the jury to hear the victim’s testimony, it

submitted the full exhibit of the video recording of

the forensic interview to the jury for its deliberations

pursuant to Practice Book § 42-23 (a), and played back

the victim’s trial testimony in the courtroom pursuant

to Practice Book § 42-26.9

We conclude that submitting the exhibit of the

recording of the forensic interview to the jury in the

jury room was a correct application of Practice Book

§ 42-23 and our Supreme Court’s preference, expressed

in Jones, that the jury receive all exhibits, when feasible,

in the jury room. See State v. Jones, supra, 314 Conn.

424. Because allowing the jury to view the interview

recording in the jury room was not an error, let alone

an obvious, patent, or nondebateable error, we need

not delve further into plain error analysis. Accordingly,

the defendant’s claim fails.10 See State v. Jamison, 320

Conn. 589, 597, 134 A.3d 560 (2016) (‘‘[a]n appellate

court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is

. . . obvious in the sense of not debatable’’ [internal

quotation marks omitted]).

II

The defendant next claims that the trial court improp-
erly instructed the jury on inferences in a manner that

diluted the state’s burden of proof. Specifically, the

defendant argues that the instruction was an incorrect

statement of the law on permissible inferences and

‘‘violated the defendant’s right not to be convicted

unless the state proved all the elements of the crime

beyond a reasonable doubt.’’ We conclude that the

defendant waived this claim of instructional error and

that he cannot prevail pursuant to the plain error

doctrine.

The following additional facts and procedural history

are relevant to this claim. On May 15, 2017, the state

filed its request to charge, which included the following

instruction on inferences: ‘‘While you the jury must find

every element proven beyond a reasonable doubt in

order to find the defendant guilty of the charged offense,

each of the basic and inferred facts underlying those

conclusions need not be proved beyond a reasonable

doubt. If it is reasonable and logical for the jury to

conclude that a basic fact or an inferred fact is true,

the jury is permitted to consider the fact proven and

may consider it in combination with other proven facts

in determining whether the cumulative effect of all the

evidence proves the defendant guilty of all the elements

of the crime charged beyond a reasonable doubt. . . .

‘‘With respect to individual pieces of evidence, when

the evidence is subject to two possible interpretations,

you are not required to accept the interpretation consistent with innocence. You are allowed to choose the

interpretation that seems reasonable and logical.’’ In

support of its requested instruction on inferences, the

state cited State v. Stanley, 223 Conn. 674, 678, 682 n.5,

613 A.2d 788 (1992).

The defendant did not file a request to charge. Later

that day, the trial court informed the parties that it

anticipated having a revised draft of the jury charge for

counsel to review soon and that it would contact them

when the charge was ready.

On the morning of May 16, 2017, the court held an

on the record charging conference with counsel for

both parties. At the outset of the conference, the court

stated: ‘‘We have had some chambers conference[s]

. . . in connection with the . . . drafting of the charge

itself. But we have a final edition and I’ll ask the parties

to give me their attention as I go through each captioned

subsection and ask them if they have any objections

or comments to each one.’’ During the conference, the

court asked whether either counsel had any comments

or objections as to the final version of the instruction

on inferences, which was identical to the instruction

proposed by the state, except that the court added the

following penultimate sentence: ‘‘But you are also not

required to accept the interpretation consistent with

guilt.’’ Both counsel stated ‘‘[n]o comment’’ in response

to the court’s inquiry. The instructions, thereafter, were
marked as an exhibit.

Later that day, the court charged the jury consistent

with its final version of the instruction, which it had

read to counsel at the charging conference and on which

it received no comment from either party: ‘‘While you,

the jury, must find every element proven beyond a reasonable doubt, in order to find the defendant guilty of

the charged offense, each of the basic and inferred

facts underlying those conclusions need not be proved

beyond a reasonable doubt. If it is reasonable and logical for the jury to conclude that a basic fact or an

inferred fact is true, the jury is permitted to consider

the fact proven and may consider it in combination

with other proven facts in determining whether the

cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged

beyond a reasonable doubt. . . .

‘‘With respect to individual pieces of evidence, when

the evidence is subject to two possible interpretations,

you are not required to accept the interpretation consistent with innocence. But, you are also not required to

accept the interpretation consistent with guilt. You are

allowed to choose the interpretation that seems reasonable and logical.’’

The defendant admits that this claim was not raised

before the trial court, but argues that it is reviewable

under 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).11 The defendant argues

that Golding review is warranted ‘‘because the record

is adequate for review and it implicates the defendant’s

constitutional right not to be convicted unless the state

has proven every element of the crimes beyond a reasonable doubt.’’ The state argues that ‘‘[t]he defendant’s

claim fails under the second and third prongs of Golding

because: (1) the claim is not of constitutional magnitude; (2) he expressly waived the claim below; and (3)

the instruction was a correct statement of law that did

not dilute the state’s burden of proof or mislead the

jury.’’ Although we agree with the defendant that the

record is adequate for review of this claim, we agree

with the state that the defendant waived this claim

pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d

942 (2011).

‘‘[A] constitutional claim that has been waived does

not satisfy the third prong of the Golding test because,

in such circumstances, we simply cannot conclude that

injustice [has been] done to either party . . . or that

the alleged constitutional violation . . . exists and

. . . deprived the defendant of a fair trial . . . .’’ (Internal quotation marks omitted.) State v. Kitchens, supra,

299 Conn. 467; see also id., 482–83.

‘‘[W]hen the trial court provides counsel with a copy

of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from

counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or

given, the defendant may be deemed to have knowledge

of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions

on direct appeal. Such a determination by the reviewing

court must be based on a close examination of the

record and the particular facts and circumstances of

each case.’’ (Internal quotation marks omitted.) State

v. Bellamy, 323 Conn. 400, 409, 147 A.3d 655 (2016).

In the present case, the defendant does not argue

that he lacked a meaningful opportunity to review the

proposed charge. Indeed, the court gave counsel a copy

of the proposed jury instructions prior to the charging

conference and held in-chambers conferences regarding the instructions. Additionally, the trial court went

through each of the instructions, on the record, and

specifically asked whether the parties had any objections. When the court asked the parties whether they

had any objections to the instruction on inferences,

defense counsel stated ‘‘[n]o comment.’’ Thus, we conclude that the defendant waived this claim of instructional error.12

Alternatively, the defendant argues that he should

prevail on this claim pursuant to the plain error doctrine. See State v. McClain, 324 Conn. 802, 815, 155 A.3d

209 (2017) (holding Kitchens waiver does not preclude

plain error review). We agree with the state that the

defendant has failed to establish plain error.

The defendant argues that the court committed plain

error because the ‘‘error here is certainly obvious as it

goes against established precedent stating that if the

jury can reconcile the facts proven with any reasonable

theory consistent with innocence, then it cannot find

the defendant guilty’’ and ‘‘the failure to grant relief

from the court’s error would result in manifest injustice.’’13 The standards for plain error review are set forth

in part I of this opinion.

The defendant cites our Supreme Court’s decision in

State v. Griffin, 253 Conn. 195, 209–10, 749 A.2d 1192

(2000), which involved a challenge to a jury instruction

commonly known as a ‘‘two-inference’’ instruction. Specifically, the charge in Griffin provided: ‘‘If two conclusions reasonably can be drawn from the evidence, one

of innocence and one of guilt, you must adopt the one

of innocence.’’ (Internal quotation marks omitted.) Id.,

204 n.12. The court concluded that the trial court did

not err in giving this instruction, stating: ‘‘[T]he twoinference charge, when viewed in the context of an

otherwise proper instruction on reasonable doubt, does

not impermissibly dilute the state’s burden of proof.

Consequently, the defendant cannot prevail on his . . .

claim of constitutional impropriety.’’ Id., 209. The court,

however, invoked its ‘‘supervisory authority over the
administration of justice to direct that, in the future,

our trial courts refrain from using the ‘two-inference’

language so as to avoid any such possible misunderstanding.’’ (Footnotes omitted.) Id., 209–10. The court

went on to provide the following as a permissible alternative to the two-inference charge: ‘‘If you can, in reason, reconcile all of the facts proved with any reasonable theory consistent with the innocence of the

accused, then you cannot find him guilty.’’ (Internal

quotation marks omitted.) Id., 210 n.18.

The court in the present case did not give a twoinference instruction. Whereas the instruction in Griffin provided that if a jury could draw two inferences

from the evidence, it must adopt the inference consistent with innocence, the charge in the present case did

not instruct the jury to draw a conclusion of guilt or

innocence. Indeed, the charge in the present case

explicitly provided that the jury was not required to

draw a conclusion of guilt or innocence and, instead,

instructed the jury to draw the conclusion that ‘‘seems

reasonable and logical.’’ Furthermore, the charge did

not relate to conclusions to be drawn from the evidence

as a whole, which was the issue in Griffin. In this case,

the charge related only to how the jury should evaluate

individual pieces of evidence. It was, therefore, not a

two-inference instruction.

Even if we were to assume that the specific charge

in the present case was substantively similar to the

charge in Griffin, that alone would be insufficient to

establish plain or instructional error because the standard for instructional error requires the court to examine the entirety of the charge. ‘‘The standard of review

for claims of instructional impropriety is well established. [I]ndividual jury instructions should not be

judged in artificial isolation . . . but must be viewed

in the context of the overall charge. . . . The pertinent

test is whether the charge, read in its entirety, fairly

presents the case to the jury in such a way that injustice

is not done to either party under the established rules

of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in

guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible

error. . . . Accordingly, [i]n reviewing a constitutional

challenge to the trial court’s instruction, [a reviewing

court] must consider the jury charge as a whole to

determine whether it is reasonably possible that the

instruction misled the jury. . . . In other words, [a

reviewing court] must consider whether the instructions [in totality] are sufficiently correct in law, adapted

to the issues and ample for the guidance of the jury.’’

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

330 Conn. 344, 359–60, 194 A.3d 272 (2018).

In the present case, the court instructed the jury

extensively on reasonable doubt and stated, at the end
of its reasonable doubt instruction and immediately

before its inferences instruction, that ‘‘[t]he state has

the burden, at all times, to establish each of the elements

of the crime charged beyond a reasonable doubt . . . .’’

In addition to its charge on reasonable doubt, the court

began its inferences instruction by reiterating that ‘‘you,

the jury, must find every element proven beyond a reasonable doubt.’’ Furthermore, the court emphasized

that the inferences instruction related only to individual

pieces of evidence by beginning the second part of the

inferences instruction with the phrase ‘‘[w]ith respect

to individual pieces of evidence.’’ Taken as a whole,

therefore, the instruction did not mislead the jury as

to the state’s obligation to prove every element of the

charge beyond a reasonable doubt.

Thus, the defendant has not demonstrated that the

court’s instruction on inferences constituted an error

that was so clear, obvious, and indisputable as to warrant the extraordinary remedy of reversal as required

under our plain error analysis. See State v. Jackson,

178 Conn. App. 16, 24, 173 A.3d 974 (2017), cert. denied,

327 Conn. 998, 176 A.3d 557 (2018).

Moreover, even if we were to assume that such error

exists, which we decline to do, the defendant has failed

to demonstrate that the court’s instruction constituted

manifest injustice. To show manifest injustice, the

defendant must demonstrate that the error ‘‘was of such

monumental proportion that it threatened to erode our

system of justice . . . or that it resulted in harm so

grievous that fundamental fairness requires a new trial.’’

(Citation omitted; internal quotation marks omitted.)

Id., 29. Here, the defendant has failed to do so, and,

accordingly, we conclude that his claim of plain error

is without merit.

III

Finally, the defendant claims that the trial court erred

in denying his motion for a disclosure of the victim’s

school records. Specifically, the defendant claims that

the court should have granted his motion to disclose the

records because they might be germane to the victim’s

credibility and could contain exculpatory evidence. We

have reviewed the records in camera and disagree with

the defendant’s claim.

The following additional facts and procedural history

are relevant to the resolution of this claim. On December 28, 2016, prior to the start of trial, the defendant

filed a motion for a disclosure of the victim’s school

records. On January 25, 2017, the court held a hearing

on the motion, and defense counsel explained that he

was seeking a disclosure of the records pursuant to

State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984).

Defense counsel argued that the records might bear on

the victim’s credibility because there was evidence that

‘‘the [victim] might have been having problems at . . .
school . . . .’’ The court stated that it would review the

records in camera to determine whether they contained

any exculpatory information.

On April 4, 2017, after reviewing the records in camera, the court held another hearing at which it denied

the motion and the following exchange occurred:

‘‘The Court: . . . [T]he court has reviewed th[e]

records and there is . . . next to nothing that would

be relevant to the presentation or defense of the case.

I say next to nothing because there was one, I want to

say it was March of 2014, what could be categorized

as a one time disruptive behavior where the [victim]

and her girlfriend were roughhousing in the hallway

and they both fell on the floor. They were given an inschool suspension, both parents were called and they

came to the school and were given a letter that suggested that they were roughhousing between periods

and that was not going to be tolerated. They did some

work in school and that was it. That was the only, the

only piece of information that had any type of negative

inference to it and that’s not much of one.

‘‘[The Prosecutor]: Um-huh.

‘‘The Court: The [victim’s] grades seemed to be very

consistent throughout that period, as was her school

attendance.

‘‘[Defense Counsel]: The only question I would have

for Your Honor, as Your Honor I believe was made

aware [of] during the argument for the [State v.] Esposito, [supra, 192 Conn. 166] motion . . . the [victim] in

this case initially reported . . . the allegations [of

abuse] to one of her friends at school and . . . was

overheard by . . . a staff member. I would just be interested in knowing if the person that she had this little

incident with is one of the witnesses that she had

revealed the allegations to.

‘‘The Court: . . . [T]here’s nothing in the school

records that mentions any complaint, any criminal matter. [The defendant’s name] never comes up. . . .

[T]here was [also] an administrative checklist that had

to be filled out by somebody and it simply mentioned

that [the defendant] was not allowed to pick [the victim]

up or on the grounds of the school. That was it. It’s the

only thing I saw.’’

The defendant asks this court to review the school

records and determine whether the records are exculpatory to the extent that they impact the victim’s credibility. The state agrees that this court should review the

records.

‘‘On review, we must determine whether the court’s

decision constituted an abuse of discretion. . . . This

court has the responsibility to conduct its own in camera review of the sealed records to determine whether

the trial court abused its discretion in refusing to release
those records to the defendant. . . . While we are

mindful that the defendant’s task to lay a foundation

as to the likely relevance of records to which he is not

privy is not an easy one, we are also mindful of the

witness’ legitimate interest in maintaining, to the extent

possible, the privacy of her confidential records. . . .

The linchpin of the determination of the defendant’s

access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth . . . so

as to justify breach of their confidentiality . . . .

Whether and to what extent access to the records

should be granted to protect the defendant’s right of

confrontation must be determined on a case by case

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

Tozier, 136 Conn. App. 731, 753, 46 A.3d 960, cert.

denied, 307 Conn. 925, 55 A.3d 567 (2012).

After an in camera review of the victim’s school

records, we conclude that the trial court did not abuse

its discretion by denying the defendant’s motion for a

disclosure of those records. The records do not contain

information that is probative of the victim’s credibility

or is otherwise exculpatory.

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 identify the

victim or others through whom the victim’s identity may be ascertained.

See General Statutes § 54-86e.

1 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) a

class C felony . . . .’’

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

. . . (2) has contact with the intimate parts, as defined in section 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 . . . .’’

3

In 2011, the defendant and E began having marital troubles. Between

2011 and late 2013, the defendant periodically would move out of the house

that he shared with E and the victim. On December 29, 2013, the defendant

travelled to the Dominican Republic where he remained until February 1,

2014. When the defendant returned, E refused to allow him to move back

into the house. In the spring of 2014, the defendant and E divorced.

4 The state has not argued that the defendant waived any claim of error

or induced any error by expressly agreeing to the submission of the video

recording to the jury and encouraging the jury to review it.

5 The video recording of the victim’s forensic interview was not part of

her in-court testimony but was an out-of-court statement admitted for its

truth and played during the victim’s in-court testimony.

6 There is no evidence in the record to establish whether the jurors ever

watched the recording of the forensic interview in the jury room or, if they

did so, whether they watched it more than once.

7 The relevant Practice Book provisions were renumbered in 1998. Practice

Book (1997) §§ 791 and 803 are identical to Practice Book §§ 40-44 and 40-56.

8

In Gould, the court analyzed Practice Book (1997) § 863, which was

renumbered as Practice Book § 42-26 in 1998. State v. Gould, supra, 241 Conn.

11–12. Sections 863 and 42-26, however, are substantively indistinguishable.

9 The defendant also argues, on the basis of nonbinding authority from
other jurisdictions, that the court plainly erred in allowing the recording to

be submitted to the jury for its deliberations in the jury room because it

was ‘‘testimonial’’ in nature and ‘‘many courts in other jurisdictions hold it

is erroneous for the trial court to allow the jury to have unsupervised access

to either recorded testimony or recorded pretrial interviews in the jury

room during deliberations even if they have been admitted as exhibits.’’ The

defendant, however, has not provided, and the court is not aware of, any

cases that support a finding of plain error on the basis of nonbinding outof-state cases. We cannot conclude that such cases ‘‘demonstrate that the

claimed impropriety was so clear, obvious and indisputable as to warrant

the extraordinary remedy of reversal.’’ (Internal quotation marks omitted.)

State v. Ruocco, supra, 151 Conn. App. 740.

This is particularly true because the cases on which the defendant relies

are distinguishable. See, e.g., People v. Jefferson, 411 P.3d 823, 827 (Colo.

App. 2014) (allowing jury to view, unsupervised, recording of forensic interview with child who could not recall details of alleged abuse during trial

was harmful error), aff’d, 393 P.3d 493 (Colo. 2017); McAtee v. Commonwealth, 413 S.W.3d 608, 622 (Ky. 2013) (improper to allow jury to view

recording of witness’ statements to law enforcement in jury room); Reed v.

State, 373 P.3d 118, 122 (Okla. Crim. App. 2016) (improper to allow videotaped forensic interview of child, which included administration of oath

wherein child affirmed she would be truthful, to be taken with jury into deliberations).

Unlike People v. Jefferson, supra, 411 P.3d 827, where the child victim’s

forensic interview became the main account of the alleged assault because,

at trial, the victim was unable to recall the details of what had happened,

in the present case, the victim provided a detailed description of the assaults

when she testified at trial. McAtee v. Commonwealth, supra, 413 S.W.3d

622, also is distinguishable because it involved statements made to law

enforcement, whereas the statements in the present case were made to a

forensic psychiatrist. Finally, Reed v. State, supra, 373 P.3d 122, is distinguishable because, prior to being interviewed, the child victim in the case was

required to swear an oath, whereas in the present case, the victim was not

asked to give any such affirmation before her forensic interview.

To the extent that the defendant relies on State v. Vines, 268 Conn. 239,

244, 842 A.2d 1086 (2004), to support his claim that the forensic interview

was testimonial, such reliance is misplaced. Vines involved the playback of

several witnesses’ in person trial testimony and not an out-of-court investigative forensic interview. Id., 241–42.

10 The defendant argues that even if this unpreserved claim is not plain

error, the court should reverse the judgment pursuant to its supervisory

powers over the administration of justice. Specifically, the defendant urges

this court to create a new rule that requires juries to review forensic interviews in child sex abuse cases in open court under the judge’s supervision.

‘‘Supervisory authority is an extraordinary remedy that should be used

sparingly . . . . Our supervisory powers are invoked only in the rare circumstance [in which] these traditional protections are inadequate to ensure

the fair and just administration of the courts. . . . [W]e are more likely to

invoke our supervisory powers when there is a pervasive and significant

problem . . . or when the conduct or violation at issue is offensive to the

sound administration of justice . . . .’’ (Internal quotation marks omitted.)

State v. Fuller, 158 Conn. App. 378, 392, 119 A.3d 589 (2015); see also State

v. Simmons, 188 Conn. App. 813, 846, 205 A.3d 569 (2019). Because we are

unpersuaded that there is a pervasive and significant issue in allowing juries

to replay forensic interviews outside of the presence of the court, or that

this practice is offensive to the administration of justice, we decline to

exercise our supervisory powers.

11 ‘‘Under [the Golding] test, [a] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions

are met: (1) the record is adequate to review the alleged claim of error; (2)

the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . .

deprived the defendant of a fair trial; and (4) if subject to harmless error

analysis, the state has failed to demonstrate harmlessness of the alleged

constitutional violation beyond a reasonable doubt. In the absence of any

one of these conditions, the defendant’s claim will fail. The appellate tribunal

is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.’’ (Emphasis

in original; internal quotation marks omitted.) State v. Dunbar, 188 Conn.

App. 635, 644, 205 A.3d 747, cert. denied, 331 Conn. 926, 207 A.3d 27 (2019).
12 We note that the defendant did not file a reply brief. Had he done so,

he could have argued, contrary to the state’s assertion in its brief, that this

claim was not waived under Kitchens.

13 The defendant also argues that ‘‘[a]lternatively, the defendant’s convictions should be reversed under this court’s supervisory powers.’’ Specifically,

the defendant asks this court to invoke its supervisory authority because

the instruction at issue ‘‘allowed the jurors to convict the defendant even

though they may have concluded that the evidence led to an interpretation

of innocence as well as guilt.’’ ‘‘Supervisory authority is an extraordinary

remedy that should be used sparingly . . . . Our supervisory powers are

invoked only in the rare circumstance [in which] . . . traditional protections are inadequate to ensure the fair and just administration of the courts.

. . . [W]e are more likely to invoke our supervisory powers when there is

a pervasive and significant problem . . . or when the conduct or violation

at issue is offensive to the sound administration of justice . . . .’’ (Internal

quotation marks omitted.) State v. Fuller, 158 Conn. App. 378, 392, 119 A.3d

589 (2015). Because the instruction at issue was a correct statement of

law, we conclude that this claim fails to meet the requirements of this

extraordinary remedy.