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STATE v. SHAW—DISSENT

ESPINOSA, J., dissenting. Today’s majority decision

turns back the clock to a time when victims of sexual

assault, whether they were children or adults, were

subjected at trial to undue harassment, prejudice, fear

of embarrassment, and a violation of their sexual privacy. This decision eviscerates the rape shield statute

with the unfortunate consequence that defendants can

now circumvent the very protections which the statute

was intended to provide by asserting unsubstantiated

self-serving claims and conjecture. This is a particularly

troubling outcome for children with a prior history of

being sexually abused. Therefore, I respectfully dissent.

I conclude that the trial court, after affording the

defendant, Christopher Shaw, with multiple opportunities to present a sufficient offer of proof and holding

an evidentiary hearing, correctly determined that the

testimony and questioning sought by the defendant was

not relevant and was more prejudicial than probative.

Because I do not dispute the majority’s recitation of

the facts that the jury reasonably could have found, I

do not repeat them here.1

I do, however, question the

majority’s legal conclusions. In deciding that the defendant’s proposed testimony and the proposed questioning of A, the victim, K, her older brother, and B,

their mother,2 were relevant and more probative than

prejudicial, the majority glosses over the pretrial proceedings and legal arguments that transpired outside

the presence of the jury and disproportionately focuses

on the trial court’s misplaced reliance on State v. Rolon,

257 Conn. 156, 777 A.2d 604 (2001). By ignoring the

procedural posture that led the court to its legal conclusion, the majority overlooks the reality that, notwithstanding his motions and arguments, the defendant had

not proffered any admissible evidence that A had

engaged in sexual intercourse with K three days prior

to the defendant’s arrest or that A and B were

attempting to cover up the defendant’s allegations of

said conduct.

The defendant made three offers of proof throughout

the pretrial and trial proceedings. The first offer was

made by the defendant in connection with a motion to

present evidence of the prior sexual conduct of A and

resulted in a hearing. The second offer of proof was

made during the cross-examination of B, and the final

offer of proof was made by way of the defendant’s

motion for reconsideration. A close look at these proceedings leads to the conclusion that the defendant

failed to overcome the burden imposed on him by the

rape shield statute.

I

The defendant first sought the introduction of evi-
dence of prior sexual conduct of A pursuant to the

rape shield statute, General Statutes § 54-86f,3

through

a motion that he filed on February 27, 2008. In that

motion, the defendant sought a hearing so that he could

‘‘present evidence concerning the prior sexual history

of the alleged complainant, [A], to be used in either the

defendant’s case-in-chief or in rebuttal following the

state’s presentation on direct orrebuttal, of sexual injuries sustained by . . . [A], which [the state] claims

resulted from this incident, in order to provide an alternate source for such injuries and as evidence relating

to the motive of several witnesses to fabricate.’’ In support of his motion, the defendant asserted that an emergency room medical report and expert disclosures by

the state identified A’s injuries as having occurred

recently, that discovery indicated that A had stated that

the defendant and B were not getting along because

the defendant had made allegations that A and K

recently had been engaged in sexual misconduct, that

a video camera had been seized by the police ‘‘which

may show the inside of the home on the evening of the

alleged offense,’’ and that the fact that A and B knew

the defendant had made allegations of inappropriate

sexual conduct between A and K gave them a motive

to fabricate evidence against the defendant to prevent

his claim from being revealed.

That same day, when the parties and the court were

discussing outstanding motions, the trial court marked

as a court exhibit the discovery packet that defense

counsel had received the previous day, which had

formed the basis forthe defendant’s motion. The packet

contained a report from a social worker who interviewed A following the assault, which stated, ‘‘[B]

advised [the] police that[the defendant] had been telling

[B] she needs to watch her fifteen year old son [K]

as [the defendant] believed [K] and [A] were having

intercourse. As a result, a video camera was placed in

the home so that [K] and [A] could be watched. However

[the defendant] is the only one in the home [who] knows

how to work the video camera. According to [the] police

report there was no evidence of [A] and [K] being sexually involved. However the video camera did show [the

defendant] turning off the camera. . . . [A] denies

[ever] being touched by [K]. [A] stated [K] and [the

defendant] do not get along because [the defendant]

has alleged that [K] is touching [her].’’ The discovery

packet also contained a referral to the Child Sexual

Abuse Clinic made by the social worker that stated,

‘‘[the defendant] has alleged that [A’s] older sibling [K]

was having intercourse with [A] however [A] denies.’’

The next day, on February 28, 2008, defense counsel

Auden Grogins argued the motion. She asserted that

an emergency room report written by Mark Cicero, a

physician, disclosed that A had recent vaginal tears.

Grogins represented that the defendant’s proposed testimony and other evidence would establish that another
party was responsible for the injuries and that B was

investigating the defendant’s allegations of sexual intercourse between A and K. Grogins asserted that the

defendant ‘‘would testify that he caught [A and K] engaging in sexual relations and that he told [B] . . . of this

suspected activity and that . . . with [the] permission

of [B] the defendant . . . set up a video . . . to taperecord any inappropriate activity with [A and K] . . . .’’

Grogins maintained that the defendant would assert

that the inappropriate activity that was ongoing up until

the time of this incident or within forty-eight hours of

this incident was the cause of A’s vaginal tears. She

also argued that recently disclosed discovery indicated

that a social worker4 had reported that A acknowledged

that the defendant was not getting along with others

in the household and that B was investigating the defendant’s allegations of sexual contact between A and K.

Grogins asserted that this information was admissible

under the first and fourth exceptions to the rape shield

statute because it was relevant to the defendant’s theory

that A’s fabrication of the allegations against the defendant was motivated by her desire to prevent the discovery that she and K were having sexual intercourse.5

The state argued that nothing proffered by defense

counsel was relevant to the source of A’s injury. It noted

that Grogins’ failure to identify the time period in which

A and K had allegedly been engaged in sexual intercourse prevented the state from establishing whether

the alleged sexual acts between A and K were too

remote in time from the charged incident. The state

further argued that nothing on the videotape, which it

previously represented would not be admitted during

trial because it did not contain any relevant footage,

suggested that A and K were having sexual intercourse,

and that A had never claimed to have had sexual intercourse with K, only with a different brother. It stated

that the defendant was the only person who had claimed

that A and K were having sexual intercourse and that

he offered no proof to show that it actually occurred.

The state then argued that the defendant had failed to

satisfy the five factor test set forth in State v. Rolon,

supra, 257 Conn. 183–84.

Grogins responded that, to satisfy the source of injury

exception, the defendant would testify that he had

observed recent sexual activity between A and K. When

the court asked if the defendant wanted a hearing at

that time, Grogins pointed to the social worker’s report,

which indicated that A had stated that K and the defendant did not get along because the defendant alleged

that K was touching A. The court then asked defense

counsel if K was ready to be offered as a witness to

support their theory, and Grogins responded that the

defendant would be the only one to offer that evidence.

Defense counsel Steven Jacobson then stated that

they were not prepared for a hearing at that time. Jacob-
son argued that ‘‘the witnesses we would need to present, which would include [B], will be here for the trial,

and it . . . wasn’t presented to us that we should

appear with witnesses this afternoon, ready . . . to

present on this issue, because as the rule itself says, it

talks about basically having these hearings, in effect,

during trial . . . .’’ He then asked, based on the offer

of proof, that the court allow the witnesses to testify

before the jury, then hold the hearing outside the presence of the jury and make a decision at that time. The

state also asked that any questions related to the offer

of proof be asked outside the presence of the jury. The

court stated that it was prepared to rule on the motion

at that time, but that the parties could ‘‘always revisit

issues based upon certain evidence during the course

of the trial . . . .’’ It then asked if defense counsel

wanted the court to hold its decision on any particular

issue until it arose.

At that point, the state interjected, stating that Cicero,

the physician who examined A, would not be testifying

until after A and B had testified. Jacobson expressed

a concern that they would not be able to cross-examine

A and B regarding the defendant’s theory that K was

the source of A’s injuries because there would not be

any evidence concerning A’s injuries when they testified. When the court asked defense counsel what they

wanted the court to do, Jacobson reiterated that their

offer of proof was that the defendant would testify that

he caught A and K in sexually inappropriate conduct

within several days before the incident. When the court

indicated that defense counsel could conduct the hearing at that time with the defendant as a witness, Jacobson resisted, stating ‘‘our problem is, putting the

defendant on now doesn’t get us there because we need

what [A] would say and [B] would say to . . . make

our proof, which is why I believe we should do it

through the court . . . .’’ (Emphasis added.) The court

asked Jacobson if the defendant was the source of the

information regarding any sexual improprieties

between A and K. Jacobson responded that the defendant was the source of the information, but that A and

B might be a source of information as well. The court

responded, ‘‘it was advanced to this court by way of

argument, several arguments, that [the defendant] was

the one who . . . identified this issue among the siblings, and as a result, whatever was set up, he set it up,

and you indicate [that] there’s no tapes to support any,

at least videotaping any conduct, and you ask the court

now to make a finding that . . . something has happened clearly . . . . I am not persuaded at this time

that that evidence is going to be allowed.’’

The court again asked if defense counsel was ready

to proceed on their motion, noting that the motion had

asked for the hearing and that hearings usually require

evidence from the witness stand. They indicated that

they were not ready because their perception was that
the hearing would take place during trial. The court

told defense counsel to proceed on their motion. After

initially denying their request for additional time, the

court granted their request for a short break to allow

defense counsel an opportunity to explain to the defendant what was happening.

After the break, the defendant elected to proceed on

his motion and testified to the following. Three days

prior to his arrest, when the defendant had come out

of the bathroom at B’s apartment, he saw A and K

in the living room in an awkward position, and there

appeared to be inappropriate touching. In an immediate

response, the defendant pressed ‘‘record’’ on his cell

phone and left it on the table in front of the doorway

to the kitchen while he took a shower. After his shower,

the defendantlistened to the recording, which ‘‘sounded

like intercourse, moaning, sex,’’ then confronted A with

it. After she listened to the recording, A told the defendant that a couple of months prior, K had come into

her room and had had sexual intercourse with her, that

they had been having sexual intercourse ever since, and

that they had been having sexual intercourse while the

defendant was in the shower.6 When B returned home

from work, the defendant told B what he had seen and

let her listen to the recording. When B confronted A,

however, she denied having sexual intercourse with K.

Afterward, B spoke to the defendant and they purchased a surveillance camera.

After the defendant concluded his testimony, the

court asked if there was any additional testimony that

either party wanted to offer. The state notified the court

that the recordings from the defendant’s cell phone

had been tested and that the results did not match the

defendant’s claim, but that a laboratory technician was

not available to testify, only the state’s investigator, who

spoke to someone from the laboratory on the telephone.

Defense counsel objected because they did not have

the test results, and the state subsequently conceded

that it had no evidence to offer.

Counsel then made closing arguments. Jacobson

argued that the defendant’s testimony about A’s statement that she had had sexual intercourse that day with

K was relevant to both subdivisions (1) and (4) of § 54-

86f, the rape shield statute. A’s statement was relevant

to the exception in subdivision (1) of § 54-86f because

it explained the medical evidence, which stated that

the injuries to A were up to seventy-two hours old.

Defense counsel further argued that the defendant’s

testimony was relevant to the exception in subdivision

(4) of § 54-86f because A ‘‘now knows, according to

[the defendant], that three days before this incident,

where we would claim she fabricated the sexual assault,

that [the defendant] ha[d] gotten an admission from her

that she [admitted] sexual assault by [K]. That would

be a motive of [A] to want [the defendant] to be arrested
and out of the household. [B] also has a similar motive.’’

Jacobson argued that the questions sought to be asked

were admissible because the defendant could impeach

the testimony of A and B if they contradicted the defendant’s claim.

The state argued that the defendant had not satisfied

his burden because he had not demonstrated that the

prior act had clearly occurred. The state continued:

‘‘According to the defendant, he saw somebody in an

awkward position and an inappropriate touching. There

was no specificity on what acts he’s claiming occurred,

no acts at all, except [that] there was an inappropriate

touching and in an awkward position. That’s the only

thing he . . . said that happened. . . . And [A],

according to the defendant, said certain things; however, [she] has denied it to all law enforcement since

the day he claimed this at the scene. . . . I think . . .

the two main arguments [are] that the prior acts did

not clearly [occur], because everybody’s denying it. It’s

the defendant offering self-serving hearsay as to what

he can testify to on the stand. [A] has never claimed

any of this. And . . . we’re also touching upon an issue

that the rape shield statute was intended to [protect].

The legislative intent of that statute was to not embarrass a victim of whatever age, to just throw in anything

that you think could possibly be brought up to embarrass her. The statute was . . . intended to prevent that,

and the probative value of the evidence that they submit

must outweigh its prejudicial effect. And [the state does

not] believe that the evidence [defense counsel is]

intending to admit, that has no basis except what the

defendant claims, is [anything] but prejudicial to the

victim in this case.’’

The next day, on February 29, 2008, prior to the start

of evidence, the court denied the motion. The court

found that, based on the defendant’s testimony of what

he saw and did not see, the facts did not support a

continuing evidentiary hearing. It found that the prior

acts had not clearly been defined, that they did not

resemble the present case and that they were not clearly

relevant to a material issue. The court continued: ‘‘[T]he

evidence is not . . . necessary to the defendant’s case

. . . based upon the facts presented . . . . And certainly, the probative value of the evidence does not

outweigh its prejudicial effect. We have an . . . eleven

year old child and . . . inferentially, the court has

[been] asked pursuant to § 54-86f to have a discussion

in this court about sibling sex. That will not be allowed,

it is not relevant. There is no reference to sibling sex

among these children unless you say, Judge, I have to

ask it. I will excuse the jury, and I’ll hear your offer at

the time.’’

Although not discussed by the majority or disputed

by the parties, it is important to note, as will become

apparent, that the defendant’s initial offer of proof, by
way of his written motion and oral argument, satisfied

his preliminary burden.7

‘‘In the first step of [the] two

part process [set forth in § 54-86f], the defendant bears

the burden of showing that the proffered evidence overcomes the presumption, inherent in § 54-86f, that evidence of the sexual conduct of a rape victim is

inadmissible and satisfies the statute’s requirement that

only evidence relevant to the case, rather than evidence

relevant merely to demonstrate the unchaste character

of the victim, be admissible.’’ State v. Smith, 280 Conn.

285, 296, 907 A.2d 73 (2006). ‘‘The showing must be

sufficient to enable the trial court to make an informed

ruling in connection with the exercise of its discretion

on the issue. That showing must be made as part of

the offer of proof as a prerequisite to obtaining an

evidentiary hearing to determine the admissibility of

evidence of the victim’s prior sexual conduct.’’ State v.

Manini, 38 Conn. App. 100, 114, 659 A.2d 196, cert.

denied, 234 Conn. 920, 661 A.2d 99 (1995).

‘‘Offers of proof are allegations by the attorney . . .

in which he represents to the court that he could prove

them if granted an evidentiary hearing. . . . The purpose of an offer of proof has been well established by

our courts. First, it informs the court of the legal theory

under which the evidence is admissible. Second, it

should inform the trial judge of the specific nature of

the evidence so that the court can judge its admissibility. Third, it creates a record for appellate review. . . .

Additionally, an offer of proof should contain specific

evidence rather than vague assertions and sheer speculation.’’ (Citation omitted; internal quotation marks

omitted.) State v. Martinez, 295 Conn. 758, 771, 991

A.2d 1086 (2010). The offer of proof can be made by

the testimony of a witness in the absence of the jury

or by a good faith representation by counsel of what

the witness would say if questioned. See C. Tait & E.

Prescott, Connecticut Evidence (4th Ed. 2008) § 1.29.4,

p. 77.

In the initial motion and during argument, the defendant proffered documentary and testimonial evidence

to support his position that A and K had engaged in

sexual intercourse three days prior to the incident for

which he was charged and that his revelation of this

inappropriate sexual contact between the siblings

prompted A and B to fabricate the story that the defendant had sexually assaulted A so that they could hide

the accusations.8

In the motion, he identified a medical

report and expert witness disclosure that indicated that

A’s injuries had occurred within three days of the incident, and a social worker’s report which stated that B

had informed her that the defendant had made such

accusations, as well as making the representation that

a surveillance camera had been purchased by B to monitor her children’s behavior. During argument on the

motion, defense counselrepresented that the defendant

would testify that he caught A and K having ‘‘sexual
relations.’’ This proffer was sufficient to satisfy the first

step in the two step process and necessitated the evidentiary hearing, which the court held.

Having established that the offer of proof was sufficient to entitle the defendant to a hearing, I nevertheless

disagree with the majority’s conclusion that the defendant’s proposed testimony, submitted during the hearing, or the proposed questioning of A, K and B were

both relevant and more probative than prejudicial.9 The

purpose of a hearing pursuant to the rape shield statute

‘‘is to assist the trial court in making its determination

regarding whether the evidence is relevant to the case

and falls within one of the statute’s exceptions, and

whether its probative value outweighs the prejudicial

impact on the victim.’’ State v. Smith, supra, 280 Conn.

298. Moreover, ‘‘a clear statement of the defendant’s

theory of relevance is all important in determining

whether the evidence is offered for a permissible purpose.’’(Internal quotation marks omitted.) State v. Cecil

J., 291 Conn. 813, 825, 970 A.2d 710 (2009).

I take issue with the majority’s analysis primarily for

two reasons. First, in making its determination of the

admissibility of the defendant’s testimony pursuant to

the rape shield statute, the majority does not limit its

analysis to testimony that would be admissible under

the rules of evidence. The purpose of the rape shield

statute is to prohibit the introduction of otherwise

admissible evidence of the sexual conduct of a victim

because it is highly inflammatory. Rather than create

an alternate vehicle for admissibility, therefore, the rape

shield statute imposes an additional bar to the admission of proposed evidence that falls under its purview.

The rape shield statute does not suspend the rules of

evidence to allow, for example, inadmissible hearsay,

just because such evidence would be relevant or more

probative than prejudicial to an issue at trial. Nevertheless, the majority implicitly does just that.

In its recitation of the defendant’s relevant testimony,

the majority cites his statements that ‘‘he had observed

A and K in an awkward position, had seen them inappropriately touching, had heard ‘moaning’ and other sounds

on the cell phone recording suggesting they were having

sexual intercourse, had been told by A that she and K

were ‘having sex’ while the defendant was in the

shower, and, after informing B about what he had seen

and heard, had accompanied B to a department store

where she purchased a video surveillance camera.’’10

The majority fails to acknowledge, although argued by

the parties and noted by the court in its ruling, that A’s

alleged admission that she andKhad been having sexual

intercourse is inadmissible hearsay.11 Indeed, the majority relies on this inadmissible hearsay to determine that

the proposed testimony was both relevant and more

probative than prejudicial.12 Such inadmissible hearsay

should not be considered by the trial court or this court
in determining whether the defendant proffered any

admissible evidence of the prior sexual conduct of A

pursuant to the rape shield statute. The only evidence

that should be considered by a court when determining

the admissibility of the prior sexual conduct of a victim

pursuant to the rape shield statute is evidence that also

would be admissible pursuant to the rules of evidence.13

My second issue with the majority opinion is that it

combines, as did the defendant, all of the testimony as

it pertains to both exceptions when determining admissibility pursuant to the rape shield statute, rather than

considering only the evidence that was applicable to

each exception. By doing so, the majority is able to

conclude that all of the evidence is relevant and more

probative than prejudicial. If, however, one looks at the

proposed testimony that would have supported each

exception separately, after determining which parts of

the proposed testimony would have been admissible

pursuant to the rules of evidence, the correct conclusion is that the proposed testimony for each exception

was inadmissible under the rape shield statute, albeit

for different reasons and, thus, any questioning related

to those exceptions was also inadmissible.

Careful scrutiny of the record reveals that there was

no relevant evidence submitted to support the defendant’s contention that K was the source of A’s injuries.

In his offer of proof, the defendant proffered that the

source of A’s injuries was the alleged sexual intercourse

that A had engaged in with K three days prior to the

defendant’s arrest, while he had been showering. Thus,

he was required to provide relevant evidence that A

and K had engaged in sexual intercourse, not at some

undefined time, but during the time that he was in the

shower, three days prior to his alleged assault of A.

The defendant’s testimony pertinent to this exception

was that prior to taking his shower, the defendant witnessed A and K in an awkward position and that there

was inappropriate touching. While the defendant was

showering, he recorded sounds on his cell phone. After

his shower, the defendant listened to the recording and

heard sounds that he characterized as moaning and sex.

These statements are not relevant evidence, inferential or otherwise, that A and K had actually engaged in

sexual intercourse while the defendant was showering.

At most, these ‘‘facts’’ support the defendant’s position

that he merely believed that A and K had engaged in

sexual intercourse. ‘‘Inferences to be drawn from the

facts proved must be reasonable and logical, and the

conclusions based on them must not be the result of

speculation and conjecture.’’ Palmieri v. Macero, 146

Conn. 705, 708, 155 A.2d 750 (1959). Contrary to what

defense counsel proffered during argument on the

motion, the defendant did not testify that he saw A and

K engaged in sexual intercourse or any act resembling

sexual intercourse in the time period prior to or after
his shower nor did he describe their appearance, clothing or mannerisms after taking his shower. Moreover,

there was no evidence other than the defendant’s statements of his conclusions that the purported sounds on

the cell phone recording were the sounds of A and K

having sexual intercourse. Thus, based on the facts

presented during his testimony, any conclusion that A

and K were engaged in sexual intercourse while the

defendant was showering would be the result of speculation and conjecture.

Moreover, at no point in the proceedings did defense

counsel ever proffer that A would testify that she and

K had been engaged in inappropriate touching that day,

that she had engaged in sexual intercourse that day

with K, that she had told the defendant that she and K

had engaged in sexual intercourse on that day or that

she had heard the cell phone recording. In fact, Jacobson implicitly admitted that he did not know what A’s

testimony would be and, when presented with the

opportunity to present additional witnesses, declined

to do so. Because the defendant did not proffer or

submit any evidence to corroborate the defendant’s

testimony regarding the sounds on the cell phone

recordings and no other witness testified, the court

essentially was left with only the defendant’s unsubstantiated beliefs that he had heard noises he associated

with sex on his cell phone and that A and K had engaged

in sexual intercourse while he was in the shower. Such

beliefs were not relevant to the issue of the source of

A’s injuries, as they did not tend to prove whether A

actually had sexual intercourse with K while the defendant was in the shower. See State v. Brauneis, 84 Conn.

222, 233, 79 A. 70 (1911) (defendant’s testimony about

his belief regarding complainant’s behavior properly

excluded, as his belief did not tend to prove complainant engaged in behavior);14 see also State v. Williams,

20 Conn. App. 263, 269–70, 565 A.2d 1365 (1989) (court

properly excluded questions of whether victim had been

sexually active during three days priorto incident where

victim and mother testified during hearing that victim

was not sexually active but defendant testified that he

believed that she was). Although it is true that § 54-86f

‘‘encompasses inferential as well as direct evidence of

sexual conduct’’; State v. Rinaldi, 220 Conn. 345, 354,

599 A.2d 1 (1991); a defendant’s belief about the sexual

conduct of a victim does not tend to prove that conduct,

and is not, therefore,relevant. Compare id., 354–55 (witness’ proposed testimony regarding admissible statements complainant had made and her appearance after

exiting woods with third person constitute inferential

evidence of sexual conduct); see also State v. Jones, 8

Conn. App. 44, 48, 510 A.2d 467 (1986) (‘‘§ 54-86f limits

proof to evidence of sexual conduct, which phraseology

. . . permit[s] only specific instances of conduct and

prohibit[s] all proof ofreputation or personal opinion of

the victim’s sexual conduct’’ [emphasis added; internal
quotation marks omitted]).

In addition, none of the documentary evidence relied

on by the defendant in his offer of proof actually suggested that A and K had engaged in sexual intercourse

at any time or that A would disclose that she and K

had sexual intercourse.15 The social worker’s report

noted that A denied the defendant’s allegations and

referenced police reports that stated that there was no

evidence of A and K being sexually involved. Thus, even

if one could conclude that the defendant’s testimony

was relevant to his claim that A and K had sexual intercourse while he was in the shower three days prior to

his arrest, given the remainder of the evidence that was

before the court, these unfounded allegations would

have been more prejudicial than probative, and his testimony was simply not sufficient to overcome ‘‘the presumption, inherent in § 54-86f, that evidence of the

sexual conduct of a rape victim is inadmissible . . . .’’

State v. Smith, supra, 280 Conn. 296. Thus, the court

did not abuse its discretion in denying the defendant’s

initial motion under this exception.

With respect to the fourth exception to the rape shield

statute, the defendant’s theory was that A and B fabricated the allegations against him after he informed them

of his discovery that A and K were having sexual intercourse in order to cover up his discovery. The defendant’s testimony pertinent to this exception was that

he told A and B about his suspicions and that after B had

a conversation with A, the defendant and B purchased

a video camera to monitor A and K. Although such

testimony was relevant to a portion of his theory, that

he suspected A and K were having sexual intercourse

and that he informed A and B of his suspicions, such

evidence was more prejudicial than probative because

the rest of his theory was contradicted by the record.

Thus, any testimony by the defendant, A, or B on this

issue was properly deemed inadmissible.

The contradictory evidence in the record significantly

weakens the probative value of the defendant’s proposed testimony. As I previously concluded, there was

no admissible evidence that A and K had engaged in

sexual intercourse three days prior to the defendant’s

arrest. The state also represented during argument that

A had always denied having sexual intercourse with K.

Moreover, the social worker’s report revealed that both

A and B had told the social worker that the defendant

had made these accusations about A and K having sexual intercourse, and that B had told police officers about

the defendant’s allegations. If the purpose of accusing

the defendant of sexual assault was to cover up the

defendant’s alleged discovery of A and K having sexual

intercourse, it is unlikely that A and B would have

repeated his accusations to both police officers and a

social worker. See State v. Kulmac, 230Conn. 43, 56, 644

A.2d 887 (1994) (concluding that court did not violate
defendant’s right to confront witnesses by excluding

evidence of prior sexual conduct when record did not

support defendant’s claim that victims falsely accused

him of assaults perpetrated by others in order to shield

others from harm where victims disclosed other perpetrators to police, and other perpetrators had been convicted at time of defendant’s trial). Given the fact that

there was no admissible evidence of A and K engaging

in sexual intercourse, and that there was evidence indicating that A and B were not attempting to cover up

the defendant’s allegations, the defendant’s proposed

testimony about his alleged discovery and any questions

to A and B about his allegations were more prejudicial

than probative.16 Thus,the court did not abuse its discretion in denying the initial motion pursuant to this

exception.17

II

The defendant’s second offer of proof occurred during the cross-examination of B, who was the second

witness to testify. During the cross-examination of B,

Grogins requested that the jury and B be excused so

that she could make an offer of proof. When the court

asked what the offer of proof was, Grogins stated: ‘‘I

want to ask about [the defendant] being concerned

about the behavior of the children. I want to ask about

the fact that [B] was also concerned about the behavior

of her children, without getting into why. And I want

to ask about the fact that [B] was so concerned that

she went out and bought a video surveillance camera,

so she could monitor her children’s behavior.’’ When

the court asked how such questioning was relevant to

B’s testimony about what she had seen on the night of

the incident, Grogins responded that it implicated her

motive, bias and interest to testify against the defendant

for making claims about her children. The state then

argued that those questions were irrelevant to B’s testimony about what she claimed to have witnessed and

the court’s prior ruling barred the proposed questions.

The court ruled that the line of questioning was not

relevant.

The court’s ruling was proper because the defendant

did not make a sufficient offer of proof that warranted

a different result. In contrast to his initial offer of proof,

when the defendant identified what the proposed testimony would be as well as documentary evidence to

support his position, at the second offer of proof, Grogins did not provide the court with anything beyond what

had been presented at the hearing. She did not proffer

what B’s testimony would be. Even though B was on

the stand when Grogins asked to make her offer of

proof, she never requested a hearing so that B could

testify outside the presence of the jury. Rather than

providing any additional evidence to support the defendant’s proffer, Grogins only requested that the court

allow her to ask B questions in the presence of the jury.
Because the defendant’s proffer did not ‘‘inform the

trial judge of the specific nature of the evidence so that

the court [could] judge its admissibility’’ or ‘‘contain

specific evidence rather than vague assertions and

sheer speculation’’; (internal quotation marks omitted)

State v. Martinez, supra, 295 Conn. 771; the court did

not abuse its discretion in denying the defendant’s

request to question B with respect to the defendant’s

allegations of sexual intercourse between A and K.

III

The final offer of proof took place after the direct

examination of A, the third witness to testify. Before

the cross-examination of A began, on March 3, 2008,

the court addressed the defendant’s motion to reconsider its rulings with respect to all of his claims initially

brought by way of his first motion.18 The defendant

requested permission to testify about his observations

of ‘‘inappropriate sexual behavior between [A] and [K]

within three days of the accusation made against him,’’

about the recorded ‘‘sounds of interactions between [A]

and [K] three days before the accusation in this case

that were consistent with the sound of persons engaging

in sexual intercourse,’’ about his confrontation of ‘‘[A]

with the recording and [A] admit[ting]to [the defendant]

that she had just had sexual intercourse with [K] and

had also done so in the past,’’ and about him telling

‘‘[B] about the clear admission of sexual intercourse.’’

The defendant also requested permission to recall B

so that she could be questioned about the defendant’s

statements to her regarding his confrontation with A

and her subsequent actions in arranging for surveillance

of the children. He asked to call K and question him

about being the source of A’s injuries, about his being

alone with A during the three days prior to the alleged

assault and about what K saw and heard during the

date of the alleged assault. The defendant asked for

permission to question A about having sexual intercourse with K, about being alone with K during the

three days prior to the alleged assault, about her knowledge that the defendant had made accusations that she

had had sexual intercourse with K, and about her state

of mind as a motive to fabricate because she did not

want the defendant to continue making such accusations. Finally, the defendant requested permission to

question A and B about A’s failure to disclose that

she had engaged in sexual intercourse with her oldest

brother two years prior, ‘‘as evidence of a pattern of

covering up interfamilial incest,’’ and about B’s request

that there be no prosecution of the oldest brother once

the conduct was disclosed.

Additionally, in this motion to reconsider, the defendant asserted that his ‘‘whole theory of defense is that

[A] and [B] contrived the accusation in this case to

cover up [the defendant’s] discovery that [A] was having

sexual intercourse with [K].’’ He maintained that evi-
dence supporting this contention was that A had covered up being sexually assaulted by a different brother

two years prior and that B had chosen to waive prosecution. The defendant also averred that he would present

this evidence through his own testimony and the questioning of A, B and K.

During oral argument, Grogins contended that the

questioning of the witnesses and the testimony of the

defendant were necessary to show that someone else

had committed the crime. She reiterated that the defendant’s claim was that ‘‘[B’s and A’s] allegations against

the defendant . . . [were] fabricated to cover up the

. . . ongoing incestual relationship that was taking

place with [K] . . . .’’ The court responded: ‘‘Let’s have

the argument. I’ve heard the argument and I’ve heard

the basis for that from [the defendant] and the alleged

tape and the alleged recording.’’ When defense counsel

asked if the court’s ruling barred the defendant from

calling K to question him about these issues, the court

replied, ‘‘I’m not barring you from calling anybody. You

can call anybody that you like. Testimony in this courtroom must be relevant to the issues at hand, material

. . . . I’ve heard this issue in the past . . . and I want

you to place your theory of relevance clearly on this

record. I have not heard anything that would support

your position that the rape shield statute should afford

this court to allow that testimony at this time.’’

The state also responded: ‘‘As far as [this] motion

goes, we’ve heard everything . . . I don’t think there’s

anything new. In fact, we’re also now wanting to question [A] about hearsay, about what the defendant said

to her, what the defendant thought, and all this other

stuff. It’s not admissible, Your Honor . . . . This is just

the defendant introducing self-serving hearsay in order

to shift the focus . . . . I don’t believe any of this is

admissible.’’

The court then denied the motion, stating: ‘‘There is

no evidence coming . . . into this court regarding any

incestual relationships with [A] and [K], none. . . .

Now, if you want to bring [K] in to make an offer of

proof to preserve it for the appellate record . . . that’s

up to you . . . . What I’ve heard does not support in

any form orfashion that evidence coming into the courtroom of law as it has any bearing on the issue here at

hand, nothing. . . . [T]hat’s the rape shield statute and

the reason that the legislature has decided to implement

the statute. It’s clearly a wholesale assault . . . [and]

it has no bearing. If it had some relevance, I would

allow it. I would. . . . All that is . . . speculation . . .

and hearsay and not admissible—even under most evidentiary rulings it wouldn’t be admissible.’’ (Emphasis added.)

Grogins then made a record of the questions that

she would have asked K and A.19 With respect to the

proposed questions for A, the state argued that ‘‘[e]very
question that was just asked is self-serving hearsay

aside from the last one. Everything that was just asked

is self-serving hearsay on behalf of the defendant. She

can’t testify as to what the defendant may have said at

some other time. There’s no exception that fits this,

Your Honor. I’m asking that all of [it] be denied.’’ The

state also clarified thatthe court’s ruling did not prohibit

the defendant from calling anyone as a witness. After

defense counsel responded that the questions set forth

were not hearsay because they were asking for A’s

response, the court ruled. It stated: ‘‘None of those

questions, if proffered in that manner, should be asked

in court in front of the jury to this person. None of

them. They suggest, at least direct, the attention of the

[jury] to areas that this court finds immaterial, irrelevant, confusing, and in no way that support any theory

of relevance I have heard from the defense. The rape

shield statute protects . . . clearly, those issues you

wish to raise. Bias, interest and motive is another issue.

I have not heard those—if those questions were asked

for bias, interest and motive . . . . [H]ere are the facts.

Something happened in that room. The players, as I see

it, are three people . . . . Now, if something bears on

that, I’ll hear it and it will be allowed. I haven’t heard

any of those questions that bear on that. [B], if you

believe her, [A], if they believe her, the person in that

room was one . . . male person and identified as your

client, period. That’s it. Now, whether somebody else

was there before [B] got there, I don’t know, it’s not in

evidence, whether somebody did something else before

[B] got there on that day, I don’t know, that would

impact upon whatever issue you claim you’re being

prohibited from offering, and it is not. Those questions

are not to be offered and will not be in this trial on the

charge of sexual assault in the first degree as it relates

to the evidence I have heard and know of so far, it will

not be.’’

After dealing with other matters, the court returned

to the motion one last time. Jacobson reiterated that

the defendant’s position was that K, rather than the

defendant, had caused the injuries to A and that A and

B had fabricated the allegations against the defendant

to cover up the sexual relationship between A and K.

The court repeated its ruling that the evidence was not

relevant. It stated that the evidence was immaterial,

irrelevant, had no bearing on the trial and would not

be allowed.

In his final offer of proof, the defendant failed, once

again, to proffer any evidence that would have supported his contention that A and K had been engaged

in sexual intercourse or that A and B were attempting

to cover up the defendant’s accusations. The motion

asked to question A, B and K about the alleged events

surrounding the defendant’s accusations, but did not

proffer what the witnesses’ testimony would be. During

oral argument, Grogins made a record of what questions
she would have asked the witnesses in the presence of

the jury, but never once disclosed what their testimony

would be or asked for a hearing so that the court could

evaluate their proposed testimony, even after the court

explicitly indicated that K could testify at a hearing

outside the presence of the jury.20 Faced with the

absence of any evidence to support the defendant’s

theory of relevance, the court correctly denied his

motion to reconsider.

In short, after the court denied his initial motion,

while leaving available to the defendant the opportunity

to make additional offers of proof as the trial progressed, the defendant did not provide the court with

any evidence, potentially relevant or not, that would

have necessitated a change in its ruling. Even though the

defendant was given multiple opportunities to provide

relevant evidence to support his theory, including specifically stating that the defendant could have a hearing

to submit the proposed testimony of K, he failed to do

so. Moreover, the defendant did not renew his request

during his case-in-chief. Although the court improperly

focused on the Rolon factors when articulating its initial

decision, when considering the court’s ruling with every

reasonable presumption in its favor, I cannot conclude

that the court abused its discretion in denying the defendant’s motions because, at its essence, the court found

that the defendant had not presented any admissible

evidence to support his theory, only self-serving hearsay

and conjecture. Although the rape shield statute does

permit the introduction of evidence of a victim’s prior

sexual conduct, including reasonable inferences drawn

from facts, under limited circumstances, it does not

allow a defendant to inject speculation and innuendo

into a trial.

The majority opinion renders meaningless the

requirement of showing evidence of a victim’s prior

sexual conduct and runs contrary to the purposes and

policies advanced by the rape shield statute. See State

v. Christiano, 228 Conn. 456, 472, 637 A.2d 382, cert.

denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36

(1994). Before the decision of the majority in the present

case, defendants were required to provide evidence in

the form of testimony from witnesses or documentation

to overcome the burden imposed on them by the rape

shield statute. A determination of whether the court

had abused its discretion had been based on more than

a defendant’s self-serving statement and proposed questions to the witnesses. See State v. Smith, supra, 280

Conn. 293–95 (defendant proffered DNA report and substance of expert’s testimony in written offer of proof

and proffered proposed expert testimony during hearing); State v. Ritrovato, 280 Conn. 36, 48–49, 905 A.2d

1079 (2006) (defendant proffered proposed testimony

of two witnesses during hearing); State v. DeJesus, 270

Conn. 826, 833, 856 A.2d 345 (2004) (defendant proffered police report and victim’s proposed testimony
during hearing held outside presence of jury); State v.

Kulmac, supra, 230 Conn. 51 (proffered written statement of victim); State v. Rinaldi, supra, 220 Conn. 351

(defendant proffered proposed testimony of complainant’s friend at hearing on motion); State v. Williams,

supra, 20Conn. App. 269 (defendant proffered proposed

testimony of victim and mother).

Because of the holding of the majority opinion, in

order to overcome the heavy presumption of the rape

shield statute which ‘‘was enacted specifically to bar

or limit the use of prior sexual conduct of an alleged

victim of a sexual assault because it is such highly

prejudicial material’’; (internal quotation marks omitted) State v. Ritrovato, supra, 280 Conn. 53; all a defendant need do is state that he believes that the victim

had sexual intercourse with another person and that she

made statements to him confirming this belief, without

submitting or even proffering any evidence that the

prior sexual conduct or the victim’s alleged admission

actually took place. A defendant can now concoct an

unverified narrative, knowing or, as in the present case,

having a good faith belief, that the victim will deny

the unsubstantiated allegations.21 He can question the

victim about his groundless assertions, thus, allowing

the jury to speculate about the sexual propensity of the

victim. Moreover, even if the victim denies the allegations during examination, the defendant will be able

to use the mere introduction of the topic in closing

argument to attack inappropriately the credibility of

the victim. This is precisely what the rape shield statute

intended to prevent.

The majority attempts to soften its decision by concluding that the testimony of A, B and K regarding the

prior sexual conduct of A can be elicited only during

the defendant’s case-in-chief after a proper foundation

has been laid. Ostensibly, that foundation would be laid

by the defendant’s testimony before the jury at trial.

Moreover, by allowing this defendant to question in

front of the jury A, B, and K based on his own selfserving statements that are primarily based on inadmissible hearsay and unsubstantiated beliefs, we are diluting the defendant’s burden under the rape shield statute

to the detriment of all victims of sexual assault. ‘‘Requiring, as the statute does, that the strong policies . . .

be overcome only by evidence which does not have the

inherent infirmity of reputation or lay opinion evidence

. . . can hardly be viewed as violating [a] defendant’s

constitutionalrights to confront the victim or to present

a defense.’’ (Emphasis added.) State v. Jones, supra, 8

Conn. App. 48. This result cannot be what the legislature

envisioned when it enacted the statute. Accordingly,

I dissent.

1 For ease of discussion, I set forth the procedural facts of each offer of

proof, followed by an analysis of the court’s ruling. I emphasize, however,

that I consider the offers of proof collectively to arrive at my conclusion

that the court properly concluded that the defendant did not meet his burden

of demonstrating that the proffered testimony was admissible under an
exception to the rape shield statute, General Statutes § 54-86f.

2 See footnote 4 of the majority opinion.

3 General Statutes § 54-86f provides: ‘‘In any prosecution for sexual assault

under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence

of the sexual conduct of the victim may be admissible unless such evidence

is (1) offered by the defendant on the issue of whether the defendant was,

with respect to the victim, the source of semen, disease, pregnancy or injury,

or (2) offered by the defendant on the issue of credibility of the victim,

provided the victim has testified on direct examination as to his or her

sexual conduct, or (3) any evidence of sexual conduct with the defendant

offered by the defendant on the issue of consent by the victim, when consent

is raised as a defense by the defendant, or (4) otherwise so relevant and

material to a critical issue in the case that excluding it would violate the

defendant’s constitutional rights. Such evidence shall be admissible only

after a hearing on a motion to offer such evidence containing an offer of

proof. On motion of either party the court may order such hearing held in

camera, subject to the provisions of section 51-164x. If the proceeding is a

trial with a jury, such hearing shall be held in the absence of the jury. If,

after hearing, the court finds that the evidence meets the requirements of

this section and that the probative value of the evidence outweighs its

prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under

this section may not be used against the defendant during the trial if such

motion is denied, except that such testimony may be admissible to impeach

the credibility of the defendant if the defendant elects to testify as part of

the defense.’’

4 Grogins did not identify the social worker during oral argument; however,

in the discovery packet that she had asserted was the basis for the motion,

there was only one social worker report.

5 Grogins also identified subdivision (2) of § 54-86f, which allows the

defendant to offer evidence on the issue of the credibility of the victim,

provided the victim has testified on direct examination as to her sexual

conduct. See footnote 3 of this dissenting opinion. That subdivision, however, was not raised again during arguments.

6 The state objected to the question that elicited that portion of the defendant’s testimony in which he stated that A had told him that she and K had

been having sexual intercourse for several weeks on the ground of hearsay.

The question posed to the defendant was: ‘‘And did she say anything with

regard to that?’’ Defense counsel responded that it went to the defendant’s

state of mind as to what he did next and to A’s statement to him. After the

court heard the answer, it struck that portion of the defendant’s testimony.

7

I disagree with the majority’s assertion that the defendant is not required

to allege detailed facts to satisfy his preliminary burden that the proffered

evidence was relevant. Such a showing is exactly what the defendant must

make in his offer of proof. See C. Tait & E. Prescott, Connecticut Evidence

(4th Ed. 2008) § 1.29.4, p. 76 (when making offer of proof, ‘‘counsel should

. . . [state] the purpose of the offer and [disclose] the content or purport

of the expected testimony’’ [emphasis added]).

8

In acknowledging that the defendant proffered documentary and testimonial evidence that purported to support his position, I do not agree that the

evidence actually did so. Rather, I highlight the sufficiency of the first step

of the process in order to underscore the disconnect between what was

proffered in his motion and what was presented to the court during the

hearing.

9 As support forits contention that the evidence proposed by the defendant

at the hearing satisfied his burden to demonstrate that the proposed evidence

satisfied one of the exceptions to the rape shield statute, the majority inaccurately attempts to use the fact that I acknowledge that the offer of proof

was sufficient to warrant a hearing. The majority does not appear to appreciate the nuances of my argument. The offer of proof is merely a ‘‘preliminary

showing that the evidence sought to be explored in the evidentiary hearing

is relevant. . . . That showing must be made as part of the offer of proof

as a prerequisite to obtaining an evidentiary hearing to determine the

admissibility of evidence of the victim’s prior sexual conduct.’’ (Emphasis

added.) State v. Manini, supra, 38 Conn. App. 114. By focusing on the fact

that I conclude that the defendant satisfied his burden on the written offer of

proof, and ignoring the substance of my analysis—that the actual proposed

evidence put forth during the hearing, as opposed to the representations

made during argument of ‘‘the evidence the defendant intended to introduce’’—was insufficient for admissibility under the rape shield statute, the
majority misses my point.

It is unclear whetherthe majority is conflating the relevancy determination

that is made during the defendant’s preliminary offer of proof with the

relevancy determination that is made after a hearing, or simply overlooking

it. An offer of proof consists of allegations that an attorney represents he

could prove if granted an evidentiary hearing. State v. Martinez, supra, 295

Conn. 771. Thus, at the offer of proof stage, the relevancy determination is

based only on the attorney’s representations. The hearing, however, is a

defendant’s opportunity to present to the court the evidence sought to be

introduced. The defendant must, at that juncture, prove the relevance of

the actual proposed evidence. State v. Smith, supra, 280 Conn. 298. Just

because a defendant satisfies the initial burden during the offer of proof

does not necessarily mean that the evidence is admissible. A defendant must

satisfy both relevancy inquiries in order for the proposed evidence to be

admissible. And, as I explain subsequently in this opinion, because the

defendant’s testimony did not conform to his attorneys’ representations of

what the evidence would be, and because the substance of the defendant’s

testimony failed to overcome the burden of the rape shield statute, any

questioning of the witnesses about this issue would be improper.

Moreover, the majority’s assertion that the trial court did not conduct a

sufficient hearing because it precluded the defendant from calling A, B and

K fails to take into account, as does the entire opinion, the complete record

in order to support its theory. Even presuming that the initial hearing was

insufficient, the majority ignores the fact that the defendant failed to take

advantage of numerous opportunities to seek an additional hearing. See

footnote 17 of this dissenting opinion. If the hearing was insufficient, it was

the defendant’s doing.

10 Query why the majority characterizes this testimony as ‘‘allegations,’’

as allegations are commonly referenced in the absence of evidence. See

Black’s Law Dictionary (9th Ed. 2009) (allegation defined as ‘‘[s]omething

declared or asserted as a matter of fact, esp[ecially] in a legal pleading; a

party’s formal statement of a factual matter as being true or provable,

without its having yet been proved’’).

11 The majority recites irrelevant procedural history following the trial

court’s initial hearsay ruling and ignores the rest of the record. When the state

argued that much ofthe defendant’s testimony was inadmissible hearsay, and

particularly that A’s alleged admission about having sexual intercourse with

K for several weeks was hearsay, defense counsel responded that her statement was an admission by a party opponent and that it went to the state

of mind of what the defendant did next. The first exception does not apply

to A’s statement because she was not a party to the action. See Conn. Code

Evid. § 8-3 (1). The second exception, arguably the state of mind exception,

does not apply because it only goes to the declarant’s state of mind, not

the listener’s. See Conn. Code Evid. § 8-3 (4). Thus, no hearsay exception

was argued to the court and the statement is inadmissible hearsay. During

argument on the defendant’s motion to reconsider, the state repeatedly

objected to the introduction of any out-of-court statements of A because

they were hearsay and no exception applied. The trial court agreed, stating:

‘‘If it had some relevance, I would allow it. . . . All that is . . . speculation

. . . and hearsay and not admissible—even under most evidentiary rulings

it wouldn’t be admissible.’’ Thus, the trial court clearly made an unchallenged

ruling regarding the inadmissibility of A’s statements.

Moreover, by arguing that the trial court only made a ruling on the relevancy of A’s statements, the majority appears to imply that a trial court

cannot rule evidence inadmissible on more than one ground. Even if the

trial court did rule that the evidence submitted through the defendant’s

testimony was not relevant, such a holding does not and, indeed, did not

preclude it from also excluding the evidence on the ground that it was

inadmissible hearsay.

12 In a further effort to justify the allowance of inadmissible hearsay, the

majority claims that ‘‘[i]f A testified initially that she did not tell the defendant

that she had had sexual intercourse with K while the defendant was in

the shower, the defendant could have impeached her testimony with his

testimony that she admitted to having sex with K after the defendant confronted her with the cell phone recording.’’ In doing so, the majority fails

to cite to the rule of evidence which states that a witness’ testimony can

be impeached with inadmissible hearsay.

13 The majority appears to assume that I am claiming that it solely relied

on the defendant’s testimony of A’s inadmissible hearsay to come to its

conclusion that the defendant’s testimony was relevant. This is not correct.
When the majority addresses the state’s argument that the court correctly

precluded the proffered evidence because ‘‘only by means of impermissible

speculation could the jury have found that A’s injuries were the result of

prior sexual conduct with K,’’ it, erroneously in my opinion, considers all

of the defendant’s testimony, including the inadmissible hearsay statement

of A’s alleged admission and irrelevant testimony such as the defendant

accompanying B to purchase a video camera. This is an incorrect way to

view the evidence and the court’s legal conclusion.

14 Although the rape shield statute was enacted in 1982; Public Acts 1982,

No. 82-230; even in 1911, unsubstantiated beliefs about the victim’s prior

sexual conduct were not admissible.

15 I observe that the majority fails to discuss the documentary evidence

submitted by the defendant in his offer of proof when analyzing whether

he has met his burden of proving the admissibility of the evidence of A’s

prior sexual conduct.

16 This court has also held that the failure to produce some evidence

during the offer of proof and hearing that contradicts a victim’s claim that

she had not engaged in sexual intercourse rendered the defendant’s proffered

evidence of the victim’s prior sexual acts irrelevant to understanding her

motive or bias to fabricate. See State v. Crespo, 303 Conn. 589, 604–605, 35

A.3d 243 (2012); see also State v. Siering, 35 Conn. App. 173, 177–78, 644

A.2d 958 (court did not abuse discretion in denying defendant’s request to

admit evidence of prior sexual conduct of victim where defendant proffered

no evidence that contradicted victim’s testimony regarding source of injury),

cert. denied, 231 Conn. 914, 648 A.2d 158 (1994). In the present case, the

defendant would have needed to provide evidence that contradicted the

statements contained in the social worker’s report and the representations

of the state. After his testimony, the court gave the defendant an opportunity

to submit the proposed testimony of additional witnesses who could have

produced such contradicting evidence, and he failed to take advantage of

the opportunity. Thus, inquiry before the jury into this issue also would

have been irrelevant.

17 The majority’s assertion that the court did not allow the defendant to

question A, B and K when the defendant made his offer of proof is flatly

contradicted by the record. The record is replete with instances of the

defendant choosing not to move forward with a hearing and the testimony

of A, B and K. Those instances include: (1) Jacobson indicating that B would

be necessary and that they were not ready for a hearing at that time; (2)

the court asking Grogins before the hearing if she intended to offer K as a

witness during the hearing, and her stating that the defendant would be the

only one to testify;(3)the court explicitly asking, afterthe defendant testified

at the hearing, if there was any other evidentiary testimony, and Grogins,

again, declining; (4) during cross-examination of B, Grogins asking that B

be excused before making an offer of proof, but never asking for a hearing;

and (5) on the motion for reconsideration, the court explicitly stating, ‘‘Now,

if you want to bring [K] in to make an offer of proof to preserve it for the

appellate record . . . that’s up to you.’’

18 The motion to reconsider also sought reconsideration of the court’s

ruling with respect to the defendant’s motion for presentation of third party

culpability evidence, as both motions sought the introduction of the same

evidence.

19 Grogins noted that she would ask K: ‘‘If he had sex with [A] in the last

three days, prior to the defendant’s arrest, if he had an ongoing sexual

relationship with [A], if [B] was aware of it, if it was brought to their attention

by the defendant, if . . . he was aware that there was video surveillance

of their behavior that was instituted by the defendant for the purpose of

the fact that the defendant found out and confronted them about their . . .

inappropriate sexual behavior.’’ She identified the following questions that

she would ask A: ‘‘I would like to ask . . . [A], if, one . . . the defendant,

ever accused her of having inappropriate behavior with [K], not saying what

the inappropriate behavior is, but if he did. If . . . she has knowledge about

[K] and [the defendant] not getting along. If she . . . was mad at [the

defendant] for what he said about her and [K]. If she thought [the defendant]

was lying about what he said [about the inappropriate behavior]. . . . If

. . . she was aware if [the defendant] told [B] or made [B] aware of the

inappropriate behavior. What was [B’s] reaction, if she knows. . . . If [the

defendant] wasn’t living at your house anymore, then he couldn’t be saying

lies about you. And lastly, [A], did you have sex with anyone other than

[the defendant] three days before this incident?’’

20 The majority’s interpretation, in failing to appreciate the difference
between the trial court’s ruling that evidence of sibling sex is not admissible

in the presence of the jury and its invitation to conduct a further hearing

outside the presence of the jury, renders its reasoning questionable. See

footnotes 9 and 12 of the majority opinion. The trial court’s initial ruling

was that there would be ‘‘no reference to sibling sex among these children

unless you say, Judge, I have to ask it. I will excuse the jury, and I’ll hear

your offer at the time.’’ Thus, the trial court prohibited the defendant from

any questioning about sexual conduct between A and K in the presence of

the jury. The reasonable import of the trial court’s ruling, however, was

that it would entertain an offer of proof and hearing outside the presence

of the jury. Accordingly, the majority’s declarations that the trial court’s

‘‘ruling that the evidence proffered by the defendant was irrelevant and

immaterial prevented the defendant from calling A, B and K to testify at a

further evidentiary hearing regarding the facts alleged in support of his

defense’’ is questionable for two reasons. First, the defendant never again

asked for a hearing whereby A, B or K would testify outside the presence

of the jury. At the second offer of proof, Grogins asked if she could question

B and the court ruled that the line of questioning was irrelevant. At the

third offer of proof, the trial court specifically stated that the defendant

could call K to testify at a hearing.

21 The majority again misconstrues my argument in stating that my only

issue is that the evidence presented by the defendant ‘‘was not sufficiently

precise to prove conclusively that A engaged in sexual intercourse with K

three days before the alleged sexual assault’’ and that I am asking the ‘‘trial

court to decide whether the evidence is sufficient to support the defendant’s

claim that he was not responsible for [A’s] injuries.’’ Instead of addressing,

with any substance or detail, my substantive analysis, the majority simply

characterizes my argument as ‘‘unnecessary hyperbole.’’ My point is that

the defendant did not satisfy the intentionally high burden that the rape

shield statute imposes because the defendant did not put forth evidence

that would allow a fact finder to draw permissible inferences with respect

to his claim under the first exception of the rape shield statute and was not

more probative than prejudicial under the fourth exception. I have never

even intimated that the evidence must be conclusive, I only have stressed

that if a defendant is going to provide inferential evidence of a victim’s prior

sexual conduct,the evidence must be such that a jury could make permissible

inferences, not resort to speculation. In the present case, the defendant

presented nothing more than speculation. Moreover, we are required to

examine the court’s ruling under an abuse of discretion standard, not substitute our discretion for that of the trial court. This majority decision does

eviscerate the rape shield statute because it allows speculation to be put

before a jury.