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STATE OF CONNECTICUT v. TAYLOR G.*

(SC 19222)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,

Espinosa and Robinson, Js.

Argued September 16, 2014—officially released March 17, 2015

Mark Rademacher, assistant public defender, for the

appellant (defendant).

Robin S. Schwartz, assistant state’s attorney, with

whom, on the brief, were Michael Dearington, state’s

attorney, and Michael Pepper, senior assistant state’s

attorney, for the appellee (state).
Opinion

ZARELLA, J. The defendant, Taylor G., appeals from

the judgments of conviction, rendered after a jury trial,

of one count of sexual assault in the first degree in

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

of sexual assault in the fourth degree in violation of

General Statutes (Rev. to 2007) § 53a-73a (a) (1) (A),

as amended by Public Acts 2007, No. 07-143, § 2, and

one count of risk of injury to a child in violation of

General Statutes (Rev. to 2007) § 53-21 (a) (2), as

amended by Public Acts 2007, No. 07-143, § 4. The defendant claims that (1) the trial court’s imposition of the

ten year mandatory minimum sentence for the first

degree sexual assault conviction1 and the five year mandatory minimum sentence for the risk of injury conviction,2 even though the defendant was only fourteen and

fifteen years old when he committed the crimes,3 violates the requirement under the eighth amendment to

the United States constitution4that a child offender

receive a proportionate and individualized sentence

from a sentencer empowered to consider and give effect

to the mitigating qualities of the child’s youth, (2) the

state’s expert witness improperly vouched forthe credibility of the victim, C, and (3) the trial court improperly

admitted evidence of sexual misconduct committed by

the defendant when he was thirteen years old. The

state responds that (1) the trial court considered the

defendant’s status as a juvenile offender when it

imposed the mandatory minimum sentences, which

were proportional to the crimes, (2) the state’s expert

witness did not vouch for C’s credibility, and (3) the

court properly admitted evidence of the defendant’s

sexual misconduct when he was thirteen years old. We

affirm the judgments of the trial court.

The jury reasonably could have found the following

facts. On November 13, 2009, the defendant was

arrested for sexually assaulting his cousin, C. The

assaults occurred between July 17, 2007, and February,

2009, at the home of the defendant’s mother in the city

of New Haven and at the homes of the defendant’s

relatives in the town of Hamden. At the time of the

assaults, the defendant was fourteen and fifteen years

old, and C was six and seven years old. When C finally

told his mother about the assaults, she immediately

reported them to the police.

Due to the serious nature of the charges, the defendant’s cases were transferred from the juvenile docket

to the regular criminal docket pursuant to General Statutes § 46b-127 (a) (1).5 On June 5, 2012, following a

jury trial, the defendant was found guilty of all three

offenses. On November 2, 2012, while awaiting his sentence, the defendant filed a motion requesting a sentence below the mandatory minimums of ten years and

five years, respectively, for first degree sexual assault

and risk of injury to a child, claiming that imposition of
the mandatory minimums for crimes he had committed

when he was fourteen and fifteen years old would violate the eighth amendment prohibition against cruel and

unusual punishment and the equal protection clause of

the fourteenth amendment to the United States constitution. On that date, the defendant also filed a motion

for a new trial, claiming that the trial court improperly

had admitted the testimony of an expert witness who

impermissibly had vouched for C’s credibility, which

was critical to the outcome of the case. At a hearing

in January, 2013, the trial court considered both

motions. On February 27, 2013, the court denied the

motion for a new trial, and, on March 12, 2013, it denied

the motion to sentence the defendant below the mandatory minimums. On March 13, 2013, the court imposed

a total effective sentence of ten years incarceration

followed by three years of special parole.6 This

appeal followed.

I

The defendant first claims that the ten and five year

mandatory minimum sentences for first degree sexual

assault and risk of injury to a child, respectively, when

applied to a juvenile offender, violate the eighth amendment right to an individualized, proportionate sentence

because the sentencing court is unable to consider and

give effect to relevant mitigating evidence of the offender’s youth and immaturity. The state rejects the defendant’s claim on the ground that he overstates the scope

of the governing federal law. We agree with the state.

The following additional facts are relevant to our

resolution of this claim. In its memorandum of decision

on the motion to sentence the defendant below the

mandatory minimums, the court discussed the applicable federal law and concluded that the mandatory minimum sentences in the defendant’s case ‘‘lack[ed] the

severity necessary to be considered constitutionally disproportionate.’’ The court also concluded that the mandatory minimum sentences did not ‘‘strip the court of

its ability to exercise broad discretion in fashioning an

appropriate sentence.’’ The court explained that, ‘‘[f]or

his three convictions, the defendant faces up to fiftyfive . . . years incarceration. The court may impose

this maximum sentence, or may choose to impose a

sentence considerably more lenient. In making that

determination, the court may consider the mitigating

effects of the defendant’s youth, including . . . a juvenile’s diminished culpability and greater prospects for

reform. . . . The court thereby may ensure that the

defendant receives the individualized sentencing consideration to which he is entitled.’’ (Citation omitted;

internal quotation marks omitted.)

During the sentencing hearing on March 3, 2013, the

court expressed reservations as to whether mandatory

minimum sentences were appropriate in a juvenile setting, especially when an offender, like the defendant,
was only fourteen and fifteen years old at the time

he committed the crimes. The court observed that it

appeared that the defendant had experienced abuse as

a child, and that such a child sometimes becomes an

abuser as an adult. The court also noted that, when the

legislature enacted the mandatory minimum sentencing

provisions, it was not contemplating fourteen year old

offenders but, rather, offenders who were significantly

older. The court nonetheless concluded: ‘‘I still feel duty

bound under my role in our criminal justice system to

follow the rules and the sentences the legislature has

enacted. But to the extent that people have asked me

to be as lenient as I can, that’s what I’m being. I’m being

as lenient as I can. I suspect not lenient enough in the

view of those who spoke on [the defendant’s] behalf,

but, to quote what somebody said, I am being as lenient

as I possibly can, but I think that’s adequate punishment

for an individual who commits crimes when he’s fourteen years of age.’’ The court then sentenced the defendant to the mandatory minimum of ten years incarceration on the first degree sexual assault count followed by three years of special parole, one year incarceration on the fourth degree sexual assault count, and

ten years incarceration, five of which were mandatory,

on the risk of injury count. The court ordered that the

latter two sentences be served concurrently with the

first sentence, for a total effective sentence of ten years

incarceration followed by three years of special parole.

The standard of review is well established. ‘‘A challenge to [t]he constitutionality of a statute presents

a question of law over which our review is plenary.’’

(Internal quotation marks omitted.) Keane v. Fischetti,

300 Conn. 395, 402, 13 A.3d 1089 (2011). With respect

to the governing legal principles, the defendant relies

on Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183,

161 L. Ed. 2d 1 (2005), Graham v. Florida, 560 U.S. 48,

130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), and Miller v.

Alabama, U.S. , 132 S. Ct. 2455, 183 L. Ed. 2d

407 (2012), in which the United States Supreme Court

established a series ofrules to be applied in the sentencing of juvenile offenders.7

In explaining the evolution and development of these

rules, the court in Miller began by noting that ‘‘[t]he

[e]ighth [a]mendment’s prohibition of cruel and unusual

punishment guarantees individuals the right not to be

subjected to excessive sanctions . . . [and] flows from

the basic precept of justice that punishment for crime

should be graduated and proportioned to both the

offender and the offense.’’ (Citation omitted; internal

quotation marks omitted.) Miller v. Alabama, supra,

132 S. Ct. 2463. The court then described ‘‘two strands

of precedent reflecting [its] concern with proportionate

punishment.’’ Id. The first strand consisted of cases

in which the court had ‘‘adopted categorical bans on

sentencing practices based on mismatches between the

culpability of a class of offenders and the severity of a
penalty. . . . Several of the cases in this group . . .

specially focused on juvenile offenders, because of their

lesser culpability. Thus, Roper held that the [e]ighth

[a]mendment bars capital punishment for children, and

Graham concluded that the [a]mendment also prohibits

a sentence of life without the possibility of parole for

a child who committed a nonhomicide offense. Graham

further likened life without parole for juveniles to the

death penalty itself, thereby evoking a second line of

. . . precedents. In those cases, [the court] . . . prohibited mandatory imposition of capital punishment,

requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense

before sentencing him to death.’’ (Citations omitted;

internal quotation marks omitted.) Id., 2463–64. The

court thus concluded that, due to ‘‘the confluence of

these two lines of precedent . . . mandatory life-without-parole sentences for juveniles violate the [e]ighth

[a]mendment.’’ Id., 2464.

The court elaborated that ‘‘Graham and Roper and

[its] individualized sentencing cases alike teach that

in imposing a [s]tate’s harshest penalties, a sentencer

misses too much if he treats every child as an adult. . . .

Mandatory life without parole for a juvenile precludes

consideration of his chronological age and its hallmark

features—among them, immaturity, impetuosity, and

failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot

usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation

in the conduct and the way familial and peer pressures

may have affected him. Indeed, it ignores that he might

have been charged and convicted of a lesser offense

if not for incompetencies associated with youth—for

example, his inability to deal with police officers or

prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. . . . And finally,

this mandatory punishment disregards the possibility

of rehabilitation even when the circumstances most

suggest it.’’(Citations omitted.)Id., 2468. The court thus

determined: ‘‘[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By

requiring that all children convicted of homicide receive

lifetime incarceration without [the] possibility of

parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory

sentencing schemes before [the court] violate this principle of proportionality, and so the [e]ighth [a]mendment’s ban on cruel and unusual punishment.’’ Id., 2475.

In sum, all three federal cases recognized that,

because the eighth amendment prohibition against

cruel and unusual punishment is based on the principle

that punishment should be graduated and proportioned
to the offender and the offense, courts must consider

mitigating evidence of youth and immaturity when sentencing juvenile offenders. Thus, applying this principle,

the death penalty is a disproportionate sentence for

juvenile offenders, regardless of the crime; see Roper

v. Simmons, supra, 543 U.S. 573–75; life imprisonment

without the possibility of parole is a disproportionate

sentence for juveniles convicted of a nonhomicide

crime; Graham v. Florida, supra, 560 U.S. 74; and mandatory life imprisonment without the possibility of

parole is a disproportionate sentence for juveniles convicted of a homicide, although a sentence of life imprisonment without the possibility of parole may be deemed

appropriate following consideration of the child’s agerelated characteristics and the circumstances of the

crime. See Miller v. Alabama, supra, 132 S. Ct. 2469;

see also id., 2475 (‘‘Graham, Roper, and [the court’s]

individualized sentencing decisions make clear that a

judge or jury must have the opportunity to consider

mitigating circumstances before imposing the harshest

possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without [the] possibility of parole, regardless of

their age and age-related characteristics and the nature

of their crimes, the mandatory sentencing schemes [at

issue] violate this principle of proportionality . . . .’’

[Emphasis added.]).

In light of this precedent, we disagree with the defendant that his ten and five year mandatory minimum

sentences violated the eighth amendment prohibition

against cruel and unusual punishment. The defendant’s

sentences not only were far less severe than the sentences at issue in Roper, Graham and Miller, but were

consistent with the principle of proportionality at the

heart of the eighth amendment protection because the

mandatory minimum requirements, while limiting the

trial court’s discretion to some degree, still left the

court with broad discretion to fashion an appropriate

sentence that accounted for the defendant’s youth and

immaturity when he committed the crimes.

A

We first agree with the trial court that the defendant’s

ten and five year mandatory minimum sentences lack

the severity of the sentences at issue in Roper, Graham

and Miller. In those cases, the court concluded there

was a constitutional violation because the sentences

consisted of death or life imprisonment without the

possibility of parole, the two most severe punishments

courts are able to impose. See Miller v. Alabama, supra,

132 S. Ct. 2467–68; Graham v. Florida, supra, 560 U.S.

70; Roper v. Simmons, supra, 543 U.S. 568. The difference between these and other sentences is not merely

quantitative. There is also a qualitative difference. Death

is final and irrevocable, unlike any other sentence. Life

in prison without the possibility of parole is also final
and irrevocable in the sense that it deprives the offender

of all hope of future release and of living a normal

life, even if he or she is successfully rehabilitated and

capable of returning and making a positive contribution

to society. These differences were recognized by the

courts in all three cases, each of which described the

punishment in question as unique in its severity. See

Miller v. Alabama, supra, 2465, 2466, 2468 (repeatedly

characterizing life imprisonment without possibility of

parole as ‘‘harshest’’ possible penalty for juveniles);

Graham v. Florida, supra, 69–70 (stating that ‘‘life without parole is ‘the second most severe penalty permitted

by law’ ’’ and that ‘‘life without parole sentences share

some characteristics with death sentences that are

shared by no other sentences’’ because ‘‘the sentence

alters the offender’s life by a forfeiture that is irrevocable . . . without giving hope of restoration’’); Roper v.

Simmons, supra, 568 (‘‘[b]ecause the death penalty is

the most severe punishment, the [e]ighth [a]mendment

applies to it with special force’’).

Although the deprivation of liberty for any amount

of time, including a single year, is not insignificant,

Roper, Graham and Miller cannot be read to mean that

all mandatory deprivations of liberty are of potentially

constitutional magnitude. In the present case, the ten

and five year mandatory minimum sentences, under

which the defendant is likely to be released before he

reaches the age of thirty, do not approach what the

court described in Roper, Graham and Miller as the

two harshest penalties. Thus, the defendant’s sentences

do not implicate the factors deemed unacceptable in

Roper, Graham and Miller when those penalties are

imposed on juveniles, namely, the futility of rehabilitation and the permanent deprivation of all hope to

become a productive member of society, both of which

occur when the court is prevented from taking a second

look at the incarcerated offender’s demonstrated

growth and maturity. Rather, the defendant in the present case will be able to work toward his rehabilitation

and look forward to release at a relatively young age.

Accordingly, from the standpoint of the severity of the

mandatory ten and five year sentences at issue in this

case, Roper, Graham and Miller provide no support

for the defendant’s claim that the sentences constitute

cruel and unusual punishment when applied to a juvenile offender.

B

We also agree with the trial court that the mandatory

minimum sentences, as applied to the defendant, did

not otherwise violate the principle of proportionality

articulated in Roper, Graham and Miller. That is

because, unlike in those cases, the sentencing provisions at issue in the present case left the trial court with

discretion to choose from a wide range of sentencing

possibilities that equaled or exceeded the minimum
term of imprisonment. Although the defendant was subject to a maximum sentence of fifty-five years incarceration on all charges, the court stated at the sentencing

hearing that it intended to be as lenient as possible,

considering the defendant’s age at the time he committed the crimes, and it thus sentenced the defendant to a

total effective sentence of only ten years incarceration,

followed by three years of special parole.

Insofar as the defendant argues that the mandatory

minimum sentencing provisions prevented the court

from fully exercising its discretion, the trial court stated

that it did not view the sentences as ‘‘strip[ping] the

court of its ability to exercise broad discretion in fashioning an appropriate sentence.’’ All mandatory minimum sentences limit, to some extent, the discretion of

courts to craft a sentence that accounts for the special

characteristics of the offender and the offense. Even

mandatory minimum sentences of one ortwo years limit

the discretion of courts by precluding the imposition of

lesser sentences on offenders regarded as deserving

of a lesser penalty because of compelling mitigating

factors. See, e.g., General Statutes § 53a-61a (d) (requiring mandatory minimum sentence of one year incarceration for third degree assault of elderly, blind, disabled

or pregnant person, or person with intellectual disability); see also General Statutes § 29-35 (a) (requiring

mandatory minimum sentence of one yearincarceration

for carrying pistol without permit). The limitations that

mandatory minimum sentences place on a trial court’s

discretion, however, do not automatically constitute an

eighth amendment violation. A mandatory minimum

sentence is, by definition, the least punitive sentence

that may be imposed under a sentencing statute. The

question thus becomes whether the mandatory minimum sentences in the present case were so disproportionate, despite the court’s decision to impose a total

effective sentence amounting to a fraction of the maximum possible sentence, that they subjected the defendant to cruel and unusual punishment under Roper,

Graham and Miller. In order to answer this question,

we consider the defendant’s total effective sentence in

light of the crimes of which he was convicted.

The defendant received mandatory minimum sentences of ten years incarceration for sexual assault in the

first degree and five years incarceration forrisk ofinjury

to a child. Under the first degree sexual assault statute,

the defendant was charged with ‘‘engag[ing] in sexual

intercourse with another person and such other person

is under thirteen years of age and the actor is more

than two years older than such person . . . .’’ General

Statutes § 53a-70 (a) (2). Under the risk of injury to a

child statute, the defendant was charged with ‘‘[having]

contact with the intimate parts, as defined in section

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

subject[ing] 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 . . . .’’ General Statutes (Rev. to 2007)

§ 53-21 (a) (2), as amended by Public Acts 2007, No.

07-143, § 4. General Statutes § 53a-65 (8) defines ‘‘ ‘[i]ntimate parts’ ’’ as ‘‘the genital area or any substance emitted therefrom, groin, anus or any substance emitted

therefrom, inner thighs, buttocks or breasts.’’

In the present case, C testified that the defendant put

his hand down C’s pants and ‘‘pushed [C’s] penis in

. . . [with] [h]is finger,’’ ‘‘put his finger in [C’s] butt,’’

and ‘‘put his hand on [C’s] penis and . . . rub[bed] it.’’

C also testified that the defendant sometimes lay on

top of him when their clothes were on and ‘‘hump[ed]’’

him. The assaults took place over a period of approximately eighteen or nineteen months when C was six

and seven years old.

Given the gravity of these offenses, the tender age

of C when they occurred, and the likelihood that C will

suffer from the effects of the abuse for the remainder

of his life, the mandatory minimum sentences cannot

be said to be disproportionate under Roper, Graham

and Miller. In Graham, the court made clear that juveniles convicted of nonhomicide crimes, such as the

crimes committed by the defendant in the present case,

are not immune from very harsh punishments, including

life in prison, merely because of their youth when they

committed the crimes. The court explained: ‘‘A [s]tate is

notrequired to guarantee eventual freedom to a juvenile

offender convicted of a nonhomicide crime. What the

[s]tate must do . . . is give defendants . . . some

meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. . . . It bears

emphasis, however, that while the [e]ighth [a]mendment forbids a [s]tate from imposing a life without

parole sentence on a juvenile nonhomicide offender, it

does not require the [s]tate to release that offender

during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the

duration of their lives. The [e]ighth [a]mendment does

not foreclose the possibility that persons convicted of

nonhomicide crimes committed before adulthood will

remain behind bars for life. It does forbid [s]tates from

making the judgment at the outset that those offenders

never will be fit to reenter society.’’ Graham v. Florida,

supra, 560 U.S. 75.

From this passage, it is clearthat the court in Graham

did not disapprove of lengthy sentences for juvenile

offenders convicted of nonhomicide crimes. The court

instead objected to the factthat a sentence oflife imprisonment without the possibility of parole would eliminate at the outset any future opportunity for such

offenders to demonstrate growth and maturity by using

their time in prison to rehabilitate and become productive members of society. The court in Miller went even
further when it endorsed the imposition of a life sentence without the possibility of parole for juvenile

offenders convicted of homicide, provided the sentencing court first consider mitigating evidence relating to

the offender’s personal history and the nature of the

crime. See Miller v. Alabama, supra, 132 S. Ct. 2470–72.

In the present case, the trial court’s decision to

impose a sentence for first degree sexual assault that

did not exceed the mandatory minimum and to allow

the sentences for fourth degree sexual assault and risk

of injury to be served concurrently with the sentence

forfirst degree sexual assault was based on its consideration of the defendant’s relative youth and immaturity

when he committed the crimes, and will guarantee the

defendant’s future release at a relatively young age. The

sentences were therefore consistent with the principles

of individualized sentencing and proportionality articulated in Roper, Graham and Miller, and did not constitute cruel and unusual punishment under the eighth

amendment.8

II

The defendant next claims that Theresa Montelli, the

state’s expert witness on child abuse victims, improperly vouched for C’s credibility. The defendant specifically claims that Montelli directly and indirectly

vouched for C’s credibility by making substantive use

of C’s out-of-court statements in her testimony regarding the general characteristics of sexually abused children. The state responds that Montelli did not vouch,

directly orindirectly, for C’s credibility but,rather, testified regarding the general characteristics of sexually

abused children, offered no indirect opinions about C,

and never testified that she previously had treated, or

was currently treating, C for any reason. We agree with

the state.

The following additional facts are relevant to our

resolution of this claim. Prior to commencement of the

trial, the state informed the court that it intended to

offer testimony by Montelli relating to her interview

with C and her knowledge of the general characteristics

of sexually abused children, such as delayed reporting

of the abuse and the ways in which a child victim recalls

events. Although defense counsel objected to admission

of this testimony, the court advised counsel that a specific objection should be made when the testimony was

offered at trial.

Thereafter, C testified that, in the spring of 2007,

when he was five years old and the defendant was

thirteen years old, he was in the care of multiple family

members and legal guardians. During the week, he lived

in Hamden with three sisters, who were close friends

of his mother, and an uncle. On Friday nights, he went

to New Haven to stay with one of his mother’s brothers.

The rest of the weekend he spent with his mother, who
was living in New Haven with her second brother, his

wife and their three sons, one of whom was the

defendant.

During this time, C had a good relationship with the

defendant, thought of him as a big brother, and frequently watched television and played video games with

him. One day, however, when C was visiting his mother

at the defendant’s home, the defendant put his hand

inside C’s pants and touched him sexually, conduct that

continued during other visits. Because C, who was only

five years old at the time, did not understand that this

conduct was ‘‘wrong,’’ he did not tell anyone about it.

In June, 2007, just before C turned six years old, his

mother moved out of the defendant’s home and into

her own apartment in New Haven. After the move, C’s

visiting schedule with his mother continued. During the

week, he lived with the three sisters; on Friday nights,

he went to the home of his mother’s brother; and during

the remainder of the weekend, he visited his mother at

her new apartment.

Even though C’s mother was no longer living with

the defendant’s family, C and the defendant continued

to see each other regularly. Throughout that summer,

the defendant visited the home of the three sisters three

orfourtimes a week, sometimes with his parents to help

with chores, and other times for holidays and family

parties. C also continued to see the defendant at the

home of his mother’s brother on Friday nights and at

his mother’s new apartment. Although C liked spending

time and playing games with the defendant, the defendant continued to sexually abuse C at all three locations

for the next eighteen or nineteen months. Finally, in

February, 2009, when C was seven years old, he told

his mother that the defendant had been inappropriately

touching him and that the defendant had said he would

kill C if C told anybody about what had happened. When

asked why he finally told his mother, C explained: ‘‘I

just couldn’t take it anymore.’’ One week later, Montelli

interviewed C.

When the state was ready to call Montelli as an expert

witness the following day, defense counsel objected by

way of a motion in limine, in which he argued that she

should not be allowed to give testimony regarding her

forensic interview with C and the general characteristics of children who have been sexually abused. Counsel

argued that allowing Montelli to testify about the general characteristics of sexually abused children immediately before showing the jury her video-recorded interview with C would compromise her appearance of

impartiality as an expert witness and bolster C’s allegations that he had been sexually abused by the defendant.

In other words, allowing Montelli to testify for both

purposes would amount to her giving an opinion that

C’s allegations were credible. Counsel thus suggested

that the state call another equally qualified expert wit-
ness who had not conducted a forensic interview with

C to testify regarding the general characteristics of sexually abused children.

The court denied the defendant’s motion in limine,

stating that it was unaware of any legal authority that

would preclude an expert witness from testifying on

both matters. The court stated that defense counsel was

free to object if the state crossed the line in questioning

Montelli and that it could cross-examine Montelli to

reduce the risk of any possible confusion caused by

her testimony. The court also informed counsel that it

would entertain a request to give the jury a limiting

instruction immediately before its deliberations delineating Montelli’s two roles so that the jury would understand that her testimony describing the general characteristics of sexually abused children was not intended

to identify any of C’s particular characteristics.

Thereafter, Montelli testified that she was a clinical

social worker and forensic interviewer for Yale-New

Haven Hospital’s Child Sexual Abuse Clinic (clinic) and

explained that her office functioned as part of an interdisciplinary team. She stated that the purpose of forensic interviews was to collect facts in orderto understand

the alleged abuse from the child’s perspective, to obtain

information for use in the child’s medical treatment, if

treatment was deemed necessary, and to protect the

child from further trauma by minimizing the number

of times the child was required to speak with others

about the experience.

Montelli next discussed the protocol for interviewing

children brought to the clinic and her understanding of

the general characteristics of children who have been

sexually abused. With respect to the issue of delayed

reporting, she noted that most sexually abused children

do notreport the abuse immediately and, in some cases,

never report the abuse, often because they have a close

relationship with the abuser. For example, an abuser

may be a family friend or a family member to whom

the child feels loyalty, such as a mother, father, uncle

or cousin. In some cases, the child may delay disclosure

if the perpetrator is an authority figure who has threatened or intimidated the child. In still other cases, the

child may delay disclosure because of shame or embarrassment. Montelli also testified that a child’s delayed

disclosure may be due to a perceived lack of maternal support.

Montelli next discussed the effect of age on delays

in reporting. She explained that children seven years

old or younger may not know initially that what is

happening is wrong because they have little or no understanding of sex or sexual abuse. Younger victims also

have a limited understanding of time, and, therefore,

the information they report may be unreliable because

time is an abstract concept and multiple incidents often

blend together. Thus, if a child has been exposed to
more than one incident of sexual abuse, the child may

not be able to recall correctly the number of times the

abuse occurred, the exact locations where it occurred,

and the exact details of the abuse on each occasion.

When queried regarding her forensic interview with

C, Montelli stated that she had conducted the interview

at the clinic, the interview had been recorded, and a

colleague had performed a medical examination of C

following the interview. The jury then was shown the

video recording of the interview. After the video

recording was played, Montelli returned to the stand,

where she testified briefly that she had not seen C since

the interview, had not assisted in preparing C for trial,

and had showed C anatomically correct dolls and diagrams during the interview for C to use in describing

the abuse.

On cross-examination, Montelli stated that a delay in

reporting or a limited understanding of the concept of

time did not mean that a child’s allegation of sexual

abuse was truthful. She also agreed with counsel that

some young children have a limited understanding of

sexual activities. In response to a question regarding her

personal knowledge as to whether C had been abused,

Montelli testified: ‘‘My job isn’t to say that allegations

are true or not, or that . . . this child just told me the

truth . . . . I don’t make that determination.’’ Defense

counsel responded: ‘‘So, the answer is that you do not

have any personal knowledge, and that’s the question,

any personal knowledge of whether these [allegations]

are true or not?’’ Montelli replied: ‘‘No. . . . It was only

what I heard from [C].’’ On redirect examination, Montelli reiterated that she did not ‘‘witness anything’’ connected with C’s factual allegations.

During closing argument, defense counsel was the

first to refer to Montelli’s testimony, noting that a ‘‘socalled expert witness’’ for the state had described the

general characteristics of abused children and then had

appeared in the video-recorded interview with C, which

might have suggested to the jury that what had happened to C was consistent with being sexually abused.

Counsel directly refuted any such suggestion, however,

by emphasizing Montelli’s testimony that a delay in

disclosure has nothing to do with whether a child is

telling the truth or lying. He also argued that Montelli’s

testimony that children typically wait until the abuser

is out of the house before disclosing the abuse did not

apply in the present case because C did not live in the

same house as the defendant for most of the time the

alleged abuse occurred. Counsel dismissed Montelli’s

testimony that children often fail to timely disclose

abuse if they are threatened by reminding the jury of

C’s testimony that no one ever had threatened him or

told him not to tell anyone about the abuse while it

was occurring, except for the very last time, after which

he reported the abuse to his mother.
In rebuttal, the assistant state’s attorney (prosecutor)

reminded the jury that Montelli was not permitted to

testify as to whether C exhibited any of the general

characteristics of sexually abused children and that she

was not permitted to testify that C was telling the truth

because that issue was for the jury to decide. The prosecutor explained that Montelli’s role was to describe, on

the basis of her training and experience, the general

characteristics of sexually abused children. The prosecutor then referred to many of the traits Montelli had

discussed, including a child’s concept of time, the

impossibility of accurate recall by very young children

when there have been multiple incidents of abuse, the

reasons for a child’s delay in reporting the abuse, and

the types of relationships that commonly exist between

perpetrators and victims.

Following the jury’s determination that the defendant

was guilty but before he was sentenced, the defendant

filed a motion for a new trial on the ground that Montelli

had vouched for C’s credibility by giving the type of

expert testimony this court deemed inadmissible in

State v. Favoccia, 306 Conn. 770, 780, 51 A.3d 1002

(2012), namely, examples of the behavior of sexual

assault victims closely resembling C’s behavior, thus

directly or indirectly connecting C’s behavior with the

behavioral characteristics of a sexual assault victim.

The defendant argued that Montelli’s testimony that

children (1) often delay disclosing the abuse because

of their close relationship with the abuser, (2) may fail

to disclose or may choose to disclose the abuse when

threats are made, (3) may fail to disclose the abuse

when they feel a lack of maternal support or have a poor

relationship with their mothers, (4) do not understand

what is happening to them or that the abuse is wrong

when they are seven years old or younger, and (5) have

poor concepts of time and thus may incorrectly describe

the number of incidents, where they occurred, and the

details of the abuse when they are seven years old or

younger, was similar to C’s testimony that he (1) was

abused by his cousin, the defendant,(2) did not disclose

the abuse until the defendant threatened to kill him,

(3) did not have a close relationship with his mother

when the abuse occurred, (4) did not understand that

the defendant’s conduct was wrong, and (5) could not

recall the exact number of incidents or the dates on

which they occurred.

In denying the motion, the trial court disagreed with

the defendant’s characterization of the disputed testimony as the type of testimony at issue in Favoccia. The

court observed that Favoccia stands forthe proposition

that, ‘‘although expert witnesses may testify about the

general behavioral characteristics of sexual abuse victims, they cross the line into impermissible vouching

and ultimate issue testimony when they opine that a

particular complainant has exhibited those general
behavioral characteristics.’’ (Internal quotation marks

omitted.) The court then noted that neitherthe prosecutor, in his questions regarding the general characteristics of abused children, nor Montelli, in her responses,

made any reference to C or sought to compare or link

those general characteristics to C.

On appeal, the defendant renews his claim that Montelli’s testimony regarding the general characteristics

of sexually abused children was similarto the testimony

at issue in Favoccia. The defendant specifically claims,

as he did in his motion for a new trial, that Montelli’s

description of the general characteristics of abused children was based on her knowledge of C’s allegations,

thereby improperly linking the two and, in effect, vouching for C’s credibility. The defendant thus claims that

Montelli’s general testimony directly or indirectly supported C’s allegations that he was sexually abused by

suggesting that (1) he delayed disclosure because of

his close family relationship with his cousin, his lack

of a strong maternal bond and his lack of knowledge

that the touching was wrong, (2) he disclosed the abuse

only after being threatened, and (3) he could not

describe or distinguish specific incidents or say how

often the abuse occurred because children similar in

age have a poor concept of time and an inability to

connect events and places. The state responds that the

fact that Montelli testified regarding the general characteristics of abused children immediately before the

video-recorded interview was shown to the jury did not

result in improper vouching for C’s credibility because

Montelli never testified about C specifically or linked C

to her other testimony about abused children generally.

We begin with the standard of review and the governing legal principles. ‘‘The trial court’s ruling on evidentiary matters will be overturned only upon a showing

of a clear abuse of the court’s discretion. . . . The trial

court has wide discretion in ruling on the qualification

of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed

unless [its] discretion has been abused, or the error is

clear and involves a misconception of the law. . . .

Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable

to a matter in issue, (2) that skill or knowledge is not

common to the average person, and (3) the testimony

would be helpful to the court or jury in considering the

issues. . . .

‘‘The determination of the credibility of a witness is

solely the function of the jury. . . . It is the trier of

fact which determines the credibility of witnesses and

the weight to be accorded their testimony. . . . Expert

witnesses cannot be permitted to invade the province of

the jury by testifying as to the credibility of a particular

witness or the truthfulness of a particular witness’

claims. . . . An expert witness ordinarily may not
express an opinion on an ultimate issue of fact, which

must be decided by the trier of fact. . . . Experts can

[however] sometimes give an opinion on an ultimate

issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question

on which it must pass. . . .

‘‘Additionally, in cases that involve allegations of sexual abuse of children, we have held that expert testimony of reactions and behaviors common to victims

of sexual abuse is admissible. . . . Such evidence

assists a jury in its determination of the victim’s credibility by explaining the typical consequences of the trauma

of sexual abuse on a child. . . . It is not permissible,

however, for an expert to testify as to his opinion of

whether a victim in a particular case is credible or

whether a particular victim’s claims are truthful. . . .

In this regard, we have found expert testimony stating

that a victim’s behavior was generally consistent with

that of a victim of sexual or physical abuse to be admissible, and have distinguished such statements from

expert testimony providing an opinion as to whether a

particular victim had in fact suffered sexual abuse. . . .

‘‘Moreover, we have noted that even indirect assertions by an expert witness regarding the ultimate issue

in a case can serve inappropriately to validate the truthfulness of a victim’s testimony. . . . Finally, in cases

in which an expert witness reaches a conclusion on the

ultimate issue in part based upon statements made by

the victim, we note that Connecticut case law has previously recognized the general rule of law that the

expert is necessarily making a determination about the

victim’s credibility. . . . Such credibility determinations are more properly within the sole province of the

jury.’’ (Citations omitted; emphasis omitted; internal

quotation marks omitted.) State v. Iban C., 275 Conn.

624, 634–36, 881 A.2d 1005 (2005).

In Favoccia, this court considered ‘‘whether an

expert witness’ testimony that the complainant has

exhibited behaviors, which were identified as those

characteristic of [child] sexual assault victims, constitutes inadmissible vouching for the credibility of the

complainant or opinion as to the ultimate issue of

whether the complainant had been sexually assaulted’’;

State v. Favoccia, supra, 306 Conn. 772; and concluded

that it did. Id., 772–73. In that case, the expert witness

was allowed to respond to four questions posed by

the prosecutor relating to whether the complainant’s

disclosure of abuse was accidental or purposeful, as

those concepts are understood in the context of sexual

abuse; id., 782–83; whetherthe complainant’s disclosure

fit the characteristics of a delayed disclosure by sexual

abuse victims; id., 783–84; whether the complainant’s

respectful behavior toward the abuser was consistent

with the tendency of an abused child to continue to

show respect toward the abuser after the abuse has
occurred; id., 784–85; and whether the complainant fit

the profile of a female abuse victim who attempts to

make herself look unattractive to the abuser as a coping

mechanism. Id., 785.

After considering these facts, we noted that the

expert testimony at issue occupied ‘‘a delicate middle

ground’’; id., 790; between the type of expert testimony

deemed admissible in State v. Spigarolo, 210 Conn. 359,

556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322,

107 L. Ed. 2d 312 (1989), because it sought ‘‘to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged

incidents’’; id., 380; and the type of expert testimony

deemed inadmissible in State v. Grenier, 257 Conn. 797,

806, 778 A.2d 159 (2001), because it improperly involved

an opinion as to the complainant’s credibility, and in

State v. Iban C., supra, 275 Conn. 635–36, because it

improperly involved an opinion about whetherthe complainant had been sexually abused. See State v. Favoccia, supra, 306 Conn. 788–90. We ultimately concluded

that ‘‘our concerns about indirect vouching expressed

in [Grenier] and [Iban C.] require us to limit expert

testimony about the behavioral characteristics of child

sexual assault victims admitted under [Spigarolo] to

that which is stated in general or hypothetical terms,

and to preclude opinion testimony about whether the

specific complainant has exhibited such behaviors.

. . . [T]here is no material distinction between express

testimony that the child has been sexually abused, and

implicit testimony that outlines the unreliable behavioral reactions found with sexually abused victims, followed by a list of the complainant’s own behavioral

reactions, that points out that the two are consistent,

and then invites the jury to add up the points to conclude

that the child has been sexually abused. . . . Generalized testimony is sufficient to provide the jury with

the valuable knowledge, which it is unlikely to have

otherwise, specifically that [child] victims typically fail

to provide complete or consistent disclosures of the

alleged sexual abuse . . . . Thus, we agree with those

authorities observing that more specific testimony

yields returns that increase in prejudice to the defendant as they diminish in value with respect to the edification of the jury as to behaviors that might affect the

complainant’s credibility. . . . Accordingly, we . . .

conclude that, although an expert witness may testify

generally about the behavioral characteristics of child

sexual assault victims, an expert witness may not opine

about whether the specific complainant has exhibited

such behaviors.’’ (Citations omitted; footnotes omitted;

internal quotation marks omitted.) Id., 803–805.

In the present case, Montelli’s testimony bears no

resemblance to the testimony at issue in Favoccia. After

testifying about her qualifications, the work of the

clinic, the purpose of forensic interviews, and the protocol she followed in conducting them, Montelli testified
regarding the general characteristics of sexually abused

children, including children seven years old or younger,

and the reasons why they may delay disclosure of the

abuse. At no time during this portion of her testimony

did she refer to C or attempt to link him in any way to

her general description of children who are victims of

sexual abuse. Immediately before the video recording

of the forensic interview was played for the jury, she

also testified briefly regarding the circumstances surrounding the interview, and, after the video recording

was shown, she answered several minor questions

regarding interview procedures wholly unrelated to the

content of C’s testimony. Furthermore, when asked

directly on cross-examination if she had any personal

knowledge that C had been sexually abused, Montelli

testified: ‘‘My job isn’t to say that allegations are true

or not, or that . . . this child just told me the truth

. . . . I don’t make that determination.’’ On redirect

examination, Montelli again stated she had not ‘‘witness[ed] anything’’ with respect to C’s abuse. Thereafter, during closing arguments, defense counsel

contended that C did not fit the profile of a sexually

abused child, and the prosecutor reminded the jury that

Montelli could not testify as to whether any of the

examples she had given regarding the behavioral characteristics of sexually abused children applied to C. In

addition, the prosecutor advised that Montelli was not

permitted to testify as to whether C was telling the

truth because that determination was reserved for the

jury. The prosecutor explained that Montelli’s role was

to describe, on the basis of her training and experience,

the general characteristics of sexually abused children.

In light of this record, we agree with the trial court that

the difference between the testimony in this case and

the improper testimony in Favoccia was ‘‘quite stark,’’

because the opinion testimony in Favoccia, unlike the

expert testimony in the present case, was given in

response to specific questions regarding whether the

complainant demonstrated the general characteristics

of a sexually abused child.

The defendant claims that it is the substance of what

is conveyed that matters, and not the use of triggering

words, and that, in answering questions regarding the

general behavioral characteristics of sexual abuse victims seven years of age and under, Montelli relied on

specific facts and examples she had learned from her

interview with C. The defendant therefore claims that

Montelli’s testimony improperly linked the behavior of

C with that of children who are sexually abused. We

disagree.

The purpose of expert testimony regarding the general characteristics of sexually abused children is to

provide information that will assist the jury in evaluating the credibility of the complainant. As we stated in

Spigarolo, this type ‘‘of expert testimony is admissible

because the consequences of the unique trauma experi-
enced by [child] victims of sexual abuse are matters

beyond the understanding of the average person. . . .

Consequently, expert testimony . . . is of valuable

assistance to the trier in assessing the . . . victim’s

credibility.’’ (Citations omitted.) State v. Spigarolo,

supra, 210 Conn. 378. It is thus to be expected that a

complainant will demonstrate behavior similar or identical to the behavior of other children who have been

sexually abused. Indeed, if that were not the case,

expert testimony on the subject would have no relevance. More significantly, Montelli, unlike the expert

in Favoccia, never drew a comparison between C and

the characteristics she described as typical of child

sexual abuse victims generally. Accordingly, we conclude that the defendant’s claim must fail.

III

The defendant’s final claim is that the trial court

improperly permitted the state to offer evidence of the

defendant’s prior misconduct when he was thirteen

years old because sexual misconduct committed by a

juvenile who is under the age of fourteen cannot be

indicative of a propensity to engage in aberrant and

compulsive criminal sexual behavior. The defendant

specifically claims that children under fourteen years

of age are presumed to be incapable of committing a

crime, and, therefore, in the absence of a threshold

determination that he had the capacity to commit a sex

offense when he was thirteen years old, the state was

barred by the incapacity or infancy doctrine from using

prior sexual misconduct evidence to show propensity

and to prove that he committed sexual abuse after his

fourteenth birthday. The state responds that the trial

court did not admit the prior misconduct evidence to

show propensity and that the defendant did not properly

preserve his claim because there is no indication in the

record that defense counsel objected to admission of

the testimony on propensity grounds. Moreover, even

if defense counsel did object on those grounds, the

state argues that the claim fails on the merits. We agree

with the state that the defendant’s claim is unpreserved.

The following additional facts are relevant to our

resolution of this claim. Prior to commencement of the

trial, an on-the-record conversation occurred between

the parties and the court referring to a lengthy meeting

held in chambers the previous day to discuss several

pending issues. According to the court, the prosecutor

indicated during the meeting that he had changed the

date in the information indicating when the defendant

allegedly began to sexually abuse C from a few months

before the defendant’s fourteenth birthday to the day

after his fourteenth birthday because he could not be

charged as a juvenile for sexual misconduct he committed before the age of fourteen. The court also stated

forthe record that the prosecutor had requested permission to introduce C’s testimony regarding incidents of
sexual abuse committed before the defendant’s fourteenth birthday and that defense counsel had objected

to admission of this testimony. The court then

announced that it had decided to overrule defense counsel’s objection.

The court explained: ‘‘The case law does permit, in

these circumstances involving the same victim, and I

think particularly in cases of this nature, where the

cutoff date is so artificial, [C] . . . to describe acts that

took place before the defendant’s fourteenth birthday.

I’m going to permit that, although I have told the state

. . . and the defense that I will be instructing the jury

that they must find [that the charged] conduct took

place after the date alleged in the information. And . . .

that’s a date certain. If . . . the jury cannot find,

beyond a reasonable doubt, that any misconduct

occurred after July, 2007, then the defendant would

have to be found not guilty.’’ The court did not explain

the evidentiary basis on which the prosecutor had relied

in seeking to introduce this testimony, nor did it refer

to the reasons that defense counsel had given for

objecting to the testimony.

At the start of trial, the court informed the jury that

the state was alleging that the defendant had committed

the charged offenses ‘‘between the period of July 17,

2007, and the month of February, 2009, at various locations . . . .’’ In accordance with the court’s pretrial

decision, however, C testified, without objection by

defense counsel, that he had been sexually abused by

the defendant in the spring of 2007 before the defendant’s fourteenth birthday in July, 2007. To prevent

any possible confusion due to this discrepancy, the

prosecutor later explained during closing arguments

that, although the abuse had begun before the date

indicated in the information, C’s testimony regarding

the prior abuse ‘‘gives you the whole picture, when it

happened, more importantly, how . . . it started. And

it also explains the arbitrary [start date of] July 17’’

contained in the information. In his closing argument,

defense counsel also referred to the prior misconduct

testimony when he twice described the defendant as a

‘‘thirteen year old, fourteen year old boy at the time

. . . .’’

Thereafter, the trial court gave the jury a limiting

instruction regarding the proper use of the prior sexual

misconduct evidence. The court first advised that, to

the extent the jurors might wonder why the information

indicated that the sexual abuse began on July 17, 2007,

the law provides that the ‘‘conduct of a person can

constitute a crime only if it is committed after the person reaches the age of fourteen.’’ The court then continued: ‘‘So, in this case, you may recall, the parties

stipulated that the defendant was born on July 16, 1993.

He therefore attained the age of fourteen on July 16,

2007. As a result, the state is only permitted to prosecute
the defendant for allegations after that date. That is

why the period alleged in the information starts on

July 17, 2007, because it is the first full day after the

defendant turned fourteen.

‘‘Now, it is true, during the course of the trial, you

may recall, that [C] testified [as] to certain behavior of

the defendant that is alleged to have occurred in the

months before July 17, 2007. And you were allowed

to hear that testimony concerning pre-July 17, 2007

behavior so you could learn of the entirety of the

sequence of events that [C] claims occurred.

‘‘However, insofar as your verdict in this case is concerned, pre-July 17, 2007 conduct cannot be the basis

of a guilty verdict. Rather, as I said earlier, in order for

the state to prove any of the charges in this case, the

state must prove beyond a reasonable doubt that at

least one act that constitutes a crime was committed

by the defendant on or after July 17, 2007.

‘‘Now, if you find, based on the evidence, that the

defendant did engage in prohibited behavior after July

17, 2007, and also before that date, then the defendant

would be guilty based on the post-July 17, 2007 conduct.

However, if you do not find that the state has proven

beyond a reasonable doubt that at least one act constituting a crime was committed on or after July 17, 2007,

then your verdict on that charge must be not guilty.

‘‘In sum, therefore, while you are entitled to consider

the evidence presented concerning the pre-July 17, 2007

behavior in order better to understand the events that

are alleged to have occurred, your verdict as to each

charge must be based solely upon conduct you find

to have occurred within the specific time period in

the information.’’

We first set forth the legal principles that govern our

resolution of preservation claims. ‘‘[T]he standard for

the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not

bound to consider claims of law not made at the trial.

. . . In order to preserve an evidentiary ruling for

review, trial counsel must object properly. . . . In

objecting to evidence, counsel must properly articulate

the basis of the objection so as to apprise the trial

court of the precise nature of the objection and its

real purpose, in order to form an adequate basis for a

reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be

limited to the ground asserted. . . .

‘‘These requirements are not simply formalities. They

serve to alert the trial court to potential error while

there is still time for the court to act. . . . Assigning

error to a court’s evidentiary rulings on the basis of

objections never raised at trial unfairly subjects the

court and the opposing party to trial by ambush. . . .

Thus, because the sina qua non of preservation is fair
notice to the trial court . . . the determination of

whether a claim has been properly preserved will

depend on a careful review of the record to ascertain

whetherthe claim on appeal was articulated below with

sufficient clarity to place the trial court on reasonable

notice of that very same claim.’’ (Citations omitted;

internal quotation marks omitted.) State v. Jorge P., 308

Conn. 740, 753–54, 66 A.3d 869 (2013).

In the present case, the meeting in which the prosecutor requested permission to present the prior misconduct testimony was held in chambers, and the court’s

on-the-record description of the meeting the following

day contains no information regarding the basis for the

prosecutor’s request or for defense counsel’s objection.

Moreover, when the court explained its reasons for

overruling the objection, it provided no legal authority

in support of its ruling. It merely stated: ‘‘The case law

does permit, in these circumstances involving the same

victim, and I think particularly in cases of this nature,

where the cutoff date is so artificial, [C] . . . to

describe acts that took place before the defendant’s

fourteenth birthday.’’ At that point, defense counsel

could have articulated the basis for his objection on

the record, but he failed to do so. Defense counsel

also made no further objection to the prior misconduct

testimony when C testified at trial. In fact, defense

counsel referred to the defendant on two occasions

during his closing argument as a thirteen and fourteen

year old boy when the misconduct occurred. Accordingly, our careful review of the record indicates that

counsel failed to articulate a basis for his objection to

the prior misconduct evidence with ‘‘sufficient clarity

to place the trial court on reasonable notice of that

very same claim.’’ State v. Jorge P., supra, 308 Conn. 754.

Moreover, our review of the record indicates that the

prior misconduct testimony was not admitted to show

propensity but to assist the jury in understanding the

meaning of the dates in the information defining the

period of time during which the alleged abuse took

place. See, e.g., State v. Ali, 233 Conn. 403, 427, 660

A.2d 337 (1995) (‘‘[prior] misconduct evidence may be

used to complete the story of the charged crime by

placing it in the context of nearby and nearly contemporaneous happenings’’ [internal quotation marks omitted]). The prosecutor contended in his closing argument

that the prior misconduct testimony gave the jury ‘‘the

whole picture, when it happened, more importantly,

how . . . it started. And it also explains the arbitrary

[start date of] July 17’’ contained in the information.

The trial court likewise noted in its final jury instructions that the prior misconduct testimony would allow

the jury to ‘‘learn of the entirety of the sequence of

events that [C] claims occurred.’’ The court later added:

‘‘[W]hile you are entitled to consider the evidence presented concerning the pre-July 17, 2007 behavior in

order better to understand the events that are alleged
to have occurred, your verdict as to each charge must

be based solely upon conduct you find to have occurred

within the specific time period in the information.’’ It

is thus apparent that the trial court admitted the prior

misconduct testimony to complete the story of why the

state had alleged July 17, 2007, as the date when the

crimes began, and not to show the defendant’s general

propensity to commit sexual abuse, including his

alleged abuse of C.

Because there is nothing in the record to indicate the

basis for defense counsel’s objection to admission of

the challenged testimony, there is no way of knowing

whether the trial court considered and rejected an argument by the defense that the testimony was inadmissible on propensity grounds, as the defendant argues on

appeal. If defense counsel did not object to admission

of the evidence on propensity grounds, the defendant

cannot ask this court to review the trial court’s decision

on those grounds, because such a review would result

in trial by ambuscade. See, e.g., Ferraro v. Ridgefield

European Motors,Inc., 313 Conn. 735, 759, 99 A.3d 1114

(2014) (‘‘[f]or us [t]o review [a] claim, which has been

articulated for the first time on appeal and not before

the trial court, would result in a trial by ambuscade of

the trial judge’’ [internal quotation marks omitted]). If

defense counsel did object on those grounds, he could

have explained his reasoning at several points during

the proceeding, including when the trial court initially

overruled his objection before trial and when C testified. Because he failed to do so, this court has no authority to review the defendant’s claim because it is

unpreserved.9

The judgments are affirmed.

In this opinion ROGERS, C. J., and PALMER, McDONALD, ESPINOSA and ROBINSON, Js., concurred.

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

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

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

ascertained. See General Statutes § 54-86e.

1 General Statutes § 53a-70 (b) (3) provides: ‘‘Any person found guilty

under this section shall be sentenced to a term of imprisonment and a period

of special parole pursuant to subsection (b) of section 53a-28 which together

constitute a sentence of at least ten years.’’

2 General Statutes (Rev. to 2007) § 53-21 (a), as amended by Public Acts

2007, No. 07-143, § 4, provides in relevant part: ‘‘[I]f the violation is of

subdivision (2) of this subsection and the victim of the offense is under

thirteen years of age, such person shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended

or reduced by the court.’’

3 We note that the sexual abuse that formed the basis for the defendant’s

convictions occurred over a span of time during which the defendant was

either fourteen or fifteen years old. For purposes of our analysis, we refer

to the defendant as fourteen and fifteen years old.

4 The eighth amendment to the United States constitution provides:

‘‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.’’

The cruel and unusual punishments clause of the eighth amendment is

made applicable to the states through the due process clause of the fourteenth amendment. E.g., Tuilaepa v. California, 512 U.S. 967, 970, 114 S.

Ct. 2630, 129 L. Ed. 2d 750 (1994).
5 General Statutes § 46b-127 (a) (1) provides in relevant part: ‘‘The court

shall automatically transfer from the docket for juvenile matters to the

regular criminal docket of the Superior Court the case of any child charged

with the commission of . . . a class A or B felony . . . provided such

offense was committed after such child attained the age of fourteen years

and counsel has been appointed for such child if such child is indigent. . . .’’

Although § 46b-127 has been the subject of several amendments since the

alleged crimes in the present case occurred, those amendments have no

bearing on the merits of this appeal. For convenience, we refer to the current

revision of § 46b-127.

6 As we note subsequently in this opinion, the trial court sentenced the

defendant to mandatory terms of incarceration for both the first degree

sexual assault and risk of injury counts but ordered that they be served concurrently.

7 The term ‘‘juvenile offenders’’ refers in all three cases to offenders who

were under the age of eighteen when they committed their crimes.

8

Justice Eveleigh’s lengthy analysis of the constitutionality of mandatory

minimum sentences for juvenile offenders is deeply flawed. Among other

things, Justice Eveleigh improperly (1) construes Roper, Graham and Miller

as requiring ‘‘individualized, fully discretionary sentencing’’ for all juvenile

offenders, ‘‘including the ability to depart downward from a mandatory

minimum sentence,’’ (2) relies on a recent Iowa case in which the court

concluded that mandatory minimum sentences for juvenile offenders are

impermissible under the Iowa constitution; see State v. Lyle, 854 N.W.2d

378, 400 (Iowa 2014); and (3) attributes views and conclusions to the majority

that find no support in this opinion. We discuss each of these flaws in turn.

We begin with Justice Eveleigh’s repeated claim that Roper, Graham and

Miller require ‘‘individualized, fully discretionary sentencing’’ for all juvenile

offenders because Miller allegedly suggests that ‘‘neither the crime nor its

mandatory minimum punishment should be a factorin a sentencing court’s

ability to comply with the eighth amendment to the United States constitution . . . .’’ (Emphasis added.) The language in Miller on which Justice

Eveleigh relies provides that ‘‘[n]one of what [Roper and Graham] said

about children—about their distinctive (and transitory) mental traits and

environmental vulnerabilities—is crime specific.’’ Miller v. Alabama, supra,

132 S. Ct. 2465. Justice Eveleigh’s broad interpretation of this language,

however, is unsupportable. The full passage from which it is taken provides:

‘‘Graham’s flat ban on life without parole applied only to nonhomicide

crimes, and the [c]ourt took care to distinguish those offenses from murder,

based on both moral culpability and consequential harm. . . . But none of

what it said about children—about their distinctive (and transitory) mental

traits and environmental vulnerabilities—is crime-specific. Those features

are evident in the same way, and to the same degree, when (as in [Miller])

a botched robbery turns into a killing. So Graham’s reasoning implicates

any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.’’ (Citation omitted; emphasis

added.) Id. From this more complete rendition of the passage, it is clear

that the court in Miller was referring only to the fact that Graham’s reasoning

regarding a sentence oflife without the possibility of parole applied equally to

both homicide and nonhomicide offenses committed by juvenile offenders.

There is nothing in the passage suggesting that the court was also referring

to less severe punishments or that trial courts should have unfettered discretion in sentencing juvenile offenders. Accordingly, to the extent Justice

Eveleigh adopts a far more expansive interpretation of Miller, it is utterly

lacking in support, and all other conclusions that flow from his interpretation

are also lacking in support.

Second, although Justice Eveleigh relies extensively on a recent Iowa

Supreme Court decision holding that mandatory minimum sentences for

juvenile offenders are impermissible, he omits the fact that the Iowa court

chose not to decide the defendant’s claim in that case under federal law,

as the defendant originally argued, but, rather, under the Iowa constitution

after requesting additional briefing from the parties on that issue. See State

v. Lyle, supra, 854 N.W.2d 380, 382. Justice Eveleigh also omits the fact that,

in interpreting the Iowa constitution, the Iowa Supreme Court relied in part

on the state legislature’s decision in 2013 to expand the discretion of state

courts in juvenile matters by amending Iowa’s sentencing statutes to remove

mandatory sentencing for juveniles in most cases; id., 387–88; on other

provisions in the Iowa criminal statutes vesting considerable discretion in

courts when deciding juvenile matters; id., 388; and on a trilogy of recent

juvenile cases decided by the court under the Iowa constitution. Id., 395.

Finally, Justice Eveleigh omits the fact that the Iowa court recognized that

‘‘no other court in the nation has held that its constitution or the [f]ederal

[c]onstitution prohibits a statutory schema that prescribes a mandatory
minimum sentence for a juvenile offender’’; (emphasis added) id., 386; and

that ‘‘no . . . national consensus exists against the imposition of mandatory

sentences on juvenile offenders; the practice is common across jurisdictions.’’ (Internal quotation marks omitted.) Id., 387, quoting A. Dutton, comment, ‘‘The Next Frontier of Juvenile Sentencing Reform: Enforcing Miller’s

Individualized Sentencing Requirement Beyond the JLWOP Context,’’ 23

Temp. Pol. & Civ. Rts. L. Rev. 173, 195 (2013). Justice Eveleigh thus ignores

key aspects of the Iowa court’s analysis that render its decision inapplicable

in resolving the defendant’s claim in the present case that his mandatory

minimum sentences were unconstitutional under federal law.

Third, Justice Eveleigh overlooks the fact that the defendant seeks review

of his sentences only under Roper, Graham and Miller, and, therefore,

Justice Eveleigh improperly castigates the majority for failing to consider

unrelated factors that have no bearing on the limited issue before this court.

For example, Justice Eveleigh suggests that the majority should have applied

Alleyne v. United States, U.S. , 133 S. Ct. 2151, 2160, 186 L. Ed. 2d

314 (2013), a sixth amendment case in which the United States Supreme

Court determined, according to Justice Eveleigh, that ‘‘the floor of a sentencing range mattered just as much to the defendant as the ceiling in giving

effect to the protections afforded by the constitution,’’ even though that

case has no relevance in this eighth amendment appeal involving juvenile

sentencing. Similarly, in claiming that the majority should have compared

the severity of the sentences in the present case with the sentences for

other crimes within this and other jurisdictions, and should have considered

objective indicia of society’s standards, as expressed in legislative enactments and state practice, Justice Eveleigh would have this court go far

beyond the defendant’s limited claim that his mandatory minimum sentences

are unconstitutional under Roper, Graham and Miller.

Justice Eveleigh also greatly simplifies and misconstrues our analysis

when he suggests that the majority believes that the ‘‘dispositive’’ factor

under the three United States Supreme Court cases is the severity of the

punishment and that the rationales of those cases apply with less force

when the sentence imposed is not death or life imprisonment without the

possibility of parole. Contrary to Justice Eveleigh’s view, the majority does

not believe that the severity of the punishment is the dispositive factor

under the three Supreme Court cases but that it is an important factor in

understanding the extent to which the holdings in those cases apply to this

court’s analysis of the mandatory minimum sentences in the defendant’s

case. The majority also does not believe that the three cases apply with

less force when the sentence is not one of the two most extreme punishments

available to the court. The principle of proportionality that lies at the heart

of the three Supreme Court cases applies with equal force to all sentencing

decisions. Because the severity of the sentences was an important consideration in the three Supreme Court cases, however, this court is not required

to reach the same conclusion regarding the proportionality ofthe defendant’s

far more lenient sentence in the present case.

9 We also reject the defendant’s claim that the trial court committed plain

error in admitting the prior misconduct testimony to show propensity. ‘‘[The

plain error] doctrine, codified at Practice Book § 60-5, 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.

. . . Plain error is a doctrine that should be invoked sparingly.’’ (Internal

quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 76–77, 60 A.3d

271 (2013).

In the present case, there is nothing in the record to indicate that the

trial court admitted testimony regarding the defendant’s prior misconduct

to demonstrate propensity, just as there is nothing in the record to indicate

that defense counsel objected to admission of the testimony on that ground.

Rather, the record indicates that the trial court admitted the testimony to

complete the story of why the state had charged the defendant with criminal

conduct that began on the day after his fourteenth birthday. We therefore

conclude that there is no basis for the defendant’s claim that the trial court

committed plain error in admitting the testimony to show the defendant’s

propensity.