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STATE OF CONNECTICUT v. RUFFINO FERNANDEZ

(AC 38088)

DiPentima, C. J., and Keller and West, Js.

Argued October 25—officially released December 27, 2016

(Appeal from Superior Court, judicial district of

Hartford, Kwak, J.)

Richard S. Cramer, for the appellant (defendant).

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

whom, on the brief, were Gail P. Hardy, state’s attorney, and John F. Fahey, senior assistant state’s attorney, for the appellee (state).
Opinion

KELLER, J. The defendant, Ruffino Fernandez,

appeals following his conviction of one count each of

risk of injury to a child in violation of General Statutes

§ 53-21 (a) (2), sexual assault in the second degree in

violation of General Statutes § 53a-71 (a)(1), and sexual

assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (B). The defendant claims that

(1)the trial court abused its discretion by not permitting

him to make a missing witness argument during closing

remarks; (2) the state committed prosecutorial impropriety by basing part of its closing argument on facts

not in evidence; and (3) he was deprived of his rights

to an impartial tribunal and a fair trial when the trial

court made comments in front of the jury that bolstered

the credibility of the victim. We disagree with the defendant and affirm the judgment of conviction.

The jury could reasonably have found the following

facts. During the relevant time period, the defendant

owned and operated Keithbel Market, a grocery store

on Zion Street in Hartford. Nearby lived J,1

then twelve

to thirteen years old, along with her family. A family

friend, Wilnelia ‘‘Wendy’’ David, also lived with J’s family for a period of time, and, thereafter, in another apartment in the same building.

Prior to the events in question, David developed an

arrangement with the defendant whereby she had sex

with him in the basement of the market in exchange

for cash or diapers for her son. Between September

and December, 2012, David brought J along with her

during visits to the market. On approximately four of

these occasions, the defendant brought J down to the

basement of the market and sexually assaulted her.

David observed at least one of these assaults. During

some or all of these incidents, the defendant touched

and kissed J’s breasts under her clothes; touched her

buttocks over her clothes; and digitally penetrated her

vagina. After at least some of these incidents, the defendant gave J money.

David was charged as an accessory to risk of injury

to a child in violation of § 53-21 (a) (2). In exchange

for a sentence of five years in prison and five years of

special parole (the maximum time to which she was

exposed was twenty years), David testified against

the defendant.

After a four day trial, the jury convicted the defendant

of the three counts set forth previously. The court,

Kwak, J., sentenced the defendant to a total effective

sentence of forty years to serve, followed by five years

of special parole, and registration for life as a sex

offender. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its
discretion by not permitting him to make a missing

witness argument during his closing remarks. We are

not persuaded.

The following additional facts are relevant to our

discussion. At trial, David testified that on one occasion

she ‘‘lost track’’ of J during one of their visits to the

defendant’s store. At the time, David was joined by J’s

sister. David and J’s sister called out for J in an attempt

to locate her. David and J’s sister eventually observed

J, followed by the defendant, coming up the basement

staircase of the market.

The defendant requested leave from the court to

make a missing witness argument during closing

remarks. See State v. Mungroo, 104 Conn. App. 668,

677, 935 A.2d 229 (2007), cert. denied, 285 Conn. 908,

942 A.2d 415 (2008). Specifically, the defendant wished

to argue that the state’s failure to call J’s sister to testify

in corroboration of David’s testimony that both

observed J and the defendant ascending the basement

staircase suggested that J’s sister’s testimony would be

detrimental to the state’s case. The defendant argued

that because David had, in the defendant’s words, ‘‘credibility issues,’’ it would have been natural for the state

to call J’s sister to bolster David’s testimony. Thus,

according to the defendant, he should have been permitted to ask the jury to draw an adverse inference from

the absence of such testimony. The court denied the

defendant’s request, reasoning that the defendant’s

offer of proof was mere speculation.

The following legal principles govern our resolution

of this claim. ‘‘We review the court’s decision allowing

the [defendant] to include a missing witness argument

in [his] closing argument for abuse of discretion. . . .

It is within the discretion of the trial court to limit the

scope of final argument. . . . The broad discretion

vested in trial courts by [State v. Malave, 250 Conn.

722, 737 A.2d 442 (1999) (setting forth requirements for

making missing witness argument), cert. denied, 528

U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000)]

mirrors the general standards regarding the trial court’s

ability to limit closing argument. [T]he scope of final

argument lies within the sound discretion of the court

. . . subject to appropriate constitutional limitations.

. . . We first determine whether the trial court abused

its discretion in light of the information before the court

when it ruled on the motion. If there was such an abuse

of discretion, the reviewing court must determine

whether the defendant has established that, in light of

the totality of evidence at trial and the trial court’s

subsequent instructions to the jury, the impropriety

constituted harmful error.’’ (Internal quotation marks

omitted.) State v. Campbell, 149 Conn. App. 405, 419,

88 A.3d 1258, cert. denied, 312 Conn. 907, 93 A.3d

157 (2014).

‘‘Under the sixth and fourteenth amendments to the
United States constitution, a criminal defendant has

a constitutionally protected right to make a closing

argument. That right is violated not only when a defendant is completely denied an opportunity to argue

before the court or the jury after all the evidence has

been admitted, but also when a defendant is deprived

of the opportunity to raise a significant issue that is

reasonably inferable from the facts in evidence. . . .

‘‘In [State v. Malave, supra, 250 Conn. 739], our

Supreme Court abandoned, in criminal cases, the [rule

of Secondino v. New Haven Gas Co., 147 Conn. 672,

165 A.2d 598 (1960)], also known as the missing witness

rule, which sanctioned, under certain circumstances, a

jury instruction that an adverse inference may be drawn

from the failure of a party to produce a witness.

Although our Supreme Court abandoned the Secondino

rule, it did not intend to prohibit counsel from making

appropriate comment, in closing arguments, about the

absence of a particular witness, insofar as that witness’

absence may reflect on the weakness of the opposing

party’s case. . . . Comments in closing argument that

do not directly exhort the jury to draw an adverse inference by virtue ofthe witness’ absence do not necessarily

fall under the ambit of Secondino . . . and accordingly

are not forbidden by Malave. Our Supreme Court further provided that [o]f course, the trial court retains

wide latitude to permit or preclude such a comment,

and may, in its discretion, allow a party to adduce additional evidence relative to the missing witness issue.

. . .

‘‘It is within the discretion of the trial court to limit

the scope of final argument to prevent comment on

facts that are not properly in evidence, to prevent the

jury from considering matters in the realm of speculation and to prevent the jury from being influenced by

improper matters that might prejudice its deliberations.

. . . While we are sensitive to the discretion of the

trial court in limiting argument to the actual issues of

the case, tight control over argument is undesirable

when counsel is precluded from raising a significant

issue. . . .

‘‘A missing witness argument is appropriate in limited

circumstances. Counsel may only invite the jury to draw

reasonable inferences on the basis of facts in evidence,

and the court’s exercise of discretion as to whether to

permit such argument is dependent on the facts made

known to it. For this reason, it is necessary for counsel,

through facts and argument, to justify a request to make

a missing witness argument. Our decisional law reflects,

for example, that defense counsel should explain how

the state’s decision not to call [a person as a witness]

exposed a weakness in the state’s case and should make

an offer of proof regarding the substance of [such person’s] potential testimony. . . . Stated otherwise,

counsel must demonstrate that such witness was avail-
able to testify, set forth the substance of the testimony

that such witness would have given had he been called

to the witness stand and explain how his testimony

would have been detrimental to the state’s case. Evidence that would have been merely cumulative or of no

consequence to a reasonable assessment of the state’s

case, for example, would not warrant such an argument.’’ (Citations omitted; emphasis added; internal

quotation marks omitted.) State v. Mungroo, supra, 104

Conn. App. 675–77.

The defendant argues on appeal that the court abused

its discretion by precluding his missing witness argument because he established at trial that J’s sister was

available to testify, and that he sufficiently articulated

the substance of such testimony and how it would have

been detrimental to the state’s case. See id., 677. We

disagree for the reasons set forth below.

As to J’s sister’s availability as a witness, the defendant argued before the trial court that ‘‘the law as it

stands suggests that she was apparently available to

both sides, and I could have called her if I wished to

raise this point.’’ In denying the defendant’s request to

make the missing witness argument, the court did not

specifically address the issue of J’s sister’s availability.

On appeal, the defendant points to the fact that ‘‘[J’s

sister] was still a teenager at the time of trial and lived

in the same apartment building as her mother, who

testified, and as [J].’’ The defendant continues: ‘‘As a

family member, there should be little doubt that the

state either knew or could have readily found this witness through the cooperation of [J], her brother, also

a witness, or [J’s] mother or father who also testified.

Defendant, in order to secure his right to make the

argument, need not show that he himself knows exactly

where this witness was at the time of trial. The state

allegedly did not know. But there was no question it

could have readily found that out.’’

We emphasize that, in order to succeed on a request

to make a missing witness argument, ‘‘it is necessary

for counsel, through facts and argument, to justify

[such] request . . . .’’ (Emphasis added.) State v. Mungroo, supra, 104 Conn. App. 677. We conclude that the

defendant’s offer of proof at trial did not sufficiently

establish that J’s sister was available to testify. The

defendant presented nothing to the trial court concerning the availability of J’s sister other than a conclusory

statement that she was available and that the defendant

‘‘could have called her if I wished to raise this point.’’

The defendant points now to evidence of J’s sister’s

living arrangements atthe time ofthe assaults to suggest

that the state could have obtained her testimony without difficulty, but that is simply not the argument that

the defendant made before the trial court.2

In light of

such dearth of information, we reject the defendant’s

argument that his offer of proof adequately demon-
strated that J’s sister was available to testify.

We are likewise not persuaded that the defendant

adequately set forth the substance of J’s sister’s testimony and how it would have been detrimental to the

state’s case. As previously explained, the defendant’s

argument to the court appears to have proceeded as

follows: David, it is claimed, had serious credibility

problems as a witness; therefore, the state needed to

bolster her credibility by presenting J’s sister as a corroborating witness; consequently, the fact that the state

did not present J’s sister’s testimony suggests that such

testimony would have harmed the state’s case. The

defendant, as he must, argues much the same upon

appeal. See Janusauskas v. Fichman, 264 Conn. 796,

807, 826 A.2d 1066 (2003) (‘‘a party may not try its

case on one theory and appeal on another’’ [internal

quotation marks omitted]).

The court did not abuse its discretion by precluding

the defendant’s missing witness argument on the

ground that his offer of proof was based on mere speculation. Aside from hypothesizing that J’s sister’s testimony would not be ‘‘helpful’’ to the state, the defendant

provided no actual information as to the expected content of the testimony or its prejudicial impact on the

state’s case. ‘‘Where, as here, a defendant’s claimed

entitlement to make a missing witness argument rests

on mere speculation, the court’s exercise of discretion

in denying permission to make such argument does not

reflect an abuse of its discretion.’’ State v. Mungroo,

supra, 104 Conn. App. 678–79; see also State v. Graham,

67 Conn. App. 45, 49, 787 A.2d 11 (2001) (trial court

did not abuse discretion in precluding missing witness

argument because defendant ‘‘offered only a blanket

statement that [the witness’] failure to testify demonstrated a weakness in the state’s case’’), cert. denied,

259 Conn. 911, 789 A.2d 996 (2002).

Put simply, the defendant’s argument that the state’s

failure to put forth the testimony of J’s sister suggests

that such testimony would have been harmful to the

state’s case does not appear to us to be a ‘‘reasonable

inference’’ based on the record. See State v. Mungroo,

supra, 104 Conn. App. 677 (‘‘[c]ounsel may only invite

the jury to draw reasonable inferences on the basis of

facts in evidence’’). We conclude so for two reasons.

First, contrary to the defendant’s contention, we do

not view David’s testimony as particularly in need of

corroboration. The defendant asserts that David ‘‘testified with considerable baggage’’ and that ‘‘[h]er testimony was replete with inconsistencies and admitted

discrepancies.’’ The defendant, however, did not identify any alleged inconsistency or discrepancy at trial,

nor does he do so on appeal. The defendant does point

to the fact that David testified against the defendant in

exchange for a more lenient sentence as damaging to

her credibility. He elides the fact, however, that were
David to lie during her testimony, pursuant to her plea

agreement with the state, she would have faced up

to twenty years in prison. The existence of the plea

agreement alone does not appear to us to warrant concluding that the testimony of J’s sister would have been

harmful to the state’s case.

Second, we do not see the particularimport of casting

doubt on the event that David described—namely, that

she and J’s sister observed J and the defendant

ascending the market’s basement staircase. In other

words, such event was simply not so central to the

state’s case that a failure to call J’s sister to corroborate

it suggests that her testimony would have been harmful

to the state. For one, David’s testimony about the staircase scene did not describe any sexual acts by the

defendant. Additionally, David recounted an entirely

separate incident during which she observed the defendant licking J’s breasts. There is no indication that J’s

sister was present during that event. Finally, J testified

that the defendant assaulted her approximately four

times in the basement of the market, further suggesting

that discrediting David’s testimony about the staircase

scene (which, again, did not describe any sexual contact) would not have cut to the heart of the state’s

case. In light of the foregoing, we fail to see how the

defendant’s argument that J’s sister’s testimony would

have been harmful to the state’s case is a ‘‘reasonable

inference’’ based on the record. Accordingly, we conclude that the trial court did not abuse its discretion

in precluding such argument.3

II

The defendant next claims that the state committed

prosecutorial impropriety by basing part of its closing

argument on facts not in evidence. We find no error

with respect to this claim.

The following additional facts are relevant to our

discussion. As previously noted, the defendant was

charged with and convicted of, inter alia, one count of

risk of injury to a child in violation of § 53-21 (a) (2).

Section 53-21 (a) provides, in relevant part: ‘‘Any person

who . . . (2) has contact with the intimate parts . . .

of a child under the age of sixteen years or subjects a

child under sixteen years of age to contact with the

intimate parts of such person, in a sexual and indecent

manner likely to impair the health or morals of such

child . . . shall be guilty of . . . (C) a class B felony

. . . .’’ (Emphasis added.)

At trial, the state called as an expert witness Audrey

Courtney, a pediatric nurse practitioner at Saint Francis

Hospital. Courtney testified that she had performed

child abuse evaluations since 1990 and had examined

child abuse victims who reported digital penetration.

Courtney further testified that she had observed sexually transmitted diseases among children who had
reported solely digital penetration.

During closing remarks, the state, in arguing for conviction under § 53-21 (a) (2), stated: ‘‘[T]he last element

of [§ 53-21 (a) (2)] is that it’s likely to impair the health

or morals of a child. . . . Morals, that’s for you to

decide in the more general sense of a fifty-something

year old man doing this to a thirteen year old child.

‘‘But with respect to health, I would say you had

actually some more specific information, which [was]

Audrey Courtney coming in and talking about the idea

that even through digital penetration there is a likelihood—she has seen cases where there’s been a disclosure of simply digital penetration which resulted in

gonorrhea, HIV, herpes, the like, sexually transmitted

diseases among children. Again, the state doesn’t have

to show she has any of those diseases, just that the

actions of the defendant are such that the impairment

of health would be likely based on his actions.’’

The defendant argues that the state committed prosecutorial impropriety because Courtney’s testimony did

not support the state’s contention that digital penetration by itself would likely result in the transmission of

sexually transmitted diseases. According to the defendant, ‘‘Courtney’s testimony did not state there was a

likelihood nor even implied it nor was there any basis

for the jury to infer it. All the jury knew was that of the

thousands of cases, some of the children had sexually

transmitted diseases.’’ We conclude that the state’s

comment did not deprive the defendant of a fair trial.

As a preliminary matter, we note that the defendant

did not object to the preceding statements at trial. ‘‘It

is well established law, however, that a defendant who

fails to preserve claims of prosecutorial [impropriety]

need not seek to prevail underthe specific requirements

of State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823

(1989), and, similarly, it is unnecessary for a reviewing

court to apply the four-pronged Golding test. . . . Our

Supreme Court has explained that the defendant’s failure to object at trial to . . . the [occurrence] that he

now raises as [an instance] of prosecutorial impropriety, though relevant to our inquiry, is not fatal to review

of his [claim]. . . . This does not mean, however, that

the absence of an objection at trial does not play a

significant role in the determination of whether the

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

the contrary, we continue to adhere to the well established maxim that defense counsel’s failure to object

to the prosecutor’s argument when it was made suggests that defense counsel did not believe that it was

[improper] in light of the record of the case at the time.’’

(Citations omitted; internal quotation marks omitted.)

State v. Maner, 147 Conn. App. 761, 782, 83 A.3d 1182,

cert. denied, 311 Conn. 936, 88 A.3d 550 (2014).

The following legal principles concerning prosecu-
torial impropriety govern our resolution of this claim.

‘‘Our jurisprudence concerning prosecutorial impropriety during closing argument is well established. [I]n

analyzing claims of prosecutorial [impropriety], we

engage in a two step analytical process. The two steps

are separate and distinct: (1) whether [impropriety]

occurred in the first instance; and (2) whether that

[impropriety] deprived a defendant of his due process

right to a fair trial. Put differently, [impropriety] is

[impropriety], regardless of its ultimate effect on the

fairness of the trial; whether that [impropriety] caused

or contributed to a due process violation is a separate

and distinct question . . . . [O]ur determination of

whether any improper conduct by the state’s attorney

violated the defendant’s fair trial rights is predicated

on the factors set forth in State v. Williams, [204 Conn.

523, 540, 529 A.2d 653 (1987)], with due consideration

of whether that [impropriety] was objected to at trial.

. . . These factors include the extent to which the

[impropriety] was invited by defense conduct or argument, the severity of the [impropriety], the frequency

of the [impropriety], the centrality of the [impropriety]

to the critical issues in the case, the strength of the

curative measures adopted, and the strength of the

state’s case. . . .

‘‘A prosecutor may invite the jury to draw reasonable

inferences from the evidence; however, he or she may

not invite sheer speculation unconnected to evidence.

. . . Moreover, when a prosecutor suggests a fact not

in evidence, there is a risk that the jury may conclude

that he or she has independent knowledge of facts that

could not be presented to the jury.’’ (Citations omitted;

internal quotation marks omitted.) State v. Carrasquillo, 290 Conn. 209, 222, 962 A.2d 772 (2009).

Assuming, without deciding, that the state’s mention

of the ‘‘likelihood’’ of contracting sexually transmitted

diseases through digital penetration constituted prosecutorial impropriety, we conclude that the comment

did not deprive the defendant of his right to a fair trial.

The Williams factors guide our decision. See id. While

the comment was not invited by defense counsel or

argument, we find that the rest of the factors weigh

in the state’s favor. The severity of the comment was

minimal—the state immediately corrected itself by stating that Courtney had merely observed cases in which

child victims reporting solely digital penetration also

suffered from sexually transmitted diseases. The frequency of the remark—it occurred once—was also

minimal.

The remark was not critical to the state’s case

because the jury could have found the defendant guilty

under § 53-21 (a) (2) on the alternative ground that his

actions were likely to impair J’s morals. See State v.

Romero, 269 Conn. 481, 493, 849 A.2d 760 (2004)

(‘‘[o]nce the jury determined that . . . intercourse and
mutual sexual touching took place . . . it is difficult

to imagine a finding that this conduct could not be

deemed likely—in the context of probably—to impair

[the nine year old victim’s] morals’’ [emphasis in original]). In its closing remarks, the state explicitly argued

for a guilty verdict based on the impairment of morals

prong of § 53-21 (a) (2). The court instructed the jury

as to this prong as well. ‘‘The jury [is] presumed to

follow the court’s directions in the absence of a clear

indication to the contrary.’’ (Internal quotation marks

omitted.) State v. Negron, 221 Conn. 315, 331, 603 A.2d

1138 (1992).

As to curative measures taken by the court, while

the court did not provide a curative instruction specifically in response to the state’s comment because the

defendant did not object to the remark at trial, the court

instructed the jury that the statements and arguments

of the attorneys were not evidence, and that ‘‘[i]f the

facts as you remember them differ from the way the

lawyers have stated them[,] your memory of them

controls.’’

Finally, as to the strength of the state’s case, we

conclude that it was ‘‘sufficiently strong so as to not

be overshadowed by the [state’s comment].’’ State v.

Angel T., 292 Conn. 262, 293, 973 A.2d 1207 (2009).

While the state’s case as to the impairment of health

prong of § 53-21 (a) (2) appears to us not to be particularly strong,4 as previously explained, the jury could

have found the defendant guilty under the statute on

the alternative ground that his abuse of J was likely to

impair her morals. Although the defendant argues that

the jury could not have convicted him under the impairment of morals prong because the state’s argument and

the trial court’s instructions as to that prong were, for

various reasons, inadequate,5 we find that not to be the

case. Again, in closing argument, the state argued for

conviction under both the health and morals prongs of

§ 53-21 (a) (2), and the judge instructed the jury as

to both bases of liability as well. As to the evidence

presented by the state, the jury heard the testimony of

two eyewitnesses—J and David—who attested to the

sexual abuse. J’s father and brother testified as constancy of accusation witnesses. Three police officers

who investigated the case also testified for the state.

One officer testified that J accurately identified the

defendant and David in photographic arrays. The officer

also testified as to the defendant’s statements and

behavior during an interview the officer conducted during the investigation. According to the officer, although

the defendant denied the allegations against him in the

interview, he indicated that he had brought adult

women down to the store’s basement for sex. When

the officer showed the defendant a picture of David, the

officer observed the defendant’s hand tremble. Another

officer testified that, during his investigation of the allegations, he took photographs of the market, including
of the market’s basement. Those photographs were

entered as trial exhibits. Certain photographs bore similarities to a picture J drew of the basement during an

interview at Saint Francis Hospital about the allegations. In light of such evidence, the defendant himself

acknowledged in his appellate brief that ‘‘the jury had

sufficient evidence from which it could have found that

the defendant’s actions were likely to impair the child’s

morals . . . .’’ The state’s case for the impairment of

morals under § 53-21 (a) (2)—sexual contact with a

twelve to thirteen year old and paying her money afterwards—was strong enough to withstand the alleged

impropriety. For the foregoing reasons, the Williams

factors are unavailing to the defendant. Accordingly,

the defendant cannot prevail on his claim of prosecutorial impropriety.

III

Finally, the defendant claims that he was deprived

of his rights to an impartial tribunal and a fair trial

when the trial court made comments in front of the

jury that bolstered the credibility of the victim. We do

not agree.

The following additional facts are relevant to our

discussion. The state called J as a witness during the

trial. When the state asked J where on her body the

defendant had touched her, J was unwilling or unable

to respond verbally, and was instead allowed to write

certain anatomical terms on a piece of paper. When J

failed to respond verbally to one such question, the trial

court told J, ‘‘Take your time; I know this is difficult’’

and ‘‘You don’t have to be nervous.’’ Later in J’s testimony, the court again told her, ‘‘I know it’s difficult for

you’’ and ‘‘I know this was very difficult.’’6 All of these

statements were made in front of the jury. The defendant did not object to them during the trial. He argues

on appeal that these statements deprived him of a fair

trial and impartial tribunal because they bolstered J’s

credibility. According to the defendant, the court’s comments conveyed to the jury that it believed J’s allegations because the only reason it would be ‘‘difficult’’

for her to testify was if the allegations were true. ‘‘[I]n

showing compassion to a witness and empathizing with

the great difficulty which she had in testifying about

her ordeal,’’ the defendant argues, ‘‘[the court] blatantly

enhanced her credibility in the minds of the jury.’’ As

the defendant did not object to the court’s statements

at trial, he pursues relief under State v. Golding, supra,

213 Conn. 233. We do not find the defendant’s argument persuasive.

‘‘To prevail on his unpreserved constitutional claim,

the defendant must satisfy all four conditions set forth

in Golding. He must show that(1)the record is adequate

to review the alleged claim of error; (2) the claim is

of constitutional magnitude alleging the violation of a

fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the defendant of a

fair trial; and (4) if subject to harmless error analysis,

the state has failed to demonstrate harmlessness of the

alleged constitutional violation beyond a reasonable

doubt. . . . Failure to satisfy any of the four conditions

will cause the defendant’s claim to fail. . . . The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most

relevant in the particular circumstances.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Eason, 116 Conn. App. 601, 603–604, 976 A.2d 797, cert.

denied, 294 Conn. 902, 982 A.2d 646 (2009); see also In

re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015)

(modifying third prong of Golding). In the present case,

we conclude that the record is adequate to review the

claim and that the claim is of constitutional magnitude

alleging violation of a fundamental right. We therefore

proceed to Golding’s third prong.

The following legal principles pertaining to the

judge’s role in conducting a criminal trial guide our

analysis. ‘‘While no precise theorem can be laid down,

we have held that it is proper for a trial court to . . .

[intervene] where the witness is embarrassed, has a

language problem or may not understand a question.’’

(Internal quotation marks omitted.) State v. Iban C.,

275 Conn. 624, 652, 881 A.2d 1005 (2005); see also State

v. Graham, 21 Conn. App. 688, 692–93, 575 A.2d 1057

(‘‘[a] trial court has a discretionary right to intervene in

the examination of witnesses where such intervention is

necessary to clarify confusing testimony, restrain an

obstreperous witness, or elucidate a witness’ understanding of a question’’), cert. denied, 216 Conn. 805,

577 A.2d 1063 (1990). ‘‘If the judge chooses to intervene

in a criminal trial, such intervention mustreach a significant extent and be adverse to the defendant to a substantial degree before risking impaired functioning of

the finder of fact or the appearance of an impartial

judge.’’ (Emphasis added; internal quotation marks

omitted.) State v. Eason, supra, 116 Conn. App. 605.

While there are perhaps more neutral ways of

obtaining cooperation from a reluctant witness whose

testimony is key to the case than stating ‘‘I know this

is difficult’’ and ‘‘You don’t have to be nervous’’ in the

presence ofthe jury, we cannot say that such statements

were so significant, and the harm to the defendant so

substantial, as to deprive the defendant of a fair trial

and an impartial tribunal. In our view, the court’s statements did not imply that the court found J a credible

witness or that the defendant had done anything wrong,

but were, rather, an attempt by the court to elicit testimony from a young witness who was noticeably nervous while testifying. Moreover, in its instructions to the

jury, the court cured any potential misapprehensions

by stating that ‘‘[y]ou should not be influenced by my

actions during the trial . . . in questions to witnesses

. . . . You are not to take my actions as any indication
of my opinion as to how you should determine the

issues of fact.’’ As previously explained, ‘‘[t]he jury [is]

presumed to follow the court’s directions in the absence

of a clearindication to the contrary.’’(Internal quotation

marks omitted.) State v. Negron, supra, 221 Conn. 331.

Consequently, we conclude that these comments did

not deprive the defendant of his rights to a fair trial

and an impartial tribunal.

The judgment is affirmed.

In this opinion the other judges concurred.

1

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

victims of the crime of risk of injury to a child, we decline to identify the

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

See General Statutes § 54-86e.

2 For this reason we also reject the defendant’s analogy to State v. Daniels,

180 Conn. 101, 429 A.2d 813 (1980). In Daniels, the defendant objected to

the state’s missing witness argument on the ground that the availability of

the witness was not established. Id., 107. On trial for sexual assault, the

defendant in Daniels testified in his own defense that he was asleep in bed

with another woman at the time the assault was alleged to have occurred.

Id. During cross-examination of the defendant, the state asked if he knew

where this purported alibi witness was. Id., 110. The defendant responded,

‘‘She’s home, I guess.’’ (Internal quotation marks omitted.) Id. Our Supreme

Court concluded that such testimony was sufficient to support a finding by

the jury that the missing witness was available to testify. Id. The defendant

in the present appeal argues that Daniels establishes that ‘‘the party seeking

permission to make the missing witness argument need not show certainty

of the availability of the witness when a family is involved.’’ In the present

case, the defendant not only failed to show, in his words, ‘‘certainty’’ that

J’s sister was available to testify, but failed to provide any factual basis

at all in support of such conclusion. Daniels, therefore, is unavailing to

the defendant.

3 We briefly dispose of two ancillary arguments made by the defendant:

The defendant first argues that ‘‘[t]he state’s claim that [J’s] sister would

be cumulative to the testimony of [David] is simply no basis for the court

to have denied the motion.’’ The premise of this argument is belied by the

record. The trial court did not deny the defendant’s request because it

concluded that J’s sister’s testimony would be cumulative. Rather, the court

denied the request because the defendant’s offer of proof was speculative.

The defendant’s reliance on State v. Saunders, 114 Conn. App. 493, 969 A.2d

868, cert. denied, 292 Conn. 917, 973 A.2d 1277 (2009), is misplaced. In

Saunders, this court declined to review the merits of the defendant’s missing

witness argument claim, concluding that it was unpreserved. Id., 504. We

decline to revisit Saunders here.

Second, the defendant argues that J’s sister’s testimony was critical to

the state’s case, and therefore merited a missing witness argument, because

there was evidence adduced at trial that, during a police interview with the

defendant prior to trial, the defendant explicitly denied that any minors had

been in the market’s basement. The defendant argues in part: ‘‘It would

appear . . . that the only witness who could . . . partially refute the defendant’s exculpatory statement was [J’s] sister.’’ This argument fails for two

reasons. First, the defendant did not make this particular argument before

the trial court. Second, the defendant’s interview statement is a peripheral

matter. The defendant was not charged and convicted for merely bringing

J down to the basement, but for sexually assaulting her there. It therefore

does not appear to us to have been critical to corroborate David’s testimony

that she and J’s sister observed J and the defendant ascending the market’s

basement staircase.

4 Nothing from Courtney’s testimony suggests to us that contraction of a

sexually transmitted disease is a likely consequence of child sexual assault

by means of digital penetration. At most, the testimony conveyed that a

subset of children—whether it is 1 percent or 99 percent is unclear—

reporting abuse solely in the form of digital penetration whom Courtney

observed also suffered from a sexually transmitted disease.

5 The defendant argues that the state’s comment on the likelihood of

contracting sexually transmitted diseases by means of digital penetration

so dominated the state’s closing argument that the jury could have convicted
the defendant under § 53-21 (a) (2) only on the basis of the impairment of

J’s health. The defendant also claims that the court’s instructions to the

jury were insufficient to apprise them of the impairment of morals prong

of § 53-21 (a)(2). The defendant further contends thatthe court’s instructions

to the jury that they were ‘‘the sole judges of the facts’’ were insufficient

because they did not convey that ‘‘statements by the prosecutor as to his

recollection of the facts was not to be relied on.’’ (Emphasis added.) For

the reasons previously set forth in this opinion, we conclude that these

arguments lack merit.

6 The defendant asserts in his appellate brief that the trial court also told

J that it ‘‘understood why she was ‘nervous and distressed’ . . . .’’ (Emphasis added.) Although, as noted previously in this opinion, the trial court did

tell J, ‘‘You don’t have to be nervous,’’ our review of the trial transcripts

does not disclose, and the defendant has not identified through citation to

the transcripts, an instance in which the court used the word ‘‘distressed’’

in this context.