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*********************************************** 
STATE OF CONNECTICUT v. JOSE

DIEGO GONZALEZ

(AC 41512)

Lavine, Keller and Bishop, Js.

Syllabus

Convicted of the crimes of home invasion, sexual assault in the first degree

and of risk of injury to a child, the defendant appealed. The defendant’s

conviction resulted from an incident in which he entered the minor

victim’s apartment while her family was asleep and sexually assaulted

her. The defendant claimed, inter alia, that he was deprived of his

constitutional rights to a fair trial and to be heard by counsel at the

close of evidence because his counsel could not effectively rebut the

prosecutor’s position during closing argument to the jury. The defendant

asserted that his counsel was prevented from knowing how the prosecutor intended to marshal the evidence because she did not present her

substantive discussion of the evidence until the rebuttal portion of her

argument to the jury. Held:

1. The evidence was sufficient to support the defendant’s conviction of

home invasion, as the jury reasonably could have concluded that he

unlawfully entered the victim’s dwelling with the intent to commit the

crime of sexual assault by the use of force: the jury reasonably could

have inferred from the entirety of the evidence that the defendant had

been observing the victim’s dwelling, knew the layout of the apartment

and the family’s sleeping habits, and had been watching the victim

through her bedroom window, as the defendant acknowledged evidence

showing that he entered the dwelling through her brother’s bedroom

window, knew how to get to the victim’s bedroom, asked her age, and

told her that what he was going to do would not hurt before he put a

pillow over her face and sexually assaulted her; moreover, the defendant

was in the apartment for a short period of time, disturbed no one but

the victim, committed no other crime and immediately left after sexually

assaulting the victim, and it defied common sense and experience to

believe that the defendant thought that the victim willingly would have

been open to his sexual predation, such that he believed that he would

not need to use the threat of force to sexually assault her.

2. The defendant could not prevail on his claim that he was entitled to a new

trial, which was based on his assertion that prosecutorial improprieties

during closing argument deprived him of his constitutional rights to a

fair trial and to be heard by counsel at the close of evidence:

a. The format of the prosecutor’s closing argument was not improper

and did not deny the defendant his constitutional right to be heard by

counsel during closing argument; the court did not deny defense counsel

the opportunity to make a final argument to the jury, the arguments of

the prosecutor and defense counsel demonstrated that each was aware

of the evidence and the opposing party’s theory of the case, the defendant

did not identify any controlling authority regarding the use of time in

closing argument, and the record showed that defense counsel reminded

the jury that he had one opportunity to address the jury although the

prosecutor had two opportunities, pointed out the weaknesses in the

state’s case, argued that the DNA evidence was unreliable and that the

state should not be entitled to rely on it, was able to address the evidentiary issues that formed the basis of both portions of the prosecutor’s

final argument and directly attacked statements that the prosecutor

made during her summation.

b. The defendant’s claim that the prosecutor improperly raised new

issues and mischaracterized DNA and fingerprint evidence during her

rebuttal argument was unavailing: the record was inadequate to address

the defendant’s assertion that the prosecutor’s argument about DNA

evidence implicated errors in probabilistic reasoning, as the prosecutor’s

argument was predicated on the evidence, the defendant presented no

evidence to support his claim and failed to object to the prosecutor’s

DNA argument or to seek to correct the claimed misstatement, and

some degree of imprecision can be expected when a layperson discusses
or evaluates scientific or statistical evidence without the benefit of

expert testimony; moreover, the defendant could not have been prejudiced by the prosecutor’s argument about the fingerprint evidence, as

there was no fingerprint evidence that connected him to the crimes at

issue, and the prosecutor’s comment that fingerprints on a window in

the brother’s bedroom could have been there for 100 years was not

improper, as the point of her argument, which incorporated testimony

by a police officer that the victim’s house was estimated to be 100 years

old, was to emphasize that no one knew when or who put the fingerprints

on the window, and whether the remark was hyperbole or in response

to the argument of defense counsel, the arguments of both counsel had

a basis in the evidence.

c. The defendant could not prevail on his unpreserved claim that he

was entitled to a new trial because his counsel was not given an opportunity to counter the prosecutor’s statement in her rebuttal argument that

the defendant was the only person in Connecticut who could be a

contributor to a certain DNA mixture; defense counsel did not object

to the prosecutor’s statement, and he made clear to the jury in his final

argument all of the problems in the collection, preservation and testing

of the DNA evidence after the prosecutor, at the conclusion of the first

portion of her summation, told the jury that DNA was the key to the case.

3. The defendant could not prevail on his claim that he was entitled to a

new trial on the charge of home invasion because the prosecutor misled

the jury during closing argument about the elements of that crime;

although the prosecutor read the charge of home invasion as it was

stated in the information, indicated that the applicable statute (§ 53a100aa) was wordy and gave a shorthand description of that crime, she

more than once told the jurors that the court would instruct them on

the law and that the court’s instructions were what counted, and the

defendant having failed to claim that the court improperly charged the

jury on the crime of home invasion, it was presumed, in the absence of

evidence to the contrary, that the jury followed the court’s instructions.

Argued October 17, 2018—officially released March 12, 2019

Procedural History

Substitute information charging the defendant with

three counts of the crime of sexual assault in the first

degree, and with the crimes of home invasion and risk

of injury to a child, brought to the Superior Court in

the judicial district of New Haven and tried to the jury

before Blue, J.; verdict of guilty; thereafter, the court

denied the defendant’s motions for a judgment of acquittal and for a new trial, and rendered judgment in accordance with the verdict, from which the defendant

appealed. Affirmed.

Kevin W. Munn, assigned counsel, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state’s

attorney, with whom, on the brief, were Patrick J. Griffin, state’s attorney, and Stacey M. Miranda, senior

assistant state’s attorney, for the appellee (state).
Opinion

LAVINE, J. The defendant, Jose Diego Gonzalez,1

appeals from the judgment of conviction, rendered after

a jury trial, of one count of home invasion in violation

of General Statutes § 53a-100aa (a) (1), three counts of

sexual assault in the first degree in violation of General

Statutes § 53a-70 (a) (2), and one count of risk of injury

to a child in violation of General Statutes § 53-21 (a)

(2). On appeal, the defendant claims that there was

insufficient evidence that he intended to commit sexual

assault by force at the time he entered the victim’s

home.2 He also claims that the prosecutor’s closing

argument was improper and (1) deprived him of his

right to be heard by counsel during final argument, (2)

deprived him of the right to a fair trial, and (3) entitled

him to a new trial on the charge of home invasion.

We disagree and, therefore, affirm the judgment of the

trial court.

The jury reasonably could have found the following

facts on the basis of the evidence presented at trial.

The victim was ten years old on October 15, 2014, when

the defendant entered her first floor apartment in a

three-family house in Meriden at approximately 3:40

a.m. At that time, the victim, her mother, her mother’s

boyfriend, and the victim’s younger siblings and stepsiblings were asleep in their respective bedrooms.3 The

front door, a living room window, and the victim’s bedroom window faced the front of the house above the

porch that ran across the front of the house. The victim’s

brother had a bedroom in the rear of the apartment

with a window above a hatchway that the defendant

could have used to enter the apartment.

Earlier, at approximately 8 p.m., the victim had fallen

asleep in her bed in the room that she shared with her

stepsisters. The victim awoke shortly before 3:45 a.m.

when she felt someone touch her lower back. She saw

a black man with short dreadlocks leaning over her.

She did not know him, asked him who he was, and

what he was doing there. The defendant did not answer

her but asked her how old she was. She stated that she

was eight years old, hoping that he would leave her

alone. The defendant touched the victim’s buttocks

beneath her shorts and underwear. The victim pushed

herself against the wall to stop him. The defendant took

hold of the victim’s ankles and put one over each of his

shoulders and told her that ‘‘this wouldn’t hurt . . . .’’

The defendant pulled the victim’s shorts and underwear down to her knees and put a pillow over her face.

He pulled down his own pants, and rubbed and licked

the victim’s vagina before penetrating it with his penis.

The victim tried to get away from the defendant, but she

could not free herself from his grip. When the defendant

finished, he pulled up the victim’s underwear and shorts

and threatened to kill her if she told anyone what he
had done. He covered her with a blanket and told her

to go to sleep. The defendant walked out of the victim’s

bedroom and partially closed the door. The victim

watched him walk through the kitchen toward her

brother’s bedroom. The window in her brother’s room

was wide open. No one else in the house was aware of

the defendant’s presence. The victim’s sisters remained

asleep, and her brother heard nothing.

The victim’s mother had awakened at approximately

3:20 a.m., gone into the kitchen to get a bottle to feed

her infant, and returned to her bedroom. She saw no one

in the apartment at that time. Later, when the victim’s

mother went back to the kitchen, she saw the victim

standing at her bedroom door. The victim, shaking with

fright, ran into the kitchen and stated that there was a

‘‘black guy’’ in her room. When the victim and her

mother entered the victim’s bedroom, they saw the

defendant peering in the window from the front porch.

The victim’s mother had never seen the man before.

He had dark skin and a braid hanging out of his hoodie.

The defendant ran toward the back of the house. The

victim’s mother tried to pursue him, but she could not

keep up with him.

The victim told her mother what the defendant had

done to her. When the victim went to the bathroom,

she saw a clear, wet substance on her vagina and asked

her mother if she could wash. The victim’s mother,

who was medically trained, recognized the presence of

semen in her daughter’s underwear. She instructed the

victim not to wipe off anything. The police were

summoned.

The victim was taken by ambulance to Midstate Medical Center in Meriden, but because Midstate Medical

Center does not perform rape kits on children, she

was transported to Yale-New Haven Hospital where

Deborah Jane Gallagher, a nurse, administered a rape

kit. Gallagher used swabs to obtain DNA samples from

the victim’s vagina and fourchette, which was torn.

Gallagher also took a sample of the victim’s blood that

would be used to compare the victim’s DNA with the

DNA collected on the swabs. At the conclusion of the

examination, the victim went to the Department of Children and Families’ child sexual abuse clinic on Long

Wharf Drive in New Haven, where she was interviewed.

During the forensic interview, the victim described the

perpetrator as having a scratch on his left cheek, clean

shaven, and approximately forty years old. The defendant was twenty-three years old and had a full beard

and mustache when he was arrested two days later.

The police searched the victim’s apartment, focusing

their attention on her bed and two windows in her

brother’s room. They were able to lift fingerprints from

the windows, but some of the fingerprints were insufficiently defined to be evaluated. Other fingerprints did

not match the defendant’s or those of anyone in the
police database.4

The police identified the defendant, an African-American man with short dreadlocks, as a suspect and

arrested him in Waterbury on October 17, 2014. At the

time of the defendant’s arrest, the police obtained a

sample of the defendant’s DNA from the inside of his

cheek.

Daniel T. Renstrom, a DNA analyst at the state forensics laboratory, testified about his analysis of the DNA

samples that were sent to the laboratory. He developed

profiles of the victim’s and the defendant’s DNA, and

a profile of the DNA on the swabs of the victim’s vagina

and fourchette. Renstrom divided the DNA samples

from the victim’s vagina and fourchette into two components, an epithelial or nonsperm-rich fraction and a

sperm-rich fraction. He compared the two fractions to

DNA profiles of the victim and the defendant. The swab

of the victim’s fourchette contained a mixture of DNA,

that is, DNA from more than one contributor. Renstrom

determined that the victim was the source of the epithelial fraction from the DNA sample from her fourchette,

but he could not identify the other contributor due to

an insufficient amount of DNA. Pursuant to the laboratory’s policy, Renstrom eliminated the defendant as a

DNA contributor to the DNA mixture from the victim’s fourchette.

The DNA profile obtained from the swab of the victim’s vagina also produced a mixed DNA profile. The

swab contained both saliva and spermatozoa. The victim was a contributor to the epithelial fraction. The

sperm-rich fraction contained a mixture of DNA from

both the victim and the defendant.5 The number of people who have the DNA profile that was identified as

the defendant’s is approximately one in 52 million in

the African-American population, one in 37 million in

the Hispanic population, and one in 66 million in the

Caucasian population.

The defendant was charged in a long form information with home invasion in violation of § 53a-100aa (a)

(1), three counts of sexual assault in the first degree

in violation of § 53a-70 (a) (2), and one count of risk

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

December 15, 2016, a jury returned a verdict of guilty

on all counts charged. Thereafter, the defendant filed

a motion for a judgment of acquittal as to his conviction

of home invasion6 and a motion for a new trial on the

ground of prosecutorial impropriety.7 The court denied

both motions. On February 24, 2017, the court sentenced the defendant to an effective term of sixty-five

years imprisonment. The defendant appealed.

I

The defendant first claims that the state failed to

present sufficient evidence for the jury to find that he

intended to commit a sexual assault by force at the
time he entered the victim’s home, as was required to

convict him of home invasion. We disagree.

The state alleged in count one of the long form information that on or about October 15, 2014, at approximately 3:41 a.m., the defendant ‘‘unlawfully entered a

dwelling, while a person other than a participant in the

crime (to wit: [the victim]) was actually present in such

dwelling, with intent to commit a crime therein (to wit:

Sexual Assault in the First Degree [§] 53a-70 [a] [1]),8

and, in the course of committing the offense: he committed a felony against the person of another person other

than a participant in the crime who was actually present

in such dwelling, said conduct being in violation of [§]

53a-100aa (a) (1) of the Connecticut General Statutes.’’9

(Footnote added.)

‘‘In reviewing a sufficiency of the evidence claim, we

apply a two-part test. First, we construe the evidence

in the light most favorable to sustaining the verdict.

Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom

the jury reasonably could have concluded that the

cumulative force of the evidence established guilt

beyond a reasonable doubt. . . . [P]roof beyond a reasonable doubt does not mean proof beyond all possible

doubt . . . nor does proof beyond a reasonable doubt

require acceptance of every hypothesis of innocence

posed by the defendant that, had it been found credible

by the trier, would have resulted in an acquittal. . . .

On appeal, we do not ask whether there is a reasonable

view of the evidence that would support a reasonable

hypothesis of innocence. We ask, instead, whether there

is a reasonable view of the evidence that supports the

jury’s verdict of guilty.’’ (Internal quotation marks omitted.) State v. Brown, 299 Conn. 640, 646–47, 11 A.3d

663 (2011).

‘‘[T]he jury must find every element proven beyond

a reasonable doubt in order to find the defendant guilty

of the charged offense, [but] each of the basic and

inferred facts underlying those conclusions need not

be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic

fact or an inferred fact is true, the jury is permitted to

consider the fact proven and may consider it in combination with other proven facts in determining whether

the cumulative effect of all the evidence proves the

defendant guilty of all the elements of the crime charged

beyond a reasonable doubt. . . . Moreover, [w]here a

group of facts are relied upon for proof of an element

of the crime it is [its] cumulative impact that is to

be weighed in deciding whether the standard of proof

beyond a reasonable doubt has been met and each

individual fact need not be proved in accordance with

that standard.’’ (Citations omitted; emphasis added;

internal quotation marks omitted.) State v. Otto, 305

Conn. 51, 65–66, 43 A.3d 629 (2012).
‘‘Furthermore, [i]t is immaterial to the probative force

of the evidence that it consists, in whole or in part, of

circumstantial rather than direct evidence.’’ (Internal

quotation marks omitted.) Id., 66. In fact, ‘‘circumstantial evidence may be more certain, satisfying and persuasive than direct evidence.’’ (Internal quotation

marks omitted.) State v. Sienkiewicz, 162 Conn. App.

407, 410, 131 A.3d 1222, cert. denied, 320 Conn. 924,

134 A.3d 621 (2016). ‘‘If evidence, whether direct or

circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is

required for a conviction.’’ (Internal quotation marks

omitted.) State v. Jackson, 257 Conn. 198, 206, 777 A.2d

591 (2001).

‘‘Intent is a mental process, and absent an outright

declaration of intent, must be proved through inferences drawn from the actions of an individual, i.e., by

circumstantial evidence. . . . The intent of the actor

is a question for the trier of fact, and the conclusion

of the trier in this regard should stand unless it is an

unreasonable one.’’ (Citation omitted; internal quotation marks omitted.) State v. Barnes, 99 Conn. App.

203, 212, 913 A.2d 460, cert. denied, 281 Conn. 921, 918

A.2d 272 (2007).

On the basis of our review of the evidence, we conclude that there was sufficient evidence presented for

the jury reasonably to conclude that the defendant

unlawfully entered the victim’s dwelling with the intent

to commit the crime of sexual assault by use of force.

The evidence that permitted such an inference included,

among other things, the location of the victim’s bedroom window above the porch; the failure of the victim’s mother to see the defendant in the dwelling when

she went to the kitchen at 3:20 a.m.; the defendant’s

having gone to the victim’s bedroom and awakened her;

the defendant’s having asked the victim her age and

telling her that ‘‘this wouldn’t hurt’’; the defendant’s

having put a pillow over her face and having sexually

assaulted her; the defendant’s having threatened to kill

the victim if she told anyone what he had done; his

leaving the scene of the assault immediately by walking

through the kitchen and exiting the window in the brother’s bedroom; the lack of evidence of another crime

having been committed in the dwelling; and the victim’s

viewing the defendant peering into her bedroom window after he exited the dwelling.

The foregoing, along with the evidence in its entirety,

permitted the jury reasonably to conclude that the

defendant entered the apartment to sexually assault the

victim by force. The jury reasonably could have inferred

that the defendant had been observing the dwelling and

knew the layout of the apartment, knew the family’s

sleeping habits, and had been watching the victim

through her bedroom window. The defendant acknowledges that there was evidence that he entered the vic-
tim’s dwelling through her brother’s bedroom window.

The defendant knew how to get from the brother’s room

to the victim’s bedroom and went directly to the victim,

not one of the sisters. He asked her age and told her

that ‘‘this wouldn’t hurt . . . .’’ He was in the apartment

for a short period of time, disturbed no one but the

victim, committed no other crime, and immediately left

after sexually assaulting the victim. ‘‘Common experience tells us that an unlawful entry into a dwelling at

night is not without purpose. Nor are people accustomed to enter homes of strangers through a window

for innocent purposes.’’ State v. Zayas, 195 Conn. 611,

617, 490 A.2d 68 (1985).

The jury reasonably could have inferred that the manner in which the defendant entered the victim’s dwelling

and carried out his sexual assault of her was circumstantial evidence that, when he entered the dwelling,

he had the intent to commit a sexual assault. The singlemindedness with which the defendant entered the

dwelling, proceeded to the victim’s bedroom, and sexually assaulted her against her will is compelling evidence of this intent. See State v. Barnes, supra, 99 Conn.

App. 203. Barnes is a case in which the defendant was

charged with, among other things, burglary in the third

degree. Id., 204. On appeal, the defendant, Antonio G.

Barnes, claimed that the state had presented insufficient evidence to convict him of burglary because there

was insufficient evidence that ‘‘he intended to commit

a crime when he entered the [apartment].’’ Id., 212.

The evidence demonstrated that Barnes entered that

victim’s apartment without consent, took her cellular

telephone, and struck her. Id. He grabbed the victim’s

‘‘arms so that she could not move and, in response to

her statement to [a third party] to telephone the police,

stated that he would be able to hit [the victim] before

the police arrived.’’ Id., 212–13. This court construed

‘‘the evidence in the light most favorable to sustaining

the verdict’’ and ‘‘concluded that the evidence established that at the time of entering the dwelling, [Barnes]

intended to commit the crime of assault against [the

victim].’’ Id., 213.

In the present case, the defendant argues that the

state failed to produce sufficient evidence that he had

formed the intent to commit a sexual assault by force

when he entered the dwelling. This argument is predicated on the prosecutor’s summation that did not marshal evidence demonstrating the defendant’s intent

when he entered the dwelling. The defendant has provided no legal support for the singular proposition that

the prosecutor was required to marshal the evidence

in any particular manner, and we are unaware of any

Connecticut law requiring the state to marshal its evidence as the defendant suggests. Moreover, it is well

known, as the jury was instructed in the present case,

that the arguments of counsel are not evidence and

that it is the jury’s recollection of the evidence that is
controlling. See, e.g., Brown v. Bridgeport Police Dept.,

155 Conn. App. 61, 86, 107 A.3d 1013 (2015); State v.

Spyke, 68 Conn. App. 97, 113, 792 A.2d 93, cert. denied,

261 Conn. 909, 804 A.2d 214 (2002). The court also

instructed the jury that it may not resort to speculation

or conjecture and that its verdict had to be predicated

on the evidence.

The defendant has not persuaded us that the jury

decided the present case on anything other than the

evidence before it. As previously noted, on the basis

of its everyday experience and the evidence, the jury

reasonably may have inferred that the defendant

entered the dwelling with the intent to sexually assault

the victim by means of force. See, e.g., State v. Morocho,

93 Conn. App. 205, 215, 888 A.2d 164 (jury reasonably

may have inferred, on basis of everyday experience and

evidence presented, that by entering victim’s bedroom,

lying on top of her while attempting to kiss and touch

her all over her body, defendant took substantial step

in line of conduct that would culminate in sexual intercourse), cert. denied, 277 Conn. 915, 895 A.2d 792

(2006). It defies common sense and experience to

believe that the defendant thought that the victim willingly would have been open to his sexual predation,

such that he believed that he would not need to use

the threat of force to sexually assault her.

For the foregoing reasons, we conclude that there

was sufficient evidence to support the defendant’s conviction of home invasion and that the trial court properly denied the defendant’s motion for a judgment of

acquittal on the count of home invasion.

II

The defendant claims that the prosecutor’s closing

argument was improper and therefore (1) deprived him

of his constitutional right to be heard by counsel at the

close of evidence, (2) deprived him of his constitutional

right to a fair trial, and (3) entitled him to a new trial.10

More specifically, he claims that by presenting her substantive discussion of the evidence during the rebuttal

portion of her summation, the prosecutor prevented

his counsel from knowing how the state intended to

marshal the evidence and, therefore, counsel could not

effectively rebut the state’s position during his closing

argument. He also claims that, during rebuttal argument, the prosecutor mischaracterized the evidence

and introduced new claims that his counsel could not

correct, and thus deprived him of a fair trial. Finally,

the defendant claims that because the prosecutor

reserved the substantive portion of her argument for

rebuttal, he is entitled to a new trial. We disagree with

each of the defendant’s claims.

The defendant did not object to the prosecutor’s argument on the grounds he has raised on appeal.11 He seeks

appellate review pursuant to State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), as modified by In re

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

Although trial counsel’s failure to object to the prosecutor’s argument is not fatal to the defendant’s appellate

claims, it suggests that trial counsel did not believe that

the argument was improper. State v. Chase, 154 Conn.

App. 337, 343–44, 107 A.3d 460 (2014), cert. denied,

315 Conn. 925, 109 A.3d 922 (2015). We agree that the

defendant’s claims are reviewable because the record is

adequate for review and the claims are of constitutional

magnitude. See State v. Golding, supra, 239. The defendant, however, cannot prevail, as no constitutional violations exist, and the prosecutor’s final argument did

not deprive him of his constitutional rights. See id., 240.

We begin our analysis of the defendant’s claims by

setting forth the standard of review. ‘‘[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.’’ (Internal quotation marks omitted.) State v. Angel

T., 292 Conn. 262, 275, 973 A.2d 1207 (2009). ‘‘In other

words, an impropriety is an impropriety, regardless of

its ultimate effect on the fairness of the trial. Whether

that impropriety was harmful and thus caused or contributed to a due process violation involves a separate

and distinct inquiry. . . . [If] a defendant raises on

appeal a claim that improper remarks by the prosecutor

deprived the defendant of his constitutional right to a

fair trial, the burden is on the defendant to show . . .

that the remarks were improper . . . . The defendant

also has the burden to show that, considered in light

of the whole trial, the improprieties were so egregious

that they amounted to a denial of due process.’’ (Citations omitted; internal quotation marks omitted.) State

v. Brett B., 186 Conn. App. 563, 573, A.3d (2018),

cert. denied, 330 Conn. 961, A.3d (2019).

Our Supreme Court ‘‘has acknowledged: [P]rosecutorial [impropriety] of constitutional magnitude can

occur in the course of closing arguments. . . . In

determining whether such [impropriety] has occurred,

the reviewing court must give due deference to the fact

that [c]ounsel must be allowed a generous latitude in

argument, as the limits of legitimate argument and fair

comment cannot be determined precisely by rule and

line, and something must be allowed for the zeal of

counsel in the heat of argument. . . . Thus, as the

state’s advocate, a prosecutor may argue the state’s

case forcefully, [provided the argument is] fair and

based upon the facts in evidence and the reasonable

inferences to be drawn therefrom.’’ (Internal quotation

marks omitted.) State v. Otto, supra, 305 Conn. 76.

‘‘While the privilege of counsel in addressing the jury

should not be too closely narrowed or unduly ham-
pered, it must never be used as a license to state, or

to comment upon, or to suggest an inference from, facts

not in evidence, or to present matters which the jury

ha[s] no right to consider.’’ (Internal quotation marks

omitted.) State v. Ciullo, 314 Conn. 28, 38, 100 A.3d

779 (2014). ‘‘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.) State v. Singh, 259 Conn. 693, 718,

793 A.2d 226 (2002). ‘‘The prosecutor’s office caries a

special prestige in the eyes of the jury. . . . Consequently, [i]t is obligatory for prosecutors to find careful

ways of inviting jurors to consider drawing argued inferences and conclusions and yet to avoid conveying the

impression that they are giving their personal views to

the jurors.’’ (Citations omitted; internal quotation marks

omitted.) Id., 722.

The defendant’s claims arise out of the prosecutor’s

closing argument, which consisted of two parts. We

first outline the final arguments of both the prosecutor

and defense counsel to provide a context in which to

consider the defendant’s claims. The prosecutor began

the first portion of her summation by thanking the jurors

for their service and then stated that she intended ‘‘to

highlight’’ some of the evidence, but that the jury’s recollection of the facts was what counted. She also stated

that she was going to ‘‘highlight some points of law,’’

but that the judge was going to instruct the jury on the

law and ‘‘his word goes . . . .’’ She then summarized

the evidence concerning the events that occurred in

the victim’s home during the night of October 15, 2014.

Given those facts, she stated that the state charged the

defendant with home invasion, three counts of sexual

assault in the first degree, and risk of injury to a child.

The prosecutor then stated: ‘‘The judge will give you

the exact definition of these crimes at much more length

than I will, and you will actually get the copy of his

instructions to take with you in the jury room, but I’d

like to summarize them briefly for you.’’

The prosecutor read the first count of the long form

information charging the defendant with home invasion. She stated thereafter that the ‘‘statute is very

wordy, but basically, it means that the defendant had

to unlawfully enter the dwelling while a person was

inside with the intent to commit a sexual assault and

commit a felony while inside against another person

. . . .’’ The prosecutor then addressed each of the three

counts of sexual assault and risk of injury to a child

with which the defendant was charged. She reminded

the jury that the ‘‘judge, again, will have more detailed

instructions and you will have them in the jury room

with you . . . .’’
She concluded the first portion of her final argument

by stating that the jury was going to hear from the

defendant, particularly about fingerprints and mistakes

made by the laboratory and the police, and that the

victim and the victim’s mother were unable to identify

the perpetrator of the crimes from photographs or in

court. Finally, she stated that you ‘‘will hear all of these

things and more from the defense, but while you are

listening to their argument, there are three letters you

will not be able to forget. There are three letters you

will not be able to get out of your head. Those letters

are DNA.’’

Counsel for the defendant then presented his closing

argument. He made a few general remarks and stated

that it was the jury’s recollection of the facts, not his,

that mattered. He stated that he only had one chance

to address the jury. He acknowledged the seriousness

of the facts, and that the jury surely wanted justice for

the victim and ‘‘to believe that the Meriden police got

the right man.’’ He also reminded the jurors that they

had acknowledged during voir dire that ‘‘the verdict

would have to be not guilty’’ if the state had not proved

the case beyond a reasonable doubt.

He argued that the ‘‘majority of evidence in this case

contradicts a piece of evidence that implicates the

defendant.’’ He asked the jury to consider three things:

how much contradictory evidence there was, whether

the evidence against the defendant was corroborated,

and whether the evidence pointing the finger at the

defendant was solid or problematic. He noted that there

was no courtroom identification of the perpetrator and

that the victim’s description of the perpetrator did not

‘‘line up’’ with the defendant’s appearance in four ways:

the victim testified that the perpetrator had no facial

hair, had a scar on his cheek, was dark-skinned, and

was forty years old. He pointed out that when the defendant was arrested, he had a full beard and was twentythree years old. A photograph of the defendant taken

at the time of his arrest depicts no scar and indicates

that he is not dark-skinned.

With respect to fingerprints on the window in the

brother’s room, counsel for the defendant argued that

the victim saw the perpetrator go back to her brother’s

room, and her mother discovered the window wide

open. ‘‘It seems logical given the bulkhead or Bilco door

that that’s the window that the perpetrator went into.

It’s also logical that if you’re pushing the window up,

you might leave some prints there. . . . Could you

imagine if his prints were found on that window, what

we’d be looking at? . . . But those prints, he’s

excluded from leaving those prints; they’re not his.’’

‘‘The state wants you to believe that maybe the kids

were out there playing. They’re not kids’ prints. You

heard the experts testify about that. A hundred years?

The windows were there forever? I mean, come on,
let’s be serious.’’ (Emphasis added.) He stated that the

lack of evidence in terms of fingerprints was important.

Defense counsel also asked what corroborated the

DNA evidence in the case and answered his own question, ‘‘[n]othing.’’ He argued that there was no evidence

that the sperm slide or the victim’s panties or her sheets

were tested, as those items were not sent to the laboratory. He urged the jury to listen to the judge’s instructions that it was not the defendant’s burden to put on

evidence. Nonetheless, the defendant had called the

detectives in the case to testify. The state called only

the victim, her mother, the forensic interviewer, the

nurse and doctor, and the laboratory scientists to

testify.

Defense counsel further addressed the DNA evidence, arguing why it was problematic. In the profile

developed from one swab source, the defendant was

eliminated as a contributor, but he was a contributor

in a profile from another source. Defense counsel noted

the inconsistent number of swabs. ‘‘So, the one [source]

that has the most seminal fluid, the one that results in

the smear with the sperm, he’s eliminated from. That’s

problematic. This is not a reliable result. If a result

is unreliable, then statistics mean nothing.’’ Defense

counsel also talked about mistakes the police made in

recording and storing the fingerprints, and argued that

Gallagher’s testimony about the number of swabs in a

rape kit was not consistent with the number of swabs

sent to the laboratory. He concluded that the lack of

evidence did not permit the jury to accept the reliability

of the DNA evidence. He urged the jury not to decide

the case on ‘‘blind faith . . . .’’

On rebuttal, the prosecutor argued that the state was

not asking the jury to decide the case on blind faith,

but on science. She pointed out that the defendant did

not leave his fingerprints on the window, but that he

left ‘‘evidence from another part of his body,’’ which

‘‘resulted in a DNA profile that only one in 52 million

people in the African-American community have.’’

With respect to fingerprints, she stated that they ‘‘tell

you nothing.’’ There were fingerprints on the window,

but ‘‘[w]e don’t know where the prints came from or

how long they’ve been there or if they’ve been there

for a hundred years. The prints tell us nothing and show

you nothing and prove nothing.’’

The prosecutor restated the victim’s testimony

regarding the incident on October 15, 2014. She

reviewed the victim’s description of the perpetrator and

displayed photographs of the defendant that were in

evidence. She also reviewed the testimony of the victim’s mother. She recounted the testimony of Gallagher

and Gunjan Tiyyagura, an emergency department physician who described shining a BlueMax light on the

victim’s vagina that revealed the presence of semen.
She recounted in summary the testimony regarding the

forensic interview of the victim, and gave a more

detailed recitation of the testimony of the laboratory

scientists regarding the swabs and the DNA profiles

produced from them. She mentioned that Renstrom

developed known DNA profiles of both the victim and

the defendant, and compared them with the profile

obtained from the swab of the victim’s vagina. The DNA

of both the victim and the defendant were present in

that profile. She stated that Renstrom ‘‘attached a statistic to the [number] of times you would see that profile

in a number of people. He told you that you would see

the DNA profile of the defendant once in 52 million

people in the African-American community. Think

about that, ladies and gentlemen. You hear evidence

that the whole state of Connecticut is 3.5 million people.

If we filled the entire state of Connecticut with 3.5

million African-Americans, 52 million African-Americans would be the population of Connecticut times

fourteen. So, if we placed 3.5 million African-Americans

in Connecticut and stacked thirteen more states the

size of Connecticut on top of that full of African-Americans, we would still only see that profile one time. That,

ladies and gentlemen, is proof beyond a reasonable

doubt.’’

We now address the defendant’s claims of prosecutorial impropriety.

A

The defendant’s first claim of prosecutorial misconduct is that the prosecutor violated his constitutional

right to be heard by counsel during oral argument by

reserving the substantive discussion of the evidence for

her rebuttal. He argues that, without knowing how the

state intended to marshal the evidence, his counsel

could not effectively rebut the state’s argument and,

therefore, he lost his ‘‘last clear chance to persuade the

[jury] that there may be reasonable doubt of [his] guilt,’’

quoting Herring v. New York, 422 U.S. 853, 862, 95 S.

Ct. 2550, 45 L. Ed. 2d 593 (1975). He also claims that

the prosecutor raised new arguments during her rebuttal.12 We disagree.

‘‘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.’’ (Internal quotation marks omitted.) State v. Mungroo, 104

Conn. App. 668, 675–76, 935 A.2d 229 (2007), cert.

denied, 285 Conn. 908, 942 A.2d 415 (2008).

‘‘In general, the scope of final argument lies within
the sound discretion of the court . . . subject to appropriate constitutional limitations.’’ (Citation omitted;

internal quotation marks omitted.) State v. Arline, 223

Conn. 52, 59, 612 A.2d 755 (1992). The present case,

however, is not one in which the defendant claims that

the court improperly limited his right to argue to the

jury. He instead takes issue with the prosecutor’s strategy, claiming that because the prosecutor made her

substantive argument during rebuttal, defense counsel

could not counter the substance of the prosecutor’s

argument. Our review of the record discloses that the

evidence was known to the defendant and his counsel,

and that defense counsel vigorously argued the weaknesses in the state’s case to the jury.

The defendant relies heavily on the legal underpinnings of Herring v. New York, supra, 422 U.S. 853, to

argue that the form of the prosecutor’s argument limited

his right to counsel under the sixth amendment to the

federal constitution. The facts of Herring are inapposite. At the time of Herring, a New York statute conferred upon judges in nonjury criminal trials the power

to deny counsel an opportunity to argue the evidence

before the judge rendered a judgment. Id., 853–54. The

case called upon the Supreme Court to assess the constitutional validity of the New York law. Id., 854. During

trial, at the conclusion of evidence, defense counsel

had asked ‘‘to ‘be heard somewhat on the facts.’ The

trial judge replied: ‘Under the new statute, summation

is discretionary, and I choose not to hear summations.’ ’’

Id., 856. The United States Supreme Court reversed the

defendant’s conviction, stating in part, that ‘‘closing

argument for the defense is a basic element of the

adversary factfinding process in a criminal trial. . . .

[C]ounsel for the defense has a right to make a closing

summation to the jury, no matter how strong the case

for the prosecution may appear to the presiding judge.’’

Id., 858. ‘‘[T]he overwhelming weight of authority, in

both federal and state courts, holds that a total denial of

the opportunity for final argument in a nonjury criminal

trial is a denial of the basic right of the accused to make

his defense.’’ Id., 859.

Herring does not resemble the present case—or anything close to it.13 First, the present case was tried before

a jury. Second, the court did not deny defense counsel

the opportunity to make a final argument to the jury.

Third, defense counsel argued to the jury. Our review

of the argument made by defense counsel discloses that

he reminded the jury that it was its recollection of the

facts that mattered and that he had only one opportunity

to address the jury, although the prosecutor had two

such opportunities. He ably pointed out the weaknesses

in the state’s case: the victim and her mother were

unable to identify the perpetrator in court or from photographs, the victim’s description of the perpetrator

was not consistent with his appearance, there was no

fingerprint evidence from the window where the perpe-
trator supposedly entered the dwelling, the DNA evidence was uncorroborated, and the nurse used two

swabs to collect DNA from the victim but there were

three swabs in the rape kit in the laboratory, among

other things. Significantly, defense counsel argued that

the DNA evidence was unreliable and that the state

should not be entitled to rely on it.

Contrary to the defendant’s argument, defense counsel was able to address the evidentiary issues in the

case that formed the basis of both portions of the prosecutor’s final argument. Defense counsel’s argument

with regard to the evidence directly attacked statements

the prosecutor made during her summation, to wit:

‘‘[Y]ou’re going to hear a lot of things about fingerprints

and mistakes by the lab or police with those fingerprints. You’re also going to hear that there’s no identification of the defendant by photograph. . . . [W]hile

you are listening to their argument, there are three

letters you will not be able to forget. There are three

letters you will not be able to get out of your head.

Those letters are DNA.’’ The arguments of both the

prosecutor and defense counsel demonstrate that each

of them was well aware of the evidence in the case and

the opposing party’s theory of the case.

This court previously has stated that ‘‘[t]here is nothing to suggest that a closing argument must be made

in a particular order or that the state’s initial argument

should contain the majority of its argument. Closing

arguments must be fair and based on evidence. . . .

We . . . must permit the state wide latitude in its decision to make the substantive portion of its closing argument during final closing argument . . . .’’ State v.

Rupar, 86 Conn. App. 641, 656–57, 862 A.2d 352 (2004),

cert. denied, 273 Conn. 919, 871 A.2d 1030 (2005); accord

State v. Schiavo, 93 Conn. App. 290, 303 n.10, 888 A.2d

1115, cert. denied, 277 Conn. 923, 895 A.2d 797 (2006).

As in Rupar, the defendant in the present case has not

identified any controlling authority—be it a statute, a

rule of practice, or case law—regarding the use of time

in closing argument.14 We, therefore, conclude that the

format of the prosecutor’s closing argument was not

improper and did not deny the defendant his constitutional right to be heard by counsel during closing

argument.

B

The defendant’s second claim is that the prosecutor

was guilty of impropriety when, during rebuttal argument, she raised new issues and mischaracterized the

evidence that, according to the defendant, infringed on

his right to closing argument and deprived him of a fair

trial.15 On the basis of our review of the record, including

the prosecutor’s rebuttal argument, we conclude that

there was no impropriety.16 We now address each of

the defendant’s arguments.
1

The defendant claims that the prosecutor mischaracterized Renstrom’s testimony regarding the expected

frequency of individuals who could be a contributor to

the mixture in the DNA sample identified as 1 C-B.

We disagree.

During her rebuttal argument, the prosecutor stated

in relevant part: ‘‘[I]f we placed 3.5 million AfricanAmericans in Connecticut and stacked thirteen more

states the size of Connecticut on top of that full of

African-Americans, we would still only see that profile

one time. That, ladies and gentlemen, is proof beyond a

reasonable doubt.’’ The defendant notes that Renstrom

testified that the population of Connecticut is approximately 3.5 million and that ‘‘the expected frequency of

individuals who could be a contributor to the mixture in

1 C-B is approximately one in 52 million in the AfricanAmerican population, approximately one in 66 million

in the Caucasian population, and approximately one in

37 million in the Hispanic population.’’

The defendant claims that the prosecutor’s argument

implicates two errors in probabilistic reasoning. By telling the jury that only one person in Connecticut would

be included as a contributor, the prosecutor urged the

jury to commit the ‘‘ ‘uniqueness fallacy,’ ’’17 stating that

‘‘it is a fallacy to infer uniqueness from profile frequencies simply because they are smaller than the number

of available objects.’’18 The second error, the defendant

argues, is ‘‘the probability of another match error, which

conflates the chance that a single, randomly selected

person could be included as a contributor with the

chance that at least one other member of the population

could be included.’’19 The defendant contends that the

prosecutor’s incorrect reasoning was harmful because

even a relatively low percentage chance that someone

else could be included as a contributor may have been

enough to convince the jury that there was a reasonable

doubt as to the defendant’s guilt.

We need not determine whether the defendant’s statistical argument is correct. He presented no evidence

to support the claim he now raises on appeal, and the

record is inadequate to address it. Our review of the

record discloses that the prosecutor’s argument was

predicated on the evidence. On redirect examination,

the prosecutor questioned Renstrom about the frequency of the defendant’s DNA profile occurring in the

African-American population in Connecticut:

‘‘[The Prosecutor]: How many people are in the state

of Connecticut?

‘‘[The Witness]: I’m not sure of the exact population. I

believe it’s in the three to three and a half million people.

‘‘[The Prosecutor]: Three, three and a half million.

This statistic was what . . . you found the amount—
the number of times you would expect to find this

profile of—that was generated from the defendant’s

known? How many times would you expect to see that

profile within—what was the statistic you put out? . . .

‘‘[The Witness]: It was in the tens of millions. . . .

‘‘[The Prosecutor]: So, demonstrate the item 1C-B is

a mixture, and the defendant is included in one statistic

that you put to this, that you would find the defendant’s

profile in that number?

‘‘[The Witness]: So, what the statistic is referring to

is, if I were to take general population, type those people, and then compare it to the knowns, 1C-B—or the

unknown 1C-B sample, and the expected frequency of

individuals who could be a contributor to that sample,

1C-B, is one in 52 million in the African-American population, one in 66 million in the Caucasian population,

and one in 37 million in the Hispanic population.’’

DNA evidence is inherently complex, and the statistical conclusions to be drawn from it are equally complex.

But neither the state nor the defendant presented expert

testimony to help the jury understand the significance

of Renstrom’s statistics. ‘‘The purpose of expert testimony is to aid the trier of fact in arriving at its own

conclusion.’’ Breen v. Breen, 18 Conn. App. 166, 174,

557 A.2d 140, cert. denied, 212 Conn. 801, 560 A.2d 984

(1989). ‘‘The purpose of expert testimony is to draw

inferences from the facts which the fact finder could

not draw at all or as reliably.’’ Marandino v. Prometheus

Pharmacy, 105 Conn. App. 669, 692, 939 A.2d 591 (2008),

rev’d in part on other grounds, 294 Conn. 564, 986 A.2d

1023 (2010).

As previously noted, the defendant failed to object

to the prosecutor’s DNA argument. As our Supreme

Court has stated, this is not fatal to a prosecutorial

impropriety claim. See State v. Stevenson, 269 Conn.

563, 572–73, 849 A.2d 626 (2004). ‘‘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. . . . This is particularly true if, as in the

present case, a defendant claims prosecutorial impropriety stemming from a prosecutor’s discussion of DNA

evidence. Such discussions require precise and nuanced

distinctions in nomenclature that easily may be misconveyed or misunderstood, especially in light of the zealous advocacy that is part and parcel of a closing

argument. If a prosecutor’s arguments do not portray

accurately the DNA evidence as it was presented to the

jury or stray too far from reasonable inferences that
may be drawn from such evidence, a contemporaneous

objection by defense counsel would permit any misstatements, whether inadvertent or intentional, to be

remedied immediately.’’ (Citation omitted; internal quotation marks omitted.) State v. Brett B., supra, 186 Conn.

App. 572.

The state contends that the prosecutor’s argument

was predicated on a reasonable inference to be drawn

from the evidence and unmistakably was in reference

to Renstrom’s testimony. We agree. ‘‘We long have held

that a prosecutor may not comment on evidence that

is not a part of the record and may not comment unfairly

on the evidence in the record. . . . It is not, however,

improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences

that the jurors might draw therefrom . . . . We previously have held that, if the evidence presented at trial

is that the defendant is included as a contributor to a

DNA profile, then it is not necessarily improper for a

prosecutor to argue to a jury during closing argument

that the DNA found was the defendant’s as long as that

is a reasonable inference to be drawn in light of the

evidence as a whole.’’ (Citations omitted; emphasis

omitted; internal quotation marks omitted.) Id., 583.

To the extent that the prosecutor may have used

an imprecise example or exaggerated,20 the defendant

failed to object or to correct the claimed misstatement,

which suggests ‘‘that he did not believe at the time

that the remarks warranted such intervention. When

considered within the context of the state’s entire argument and allowing some leeway for zealous advocacy,

as we must, we cannot conclude that the prosecutor

made any statements that reasonably can be viewed as

improper under the circumstances or that the jury likely

was misled . . . .’’ Id., 585–86. As a practical matter,

some degree of imprecision can be expected when a

layperson discusses, or evaluates, scientific or statistical evidence without the benefit of expert testimony.

Opposing counsel, however, must be alert and raise an

objection at the time when a purported error may be

corrected. See id., 572.

We conclude, therefore, that the prosecutor’s rebuttal

argument was not improper and that the defendant

failed to demonstrate that he was denied a fair trial on

the basis of the prosecutor’s argument with respect to

the DNA evidence.

2

The defendant also claims that the prosecutor mischaracterized the fingerprint evidence. We do not agree.

During the trial, the state presented testimony from

John Cerejo, a detective with the Meriden Police

Department, and Steve Burstein, a detective sergeant

with the department, regarding the efforts the police

made to get fingerprints from the window in the bed-
room of the victim’s brother. Many of the fingerprints

were not sufficiently clear to be used for identification

purposes, and none of them matched the defendant’s

fingerprints. According to Cerejo, the length of time a

fingerprint stays on a surface depends on, among other

things, whether it is exposed to sun and rain. He testified

inconsistently as to how long the fingerprints on the

window could have been there. According to Burstein,

the window was exposed to the elements, and he did not

know how long the fingerprints were on the window.

He also testified that he did not know when the house

had been built, but estimated, without objection, that

it ‘‘probably [was] a hundred years ago or so . . . .’’

During her rebuttal, the prosecutor downplayed the

importance of fingerprints on the window, arguing, in

part, ‘‘[w]e don’t know where the prints came from or

how long they’ve been there or if they’ve been there

for a hundred years.’’ The defendant claims that the

argument was improper because there was no evidence

that the fingerprints could have been on the window

for anywhere close to one hundred years. We do not

find the prosecutor’s argument to have been improper.

The obvious point of the prosecutor’s argument was

that there was no evidence as to whose fingerprints

were on the window or when they happened to be

put there. With a hyperbolic flourish, the prosecutor

incorporated the testimony that the house was estimated to be one hundred years old to emphasize that no

one knew when or who put fingerprints on the window.

Surely, the jury understood the prosecutor’s remark as

an overstatement. Moreover, counsel for the defendant

stated in his closing argument: ‘‘They’re not kids’ prints.

You heard the experts testify about that. A hundred

years? The windows were there forever? I mean, come

on, let’s be serious.’’

Whether the prosecutor’s one hundred years remark

was hyperbole or made in response to the argument of

defense counsel, the arguments of both counsel had a

basis in the evidence. Most importantly, there was no

fingerprint evidence that connected the defendant to

the crimes and, therefore, he could not have been prejudiced by the argument. The defendant’s claim of prosecutorial impropriety during oral argument therefore

fails.

C

The defendant also claims that he is entitled to a

new trial because the prosecutor’s allegedly improper

rebuttal argument deprived him of the right to closing

argument. We do not agree.

The defendant’s claim is made through the lens of

hindsight and is not supported by the record. The defendant expounds on his claim that he did not have a

chance to rebut the state’s view of the evidence, and

that his theory of defense was to challenge the persua-
siveness and reliability of the DNA evidence. He

asserted that he was denied the right to final argument

especially with respect to the prosecutor’s rebuttal

argument that he was the only person in Connecticut

who could be a contributor to the DNA mixture and

that defense counsel was not given an opportunity to

correct the argument. The defendant claims that this

was extraordinarily harmful because juries, lawyers,

and judges have a difficult time interpreting probabilistic information. This claim was not raised at trial and,

therefore, is not preserved. Moreover, the defendant

claims that he did not have the chance to counter the

prosecutor’s argument in the context of his own theory

that there were serious questions about the collection,

preservation, and testing of the physical evidence that

called Renstrom’s testimony into question.

The defendant’s contention that he is entitled to a

new trial on the basis of the prosecutor’s rebuttal argument is flawed for at least two reasons. If, as he argues

on appeal, the prosecutor’s argument that he was the

only person in Connecticut who could have contributed

to the DNA mixture is wrong, defense counsel could

have objected to the argument at trial, but did not.

Counsel, therefore, must not have thought that it misled

the jury. Given the complexity of DNA evidence, an

objection must be raised at the time evidence is presented when it can be corrected. State v. Brett B., supra,

186 Conn. App. 572.

As to his second contention that defense counsel

could not counter the prosecutor’s DNA argument, we

note that at the conclusion of the first portion of her

summation, the prosecutor, in so many words, told the

jury that DNA was the key to the case. During his final

argument, defense counsel made clear to the jury all

of the problems in the collection, preservation, and

testing of the DNA evidence. The defendant, therefore,

was not deprived of his right to final argument and to

present his view of the DNA evidence. In fact, defense

counsel anticipated and attempted to refute the prosecutor’s rebuttal.

For the foregoing reasons, the defendant’s claim of

prosecutorial impropriety during final argument fails.

III

The defendant’s final claim is that he is entitled to a

new trial on the charge of home invasion because the

second portion of the prosecutor’s final argument misled the jury on the elements of the crime of home

invasion, and that the misstatement was not harmless

beyond a reasonable doubt. We disagree.

The defendant’s claim is predicated on his representation, in his appellate brief, of a portion of the prosecutor’s closing argument, to wit: ‘‘During closing

argument, after quoting the substitute information, the

state’s attorney told the jury that ‘basically, [the infor-
mation] means that the defendant had to unlawfully

enter the dwelling while a person was inside with the

intent to commit a sexual assault . . . .’ ’’ (Emphasis

in original.) He argues that the language misrepresented

the law to the jury because it invited the jury to find

him guilty even if it did not find beyond a reasonable

doubt that he intended to commit a sexual assault by

force at the time of entry. The defendant correctly states

that prosecutors are not permitted to misstate the law

because it invites a conviction unwarranted by the law

and facts.21 See State v. Otto, supra, 305 Conn. 77. ‘‘A

review of the statements made by the prosecutor, in

the context of the entire closing argument, is necessary

to address the defendant’s challenges.’’ Id.

Our review of the prosecutor’s entire summation discloses the context of the prosecutor’s argument to

which the defendant takes exception. After thanking

the jury for its service, the prosecutor stated that she

intended to highlight some of the evidence, but that if

the jury had a different recollection of the evidence, its

recollection was what counted. She also stated that she

would highlight some points of law, but that the trial

judge would give the jury instructions on the law and

that ‘‘his word goes . . . .’’ (Emphasis added.)

The prosecutor then summarized the victim’s testimony and stated that on the basis of ‘‘the horrific facts’’

the victim described, the state charged the defendant

with five crimes. The prosecutor stated: ‘‘The judge will

give you the exact definition of these crimes at much

more length than I will, and you will actually get the

copy of his instructions to take with you in the jury

room, but I’d like to summarize them briefly for you.’’

The prosecutor then read the first count of the long

form information to the jury. Immediately thereafter,

the prosecutor stated: ‘‘That statute is very wordy, but

basically, it means that the defendant had to unlawfully

enter the dwelling while a person was inside with the

intent to commit a sexual assault and commit a felony

while inside against another person; and again, this

will be described further, but that’s the first count of

the information.’’

When the court instructed the jury, it stated in part:

‘‘You as the jury and I as the judge have separate functions. It’s your function to find what the facts are in

this case. With respect to the facts, you and you alone

are charged with that responsibility. My function is to

charge you on the law to be applied to the facts that

you find in order to decide this case. With respect to

the law, what I say to you is binding on you, and you

must follow all of my instructions.’’

With respect to the first count of the information,

which alleged home invasion, the court instructed the

jury that it would have the information in the jury room

along with a copy of its charge. The court read the

charge of home invasion to the jury and § 53a-100aa
(a) (1). It then stated: ‘‘So, for you to find the defendant

guilty of this charge, the state must prove each of the

following elements beyond a reasonable doubt: (1) that

the defendant knowingly and unlawfully entered a

dwelling, (2) that the defendant intended to commit the

crime of sexual assault in the first degree in violation

of § 53a-70 (a) (1) in that dwelling, (3) that when the

defendant entered the dwelling, a person other than a

participant in the crime, namely [the victim], was actually present in the dwelling, and (4) that in the course

of committing the home invasion, the defendant committed a felony against the person of another person

other than a participant in the crime who was actually

present in the dwelling.’’

The court elaborated on all of the elements of the

crime of home invasion: ‘‘The second element that the

state must prove beyond a reasonable doubt is that

the defendant intended to commit the crime of sexual

assault in the first degree in violation of § 53a-70 (a)

(1) in the dwelling. Our statutes provide that a person

acts intentionally with respect to a result when his

conscious objective is to cause such result. What a

person’s intent has been is very largely a matter of

inference. No witness can be expected to come here

and testify that he looked into another person’s mind

and saw therein a certain intention. A jury may determine what a person’s intention was at any given time

by determining what that person’s conduct was and

what the circumstances were surrounding that conduct,

and from those things infer what his intention was. An

intent may be inferred from circumstantial evidence,

provided the inference is a reasonable one and warranted by facts that you find proven. To draw such an

inference is not only the privilege but also the proper

function of a jury, provided of course, that the inference

drawn complies with the standards for inference set

forth in my instruction on circumstantial evidence.’’

The trial court also instructed the jury on the elements of sexual assault in the first degree by the use

of force, to wit: ‘‘The necessary intent to commit a

crime must be an intent to commit either a felony or

a misdemeanor in addition to the unlawful entering of

the dwelling. In this case, the state claims that the

defendant committed the crime of sexual assault in the

first degree in violation of § 53a-70 (a) (1) . . . . That

section provides . . . [a] person is guilty of sexual

assault in the first degree when such person compels

another person to engage in sexual intercourse by the

use of force against such other person. For a person

to intend to commit the crime of sexual assault in the

first degree in violation of § 53a-70 (a) (1) . . . he must

intend to (1) compel another person to engage in sexual

intercourse, and (2) to accomplish the sexual intercourse by the use of force against the other person.

With respect to this element, the state must first prove

beyond a reasonable doubt that when the defendant
entered the dwelling in question, he intended to compel

another person to engage in sexual intercourse. Sexual

intercourse means vaginal intercourse or cunnilingus

between persons regardless of sex. . . . The state must

additionally prove beyond a reasonable doubt that when

the defendant entered the dwelling, he intended to

accomplish the sexual intercourse by the use of force

against . . . the other person.’’

The defendant does not claim that the court’s instructions were improper. ‘‘Barring contrary evidence . . .

we must presume that juries follow the instructions

given them by the trial judge.’’ (Internal quotation marks

omitted.) State v. Morton, 59 Conn. App. 529, 537, 757

A.2d 667 (2000). The defendant has not provided any

evidence that the jury did not follow the instructions

of the court.

The record discloses that the prosecutor read the

charge of home invasion as stated in the information,

and then indicated that the statute was wordy and gave

a shorthand description of the crime, i.e., that the defendant unlawfully entered the dwelling with the intent to

commit a sexual assault and commit a felony against

another person. The prosecutor did not so much misstate the law as give an incomplete description of the

charge against the defendant. The prosecutor, however,

more than once told the jurors that the court would

instruct them on the law and that the court’s instructions were what counted. The defendant has not

claimed that the court improperly charged the jury. We

presume, in the absence of evidence to the contrary,

that the jury followed the court’s instructions. State v.

Webster, 308 Conn. 43, 58–59 n.11, 60 A.3d 259 (2013).

The defendant’s claim, therefore, fails.

On the basis of our review of the record and for the

reasons previously stated, we conclude that there was

sufficient evidence by which the jury reasonably could

have found the defendant guilty beyond a reasonable

doubt of the crimes with which he was charged. Moreover, we conclude that the prosecutor committed no

impropriety during her final argument and, therefore,

the defendant was not denied his constitutional right

to final argument, a fair trial, or due process.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant was formerly known as Desmond James.

2

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

victims of sexual abuse 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.

3 The victim’s mother has five daughters, a son, and five stepchildren.

4 During his cross-examination of the investigating police officers, the

defendant elicited evidence that demonstrated errors in the fingerprint investigation and record keeping. See part II B 2 of this opinion.

5 Renstrom explained that in dividing the DNA, the epithelial and spermrich fractions cannot be separated completely.

6

In his motion for a judgment of acquittal, the defendant stated that to

convict him of home invasion the state had to establish beyond a reasonable
doubt that when he entered the victim’s home, he did so with the intent to

compel another person to engage in sexual intercourse by the use of force

or by the threat of use of force, which reasonably caused such person to

fear physical injury. The defendant contended that there was no evidence

to suggest or from which to infer that the perpetrator knew who lived in

the home before he entered. Moreover, there is no evidence to suggest how

long the perpetrator was in the victim’s home or what he did in the home

prior to awakening the victim. The defendant argued that the only evidence

from which the jury possibly could infer the perpetrator’s intent when he

entered the home was the fact that he ultimately committed a sexual assault.

7

In his motion for a new trial, the defendant asserted that the prosecutor’s

argument was improper because it was unsupported by evidence and

amounted to unsworn testimony. The defendant claimed that the prosecutor

mischaracterized the testimony of Gunjan Tiyyagura, an emergency department physician, regarding the cause of a tear to the victim’s fourchette, and

made an assertion about the DNA evidence for which there was no evidence.

He also claimed that the court erred in failing to give the jury instruction

on proof beyond a reasonable doubt that he had requested.

8 General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is

guilty of sexual assault in the first degree when such person (1) compels

another person to engage in sexual intercourse by the use of force against

such other person . . . .’’

The state also charged the defendant in three separate counts with sexual

assault in the first degree in violation of § 53a-70 (a) (2), which provides in

relevant part: ‘‘A person is guilty of sexual assault in the first degree when

such person . . . (2) engages 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 . . . .’’

9 General Statutes § 53a-100aa (a) provides in relevant part: ‘‘A person is

guilty of home invasion when such person enters . . . a dwelling, while a

person other than a participant in the crime is actually present in such

dwelling, with intent to commit a crime therein, and, in the course of committing the offense: (1) Acting either alone or with one or more persons, such

person or another participant in the crime commits or attempts to commit

a felony against the person of another person other than a participant in

the crime who is actually present in such dwelling . . . .’’

10 The defendant does not claim that the prosecutor’s final argument raised

any nonconstitutional issues such as a violation of the rules of practice; see

Practice Book § 42-37; or a statutory right that he may have regarding final

argument. See General Statutes § 54-88.

11 Following the conclusion of the prosecutor’s rebuttal argument, defense

counsel objected to three statements the prosecutor made regarding the

facts. The court overruled the objections, stating that the issues were for

the jury to decide. On appeal, the defendant has not claimed that the court’s

rulings constituted an abuse of discretion.

12 The defendant claims that he was not able to respond to the prosecutor’s

rebuttal argument regarding Renstrom’s testimony about the probability of

inclusion, the defendant’s exclusion from the sperm-rich portion of the

profile sample identified as 1 C-3, the fingerprint evidence, the victim’s

description of the perpetrator, and saliva found on the three swabs. We

disagree that defense counsel was unable to respond to the issues cited. At

the close of the first portion of her argument, the prosecutor stated that

‘‘[t]here are three letters you will not be able to get out of your head. Those

letters are DNA.’’ This argument put the defendant on notice of the state’s

theory of the case. During his closing argument, defense counsel pointed

out errors concerning the DNA evidence and its testing, and how the police

and the laboratory handled the fingerprints taken from the window in the

bedroom of the victim’s brother. Defense counsel also emphasized the inconsistencies between the victim’s description of the defendant and the defendant’s appearance. See part II of this opinion.

13 The defendant also relies on State v. Arline, supra, 223 Conn. 52, and

State v. Hoyt, 47 Conn. 518 (1880), for the proposition that an accused is

entitled to argue to the trier of fact at the conclusion of the evidence. That

constitutional right is not in dispute in the present case. The issue in the

cited cases concerned the trial court’s imposition of restrictions on counsel’s

argument, which is not the issue in the present instance.

In Arline, our Supreme Court reversed the judgment of conviction because

the trial court restricted defense counsel’s right to argue certain facts in

evidence regarding the complainant’s credibility. State v. Arline, supra, 223

Conn. 55-65. In Hoyt, the issue before the court was whether the trial court
had the discretion to limit the amount of time for argument. State v. Hoyt,

supra, 47 Conn. 534–36. Neither case concerns the manner in which the

state apportions its final argument.

14 In his appellate brief, the defendant has cited cases from federal and

state courts reversing criminal convictions in which the prosecutor gave a

perfunctory opening summation and presented the bulk of the argument on

rebuttal. As an intermediate court of appeal, we are bound to follow the

law established by our legislature and our Supreme Court. ‘‘[W]e are unable

to overrule, reevaluate, or reexamine controlling precedent . . . .’’ State v.

LaFleur, 156 Conn. App. 289, 302, 113 A.3d 472, cert. denied, 317 Conn. 906,

114 A.3d 1221 (2015). We, therefore, follow Connecticut precedent.

15 The defendant objected at trial to what he claims was the prosecutor’s

mischaracterization of the fingerprint testimony and thus preserved the

claim for appellate review. He did not object to what he claims are new

issues raised by the prosecutor in rebuttal. He, therefore, seeks appellate

review pursuant to State v. Golding, supra, 213 Conn. 239–40. Although the

claim is reviewable, a constitutional violation did not exist, and the defendant

was not deprived of a fair trial. See parts II and II B 2 of this opinion.

16 Because we conclude that there was no prosecutorial impropriety, we

need not address the factors set forth in State v. Williams, 204 Conn. 523,

540, 529 A.2d 653 (1987), to determine whether the defendant was denied

due process.

17 According to the defendant, the reasoning of the uniqueness fallacy is

that ‘‘(1) there is a 1 in 52 million chance that a person could be included

as a contributor to the mixture; (2) the defendant’s profile was included as

a contributor; (3) the population of Connecticut is about 3.5 million; therefore

(4) the defendant is the only person whose profile would be included as a

contributor to the mixture.’’

18 In his appellate brief, the defendant cited M. Saks & J. Koehler, ‘‘The

Individualization Fallacy in Forensic Science Evidence,’’ 61 Vand. L. Rev.

199, 204 (2008).

19 In his appellate brief, the defendant cited J. Koehler, ‘‘Error and Exaggeration in the Presentation of DNA Evidence,’’ 34 Jurimetrics J. 21, 33 (1993).

20 The defendant posits that many lawyers and judges have a difficult time

interpreting probabilistic information. See J. Koehler, ‘‘Forensic Fallacies

and a Famous Judge,’’ 54 Jurimetrics J. 211, 212–17 (2014) (discussing three

cases in which then Judge Richard A. Posner of the United States Court of

Appeals for the Seventh Circuit committed basic errors in probabilistic

reasoning, including DNA evidence).

21 The defendant also argues that all of the Williams factors except the

frequency of the impropriety weigh in favor of reversal. See footnote 16 of

this opinion; State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). He

contends that reversal is warranted because the state’s case was relatively

weak and the court gave no curative instruction. Because we conclude that

the prosecutor committed no impropriety in her final argument, we need

not address the Williams factors. Again, we note that trial counsel did not

object to the portion of the prosecutor’s argument at issue in this claim and

requested no curative instruction.