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STATE OF CONNECTICUT v. CARLOS E.*

(AC 36025)

Lavine, Mullins and Bishop, Js.

Argued February 20—officially released July 21, 2015

(Appeal from Superior Court, judicial district of

Windham, Boland, J.)

Alice Osedach, assistant public defender, with whom

was Jesse Smolin, certified legal intern, for the appellant (defendant).

Melissa Patterson, assistant state’s attorney, with

whom were Patricia M. Froehlich, state’s attorney, and

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

MULLINS, J. The defendant, Carlos E., appeals from

the judgment of conviction of three counts of risk of

injury to a child pursuant to General Statutes § 53-21

(a) (2). On appeal, the defendant claims: (1) he was

prejudiced in his defense when the trial court permitted

the state to file an amended long form information

without demonstrating good cause or that the substitution would not violate his substantive rights; (2) the

court improperly admitted, without redacting the double hearsay contained therein, the defendant’s written

statement to police; and (3) he was deprived of a fair

trial due to prosecutorial impropriety in closing argument. Although we agree that one of the prosecutor’s

comments was improper, we, nevertheless, conclude

that it was harmless. We reject the defendant’s other

claims and, accordingly, affirm the judgment of the

trial court.

The jury reasonably could have found the following

relevant facts. The victim, who was born in August,

1993, lived with her mother and her two older brothers

in an apartment complex. The victim’s aunt, who was

the sister of the victim’s mother, also lived in the apartment complex with the defendant and their four

children.

In 2003, the victim was in the third grade.1 During

that year, the defendant was unemployed and he stayed

home to care for his children while his wife worked

the 3:30 p.m. to 11:30 p.m. shift at herjob. The defendant

also babysat the victim both before school and after

school, until the victim’s mother returned home from

work. On three occasions during 2003, the defendant

pulled down the victim’s pants and underwear and inappropriately touched her vaginal area and buttocks, and,

on the third occasion, he also made the victim touch

his erect penis and he rubbed his penis against her leg.

The defendant also threatened the victim, telling her

that he would kill her mother and brothers if she told

anyone about his actions.

The victim remained silent until she was in seventh

grade, which was in 2007, when she told her best friend

about the abuse. Then, several years later, in 2011, when

the victim was seventeen years old, she told her mother

that she was pregnant. Approximately one and one-half

weeks later, the victim disclosed to her mother that

she had been sexually abused by the defendant. The

victim’s mother insisted that the victim discuss these

events with a counselor, who reported the abuse to the

police. The victim then met with the police and gave a

statement. The police, thereafter, questioned the defendant, who also gave a written statement.

The state charged the defendant with three counts

of risk of injury to a child. During trial, the defendant’s

theory of defense was that the victim concocted the
abuse allegations in order to divert focus from her pregnancy, and he could not have abused the victim because

he never had babysat the victim when his wife was at

work, but that his wife always had been present when

he babysat the victim. The jury found the defendant

guilty, and the court accepted the verdict and sentenced

the defendant to a total effective sentence of thirteen

years imprisonment, execution suspended after seven

years, with twenty years of probation. This appeal

followed.

I

The defendant claims that the court abused its discretion by permitting the state to file an amended long

form information without demonstrating good cause or

that the substitution would not violate the defendant’s

substantive rights.2 Specifically, he claims: ‘‘The defendant was prejudiced in his defense as a result of a

material variance between the allegations stated in the

January 16, 2013 long form information and the revised

long form information, which was released at the start

of the trial and substantial injustice was done to the

defendant because of the variance.’’ Because this claim

is unpreserved, the defendant requests that we review

his claim pursuant to State v. Golding, 213 Conn. 233,

239–40, 567 A.2d 823 (1989).

Although the record is adequate for review and the

claim is of constitutional magnitude, the alleged constitutional violation does not clearly exist because the

defendant has failed to demonstrate a denial of due

process. Specifically, the defendant has failed to show

that he suffered prejudice as a result of the amended

information. See State v. Enrique F., 146 Conn. App.

820, 825, 79 A.3d 140 (2013) (improper revised information implicates defendant’s right to fair notice of

charges against him, but, on appeal, defendant bears

burden of making specific showing of prejudice in order

to establish due process violation), cert. denied, 311

Conn. 903, 83 A.3d 350 (2014).

The following additional facts and procedural history

inform our review. The prosecutor, on January 16, 2013,

filed a long form information in which he alleged that

the defendant had sexually abused the victim on or

about divers dates in 2004. The defendant then

requested, inter alia, that the time frame be narrowed

to at least state a particular season. The prosecutor

stated that he expected the victim to testify that the

abuse occurred between January, 2004, and the end of

the school year in 2004.3 On February 14, 2013, prior

to the start of evidence, the prosecutorfiled an amended

long form information changing the dates of the alleged

abuse from divers dates in 2004, to divers dates in 2003.

The defendant’s attorney stated that his previous objection still stood. The court permitted the filing of the

amended information. Thereafter, the jury was sworn,

and the court read the amended information to the jury,
along with its preliminary instructions. The defendant

claims that the court abused its discretion by allowing

the state to file the amended information without establishing good cause or that the defendant’s substantive

rights would not be violated by the amendment.

‘‘Our standard of review and the requirements for

amending the information are well established. On

appeal, our [standard of review] of the court’s decision

to permit an amendment to the information is one of

abuse of discretion. . . . Before a trial begins, the state

has broad authority to amend an information . . . .

Once the trial has started, however, the prosecutor is

constrained by the provisions of Practice Book § 36-

18. . . . If the state seeks to amend charges after the

commencement of trial, it shoulders the burden of

establishing that no substantive rights of the defendant

would be prejudiced. . . . Like any other party petitioning the court, the state must demonstrate the basis

for its request. Under [Practice Book § 36-18], the state

must show: (1) good cause for the amendment; (2) that

no additional or different offense is charged; and (3)

that no substantive right of the defendant will be prejudiced. . . . [When the] defendant does not allege that

the amended information charged an additional or different offense . . . the only issues are whether the

state had good cause to amend the information and

whether [the defendant] suffered prejudice.’’ (Citation

omitted; internal quotation marks omitted.) State v.

Enrique F., supra, 146 Conn. App. 824.

‘‘[An] improper amendment of the information implicates the defendant’s constitutional right to fair notice

of the charges against him. . . . At trial, the state has

the burden of proving that amending the information

does not prejudice the defendant’s substantive rights.

. . . On appeal, however, the defendant bears the burden of making a specific showing of prejudice in order

to establish that he was denied the right of due process

of law. . . . In the prejudice analysis, the decisive question is whether the defendant was informed of the

charges with sufficient precision to be able to prepare

an adequate defense. . . . If the defendant has not

asserted an alibi defense and time is not an element of

the crime, then there is no prejudice when the state

amends the information to amplify orto correct the time

of the commission of the offense . . . . Ultimately, if

the amendment has no effect on the defendant’s

asserted defense,there is no prejudice.’’(Citations omitted; internal quotation marks omitted.) Id., 825–26.

In this case, it does not appear that the state

attempted to establish to the trial court that it had good

cause to submit an amended information after the start

of trial or that the court explicitly found good cause to

permit such an amendment.4 See id., 824 (‘‘[t]o show

good cause to amend, the state must articulate a reason

why the amendment is required’’ [emphasis added]).
Nevertheless, we must consider whether the defendant

has established the existence of a due process violation

by demonstrating that he suffered prejudice as a result

of the amendment. The defendant contends that he

suffered prejudice because ‘‘[h]ad the defense been

informed earlier of the date change, the defendant

would have had more time to prepare the witness [his

wife] to speak about 2003 and refute the fact that any

allegations occurred during that year. . . . At the time

of the state’s amendment, the defendant had only prepared a defense for the time frame of 2004 . . . .’’ (Citation omitted.) He also argues: ‘‘If the defendant had fair

notice of the dates alleged, he would have been able

to establish a defense that included that time frame and

created a reasonable doubt in the minds of the jurors.’’

We are not persuaded.

The defendant’s relevant theory of defense was that

he never babysat the victim without his wife being present in the home and that they had watched the victim

only for a brief period of time, namely, approximately

ten days during her winter vacation from school in

December, 2004. The defendant did not testify at trial.

He did, however, present the testimony of his wife and

two of his children.

The defendant’s wife testified, in relevant part, that

she and the defendant babysat the victim only in the

last week of 2004, that she was there the entire time,

and that the defendant never was alone with the victim.

One of the defendant’s children, who was seventeen at

the time of trial, testified, however, that in 2003, the

defendant babysat the victim after school, when she

got off the bus. He stated that the defendant never was

alone with the victim or with any of the children, and

that his mother, the defendant’s wife, was home with

them. Another of the defendant’s children testified that

his father babysat the victim after school, but that his

mother always was present.

The defendant argues on appeal that the extent of

the prejudice caused by the amended information was

not fully known until the state called the human

resource person from his wife’s employer, who testified

that the defendant’s wife usually worked from 3:30 p.m.

to 11:30 p.m. during 2003. Appellate counsel contended

during appellate oral argument that the defendant’s wife

worked different hours in 2004 and that she was home

when the children returned from school each day. The

record, however, does not substantiate this contention.

Although the defendant correctly states that the

record demonstrates that his wife worked 3:30 p.m. to

11:30 p.m. during 2003, her attendance records for 2004

and 2005 also were admitted as full exhibits for the

defendant during trial. These records clearly show that

the defendant’s wife worked the same hours, 3:30 p.m.

to 11:30 p.m., during almost all of 2004; in 2005 she

worked first shift, which was 7:30 a.m. to 3:30 p.m.
Additionally, the defendant’s wife specifically testified

that she worked second shift, 3:30 p.m. to 11:30 p.m.,

throughout 2003 and into the last week of December,

2004, when she changed to first shift. The defendant

has failed to demonstrate a denial of due process by

showing that he was prejudiced by the filing of an

amended information on the first day of evidence.

Accordingly, his claim fails under the third prong of

Golding.

II

The defendant’s next claim is that the court improperly admitted his statement to police without redacting

the double or triple hearsay contained therein. He

argues that the ‘‘state presented evidence that was inadmissible under §§ 8-1, 8-2 and 8-7 of the Connecticut

Code of Evidence, that included the defendantrecalling,

not his own thoughts or feelings but, what his wife told

him that [the victim] had told her mother [namely] that

he inappropriately touched [the victim] in her private

parts. Thus, it is double hearsay since the defendant

quoted something his wife told him that she heard from

[the victim’s] mother, who heard it from [the victim].’’

The defendant further argues that he was harmed by

the court’s ruling because there can be ‘‘no doubt that

the jury was substantially swayed by the inclusion of

this double hearsay and the state’s emphasis and use

of it in closing argument.’’

The state argues that the court properly admitted the

statement without redaction because the single sentence sought to be excluded was not hearsay. The state

also contends that the sentence was evidence of the

defendant’s consciousness of guilt. Finally, the state

argues that, even if the court erred in not redacting

the statement, the defendant cannot demonstrate harm

because this single sentence was cumulative of the

remainder of the statement. We conclude that even if

the court improperly admitted the statement without

redaction, the defendant has failed to demonstrate harm

because the contested portion of the statement merely

was cumulative of other portions of the statement.

The following additional facts are relevant to our

review. During the testimony of Trooper Pedro Nunez

of the Connecticut State Police, the state sought to

admit into evidence the written statement of the defendant. The defendant objected to one sentence in the

statement on hearsay grounds.5 That sentence provided:

‘‘I remember around that time my wife . . . came up

to me and told me that [the victim] told her mother

. . . that I inappropriately touched her in her private

parts.’’ The prosecutor argued that this sentence was

not hearsay because it was not being offered for the

truth of the matter asserted, and that he actually

‘‘believe[d] the defendant made that up to protect himself.’’ He further argued that the sentence was incriminating on its face, it was untrue, it was not being offered
for its truth, and, therefore, it was not hearsay. The

court overruled the defendant’s objection and admitted

the statement in its entirety.

‘‘The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial

court has broad discretion in ruling on the admissibility

. . . of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We

will make every reasonable presumption in favor of

upholding the trial court’s ruling, and only upset it for

a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where

there was an abuse of discretion and a showing by the

defendant of substantial prejudice or injustice. . . .

This deferential standard is applicable to evidentiary

questions involving hearsay, generally . . . and to

questions relating to prior consistent statements, specifically.’’ (Citations omitted; emphasis added; internal

quotation marks omitted.) State v. Hines, 243 Conn.

796, 801–802, 709 A.2d 522 (1998).

‘‘[T]o the extent that we assume impropriety in the

trial court’s evidentiary [rulings], [w]hen an improper

evidentiary ruling is not constitutional in nature, the

defendant bears the burden of demonstrating that the

error was harmful. . . . [T]he proper standard for

determining whether an erroneous evidentiary ruling

is harm[ful] should be whether the jury’s verdict was

substantially swayed by the error.’’ (Internal quotation

marks omitted.) State v. Paul B., 315 Conn. 19, 30–31,

105 A.3d 130 (2014). ‘‘It is well recognized that any error

in the admission of evidence does not require reversal

of the resulting judgment if the improperly admitted

evidence is merely cumulative of other validly admitted

[evidence].’’ (Internal quotation marks omitted.) State

v. Dehaney, 261 Conn. 336, 364, 803 A.2d 267 (2002),

cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed.

2d 1070 (2003).

The defendant’s statement, without the portion

sought to be redacted, provided: ‘‘I have been living

in [a certain area] for approximately [eighteen] years.

Approximately [eight] or [nine] years ago, I resided at

[a certain address] with my wife [and four children].

At that time, I was unemployed and stayed home cooking and watching the children. I remember around that

time watching my wife’s niece [the victim] from about

3:30 p.m. to 4:00 p.m. until her mother . . . would get

home from work. [The victim] would also come over

in the mornings and stay with [two of my children] until

the school bus came to pick them up. . . . I told my

wife . . . and [the victim’s mother] that she would

have to find another babysitter because I didn’t want

any problems. I can’t think of any reason that [the victim] would accuse me of ever touching her private area.

When I learned that she accused me of touching her, I
was upset and told [my wife and the victim’s mother]

that I refuse to watch her anymore.’’

It is clear from reading the defendant’s statement

without the contested sentence, that the defendant

stated that he had watched the victim both in the morning and after school, and that he stopped watching her

because he was upset that she had accused him of

touching her. The challenged portion of the statement

added nothing particularly relevant to the state’s case

that was not already contained in the remainder of the

statement. On this basis, we conclude that the defendant has failed to demonstrate that the admission of

the unredacted statement was harmful. See State v.

Dehaney, supra, 261 Conn. 352 (despite ‘‘affidavit

improperly [being] admitted because it did not satisfy

the hearsay state of mind exception . . . [i]ts erroneous admission . . . was harmless because it was

cumulative of other properly admitted evidence’’).

III

The defendant claims that ‘‘[t]he prosecutor made

numerous improper statements during closing [rebuttal] argument that were individually and cumulatively

so egregious that they deprived him of his constitutional

right to a fair trial pursuant to the fifth and fourteenth

amendments [to] the United States constitution, and

article first, § 8, of the constitution of Connecticut.’’6

The defendant contends that the prosecutor, during

rebuttal argument, improperly (1) appealed to the passions and emotions of the jurors through the excessive

use of sarcasm, (2) repeatedly interjected his own opinions, especially on the issue of witness credibility, and

(3) argued facts not in evidence. The state argues that,

when taken as a whole and viewed in context, there is

nothing improper in the prosecutor’s comments. After

setting forth our standard of review, we will consider

each of these alleged areas of impropriety in turn.

‘‘[P]rosecutorial [impropriety] of a constitutional

magnitude can occur in the course of closing arguments. . . . In determining whether such [an 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. Miller, 128 Conn. App.

528, 535, 16 A.3d 1272, cert. denied, 301 Conn. 924, 22

A.3d 1279 (2011).

‘‘In analyzing claims of prosecutorial impropriety, we

engage in a two step analytical process. . . . We first
examine whether prosecutorial impropriety occurred.’’

(Internal quotation marks omitted.) State v. Chase, 154

Conn. App. 337, 341, 107 A.3d 460 (2014), cert. denied,

315 Conn. 925, 109 A.3d 922 (2015). In conducting such

an examination, we take into account whether the

defendant objected to the allegedly improper comment.

Where, as here, ‘‘the defendant failed to object at trial

to the remarks that form the basis of his appeal, our

Supreme Court has explained that a defendant’s failure

to object at trial to each of the occurrences that he

now raises as instances of prosecutorial impropriety,

though relevant to our inquiry, is not fatal to review of

his claims. . . . This does not mean, however, that the

absence of an objection at trial does not play a significantrole in the determination of whetherthe 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.’’ (Internal

quotation marks omitted.) Id., 343–44.

‘‘Second, if an impropriety exists, we then examine

whether it deprived the defendant of his due process

right to a fair trial. . . . 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. . . .

An appellate court’s determination of whether any

improper conduct by the prosecutor violated the defendant’s right to a fair trial is predicated on the factors

established in State v. Williams, 204 Conn. 523, 540,

529 A.2d 653 (1987). Those 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. . . .

[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 . . . .’’ (Citations omitted; internal quotation

marks omitted.) State v. Chase, supra, 154 Conn.

App. 341–42.

A

The defendant claims that the ‘‘prosecutor appealed

to the passions and emotions of the jurors through his

repeated and excessive use of sarcasm.’’ He argues that

these sarcastic statements and phrases were made only

to denigrate the defendant and his main witness. We

are not persuaded.

‘‘[W]e have recognized that the excessive use of sar-
casm may improperly influence a jury. . . . [N]eedless

sarcasm [is] inconsistent with [a] state’s attorney’s professional responsibility . . . . Although we neither

encourage nor condone the use of sarcasm, we also

recognize that not every use of rhetorical language or

device is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . [S]ome use

of sarcastic and informal language, when intended to

forcefully criticize a defense theory on the permissible

bases of the evidence and the common sense of the

jury, is not necessarily improper. . . . Further, it is

important to note that defense counsel’s failure to

object to allegedly sarcastic and denigrating comments

. . . as in the present case, suggests that counsel did

not believe the alleged improprieties were unfairin light

of the record at that time.’’ (Citations omitted; internal

quotation marks omitted.) State v. Grant, 154 Conn.

App. 293, 320–21, 112 A.3d 175 (2014), cert. denied, 315

Conn. 928, 109 A.3d 923 (2015).

The defendant argues that the following statement

made by the prosecutor was overly sarcastic. ‘‘So let

me see, if I get this straight. The entire defense case is

based on a couple of inconsistent memories that the

victim had in the case. Number one, that she—she can’t

remember whether—or her memory about whether she

had the good-touch, bad-touch conversation with her

mother happened or not. And, number two, she didn’t

correct the date of birth the Trooper Nunez put on her

statement. . . . So she didn’t correct those two things

or her memory was inconsistent about that, so that’s—

so that’s the problem with her testimony. That’s what

you’re supposed to believe.’’ Additionally, the defendant

contends that the prosecutor’s repeated use of the

phrase ‘‘star witness’’ to describe the defendant’s wife,

who testified on the defendant’s behalf, also was unduly

sarcastic. He contends that the combination of these

sarcastic remarks amounted to prosecutorial impropriety. We disagree.

Although we do not condone the use of sarcasm by

a prosecutor, we, nevertheless, generally do not consider a limited use to rise to the level of impropriety.

Here, the first comments by the prosecutor of which

the defendant complains, namely, the prosecutor’s use

of ‘‘let me see if I get this straight’’ and ‘‘that’s what

you’re supposed to believe,’’ were an attempt by the

prosecutor to call into question a theory of defense

raised by defense counsel during closing argument,

namely, that the victim was not credible. See State v.

Grant, supra, 154 Conn. App. 324. The comments were

not an attempt to disparage the defendant, but, rather,

were comments meant to suggest that the jury should

not believe that the victim was not credible simply

because she may have forgotten two minor details. Use

of such a rhetorical device is not improper. Id. We also

conclude that the prosecutor’s use of the phrase ‘‘star

witness’’ on three occasions to describe the defendant’s
wife did not rise to the level of impropriety. Indeed, in

point of fact, the defendant’s wife was the key witness

the defendant presented to exculpate himself for these

crimes by showing that she always babysat with him

and that he could not have committed these crimes

against his wife’s niece while his wife was present. Thus,

her testimony was the basis on which the defendant’s

defense principally relied. Highlighting her as the ‘‘star

witness’’ simply was factually accurate. Furthermore,

even if the term was questionable in terms of being

sarcastic, it was not only based on the evidence presented but it also was not excessive, nor did it denigrate

the defendant or his witness.

B

The defendant next claims that ‘‘[p]rosecutorial

impropriety occurred when the prosecutor repeatedly

interjected his opinion in his [rebuttal] argument.’’ He

argues that the prosecutor improperly expressed his

opinion concerning the victim’s credibility by telling

the jury that the victim had no motive to lie, that she

was telling the truth, that she did the right thing by

coming forward, and that she was looking for justice

when she came forward. Additionally, the defendant

contends that the prosecutor improperly told the jury

that the victim sacrificed herself by not coming forward

earlier. Finally, the defendant argues that the prosecutor improperly expressed his opinion concerning the

defendant’s guilt when he told the jury that parts of the

defendant’s sworn statement to the police were not

true. We are not persuaded that any of these comments

were improper.

‘‘A prosecutor may not express his own opinion,

directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the

defendant. . . . Such expressions of personal opinion

are a form of unsworn and unchecked testimony, and

are particularly difficult for the jury to ignore because

of the prosecutor’s special position. . . . Moreover,

because the jury is aware that the prosecutor has prepared and presented the case and consequently, may

have access to matters not in evidence . . . it is likely

to infer that such matters precipitated the personal

opinions. . . . 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 . . . .’’ (Citation omitted; internal quotation

marks omitted.) State v. Luster, 279 Conn. 414, 435, 902

A.2d 636 (2006).

Additionally, our Supreme Court ‘‘previously has concluded that the state may argue that its witnesses testified credibly, if such an argument is based on

reasonable inferences drawn from the evidence. See

State v. Burton, 258 Conn. 153, 169–70, 778 A.2d 955

(2001). Specifically, the state may argue that a witness
has no motive to lie. Id., 170; see also State v. Bermudez,

274 Conn. 581, 592–93, 876 A.2d 1162 (2005)(prosecutor

may argue from evidence that state’s witnesses had no

motive to lie), after remand, 95 Conn. App. 577, 897

A.2d 661 (2006); State v. Ancona, [270 Conn. 568, 607,

854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S.

Ct. 921, 160 L. Ed. 2d 780 (2005)] (‘[i]t is permissible

for a prosecutor to explain that a witness either has or

does not have a motive to lie’); State v. Ceballos, 266

Conn. 364, 380–81, 832 A.2d 14 (2003) (state’s closing

argument was not improper because it discussed complainant’s lack of motive to lie). In addition, jurors, in

deciding cases, ‘are not expected to lay aside matters

of common knowledge or their own observations and

experiences, but rather, to apply them to the facts as

presented to arrive at an intelligent and correct conclusion. . . . Therefore, it is entirely proper for counsel

to appeal to a jury’s common sense in closing remarks.’

. . . State v. Ceballos, supra, 402; see also State v.

Rogelstad, 73 Conn. App. 17, 30, 806 A.2d 1089 (2002).’’

State v. Warholic, 278 Conn. 354, 365, 897 A.2d 569

(2006).

A review of each of the challenged comments involving the victim, reveals that they were tied to the evidence and the reasonable inferences to be drawn

therefrom. Additionally, contrary to the defendant’s

argument, it is not improper for the prosecutor to outline the evidence and its reasonable inferences for the

jury and then to explain, on the basis of such evidence,

that the witness had no motive to lie. See id.

We next consider the prosecutor’s comments regarding the defendant’s written statement to police and

whether these comments amounted to an expression

of opinion concerning the defendant’s guilt. The specific

comments of which the defendant complains are as

follows: ‘‘So if you believe [the defendant’s] statement,

we’re expected to believe that both [the victim’s]

mother and [the victim’s] aunt knew about this accusation in 2003 and did nothing about it for eight years.

That’s not true. It doesn’t make any sense that he would

say—the reasons he says this is because he’s trying to

save himself. But that never happened. That conversation never happened. . . . There was no accusation

made in 2003—2003 or 2004. That’s not why he stopped

watching the kids.’’ The defendant also expresses concern about the following: ‘‘[The defendant] admits he’s

home watching his children—his own children, plus

[the victim]. That’s in his statement. Contrary, his wife

gets up here and says something completely different.

And, again, [the defendant’s statement] says around that

time his wife told him about the accusation. We know

that’s just not true. It doesn’t make any sense. You folks

are intelligent people; you can see through that.’’

The defendant contends that ‘‘[b]y arguing that parts

of the defendant’s sworn statement were not true, the
prosecutor was in essence arguing that the defendant

was guilty.’’

After reviewing these comments and considering

them in the context in which they were made, we conclude that they were based on the evidence, especially

the contradiction between the defendant’s sworn statement and the testimony of the defendant’s wife, as well

as the other trial witnesses, and that the comments did

not express the prosecutor’s personal opinion on the

defendant’s guilt. The prosecutor merely pointed out

the contradiction between the defendant’s sworn statement and other evidence, including the testimony of

the defendant’s own witness, and asked the jury to draw

reasonable inferences from that evidence.

C

The defendant also claims that the prosecutor

improperly argued facts not in evidence. He argues:

‘‘The prosecutor told the jury ‘and by the way, she [the

victim] wasn’t pregnant in junior high school when she

told—when she told her friend . . . [about the

assaults].’ There was no evidence introduced by either

party regarding whether [the victim] was pregnant in

junior high school.’’ The state argues that this statement

was based on the evidence and the reasonable inferences that could be drawn therefrom. We conclude that

the statement was improper.

1

‘‘A prosecutor, in fulfilling his duties, must confine

himself to the evidence in the record. . . . Statements

as to facts that have not been proven amount to

unsworn testimony, which is not the subject of proper

closing argument.’’ (Internal quotation marks omitted.)

State v. Taft, 306 Conn. 749, 766–67, 51 A.3d 988 (2012).

‘‘[T]he privilege of counsel in addressing the jury . . .

must never be used as a license to state, or to comment

upon, or even to suggest an inference from, facts not

in evidence, or to present matters which the jury [has]

no right to consider.’’ (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 587, 849 A.2d

626 (2004).

To put the defendant’s claim in proper context, we

set forth the relevant portion of his attorney’s closing

argument and the prosecutor’s response thereto. During

closing argument, defense counsel argued that this case

was about a scared seventeen year old girl who was

afraid because she was telling her mother that she was

pregnant. He stated that the case was ‘‘about a seventeen year old pregnant girl who tells a story about a

nine year old girl.’’ Counsel also stated: ‘‘[S]he told her

mother about the pregnancy. That’s when she tells her

mother about all of this. This is when she tells her this

story about what happened years ago when she came

out to her mother about her pregnancy. That is crucial.

She’s testified that she knew for about a week and a
half that she was pregnant before she told her mother

about this. She was scared. She was scared because

she was pregnant. She was scared because she was

telling her mother that she was pregnant. She came up

with the story to draw attention from her pregnancy.

And guess what, it worked.’’

In rebuttal argument, the prosecutor responded to

this argument by discussing testimony that had been

presented concerning delayed disclosures by childhood

victims and testimony that older children normally tell

their peers about such abuse. He then explained that

in this case, the victim eventually told her best friend

about the abuse when they were in junior high school.

The prosecutor then stated: ‘‘And by the way, [the victim] wasn’t pregnant in junior high school when she

told—when she told her friend . . . . The defense

wants you to think that the entire motivation for this

fabrication was so that she could deflect the attention

off of her pregnancy, which, by the way, her mother

testified that she was fully supportive of and there was

no issue with her being pregnant. But this [flies] in the

face of that because she told her [friend] in seventh

grade . . . . She wasn’t pregnant then.’’

The defendant complains that there is absolutely no

evidentiary basis for the prosecutor’s statement that

the victim was not pregnant in seventh grade. The state

responds: ‘‘[T]here was no evidence that the victim was

pregnant in seventh grade when she first disclosed the

abuse to her friend, and it was a reasonable inference

that the victim’s one year old child was the result of

the 2011 pregnancy. Thus, the argument was proper.’’

(Emphasis added.) We disagree with the state’s

response for two reasons.

First, the prosecutor’s argument was not tied to the

evidence. Rather, it was a factual assertion that the

victim was not pregnant in junior high school when

there was not a scintilla of evidence to support such

an assertion. Second, the state’s argument, that because

there was no evidence that she was pregnant in junior

high school, it essentially proves that she was not pregnant in junior high school, simply is illogical. Accordingly, we conclude that the statement was improper.

2

Because we conclude that the aforementioned comment was improper, we next must consider whether

the comment deprived the defendant of a fair trial.

In the present case, the defendant’s attorney did not

object, request a curative instruction or move for a

mistrial on the basis of the prosecutor’s improper comment. See State v. Jordan, 314 Conn. 89, 114, 101 A.3d

179 (2014) (‘‘[w]hen defense counsel does not object,

request a curative instruction or move for a mistrial,

he presumably does not view the alleged impropriety

as prejudicial enough to jeopardize seriously the defen-
dant’s right to a fair trial’’ [internal quotation marks

omitted]). Furthermore, examining the Williams factors as a whole, we are not persuaded that they weigh

in the defendant’s favor. Although the comment was

not invited by defense counsel, the comment did not

amount to severe impropriety, which is evinced by

defense counsel’s lack of objection or request for any

curative measure. The impropriety was not frequent,

as it was confined to a brief comment during rebuttal

argument. Moreover, whether the victim was pregnant

in junior high school when she told her friend about the

abuse was not central to the critical issues in this case.

Finally, with regard to the final Williams factor, the

strength of the state’s case, ‘‘[o]ur Supreme Court has

noted that a child sexual abuse case lacking conclusive

physical evidence, when the prosecution’s case rests

on the credibility of the victim . . . is not particularly

strong . . . . At the same time, [t]he state’s evidence

does not need to be overwhelming to support a conclusion that prosecutorial impropriety did not deprive the

defendant of a fair trial.’’ (Citation omitted; internal

quotation marks omitted.) State v. Chase, supra, 154

Conn. App. 353. Here, although the state’s case was

not particularly strong, it was not so weak as to be

overshadowed by a single improper comment that had

no evidentiary basis. On the basis of the foregoing, we

conclude that the defendant was not deprived of the

right to a fair trial on the basis of prosecutorial impropriety.

The judgment is affirmed.

In this opinion the other judges concurred.

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

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

to use the defendant’s full name or to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

1 The facts also demonstrate that the victim repeated third grade.

2 The sixth amendment to the United States constitution provides in relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right

. . . to be informed of the nature and cause of the accusation . . . .’’

3 The defendant also had filed a request for a bill of particulars. The court

denied that request, stating that because the allegations stemmed from

conduct many years ago dealing with a child victim, who may have difficulty

recalling the precise time frame, the disclosure of the calendar year in which

the abuse was alleged to have occurred was sufficient. The defendant,

although making some minor comments in his brief about that ruling, has

not set forth a separate claim that the court abused its discretion in denying

his request for a bill of particulars.

4 The state contends that the court implicitly found good cause and did

not state it for the record because the defendant did not object on that

ground to the amendment. We are not persuaded by this contention. The

record does not demonstrate any attempt by the state to articulate good

cause for the amendment, and the court did not discuss or mention good

cause to permit the amendment. Nevertheless, because the defendant, on

appeal, has the burden of proving prejudice in order to establish a due

process violation, we must examine whether he met this burden.

5 The defendant also objected on the ground that this portion of his statement, if not hearsay, was improperly being offered by the prosecutor as

impeachment evidence before the defendant had even decided whether he

would testify on his own behalf. The defendant has not briefed the merits

of this objection on appeal.

6 Although the defendant brings his claim underthe United States constitu-
tion and article first, § 8, of the Connecticut constitution, he has not conducted an independent analysis under the Connecticut constitution. We,

therefore, deem any separate state constitutional claim to be abandoned.

See State v. Francis, 228 Conn. 118, 122 n.3, 635 A.2d 762 (1993).

.