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STATE OF CONNECTICUT v. WILLIAM PAGAN

(AC 35994)

Sheldon, Prescott and Harper, Js.

Argued January 13—officially released July 21, 2015

(Appeal from Superior Court, judicial district of

Hartford, Vitale, J.)

Janice N. Wolf, assistant public defender, for the

appellant (defendant).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and Chris Pelosi, senior assistant state’s attorney, for the appellee (state).
Opinion

HARPER, J. The defendant, William Pagan, appeals

from the judgment of conviction, rendered after a jury

trial, of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On appeal,

the defendant claims that: (1) there was insufficient

evidence to establish that he intended to cause the

victim serious physical injury, which is an essential

element of assault in the first degree as charged in

this case; (2) the trial court improperly admitted the

testimony of a domestic violence expert to explain why

certain victims of domestic violence initially fail to

name their abusers when reporting injuries resulting

from domestic violence; and (3) the prosecutor made

improper remarks in closing argument by arguing facts

not in evidence, impugning defense counsel’s integrity,

and bolstering the credibility of the victim, in violation

of the defendant’s right to a fair trial. We affirm the

judgment of the trial court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to this

appeal. The victim, Tashawna Gamble, lived with her

mother, Johnnie Partin, in an apartment in Hartford.

Gamble began dating the defendant approximately four

months before the incident that gave rise to the present

appeal. Partin disliked the defendant, and did not permit

him inside her apartment while she was home.

Between 4 and 5 p.m. on September 30, 2010, the

defendant called Gamble and asked herfor the personal

identification number (PIN) for her debit card so that

he could use some of her money to repair her car’s

brakes. Gamble refused to give him the PIN because

once before when she had given him the PIN to another

bank card, he used it without her permission to withdraw $900 from her bank account. Upon this refusal,

the defendant became upset with Gamble and they

argued over the telephone.

After Gamble left her place of employment at 6 p.m.,

she picked up the defendant at a nearby housing project

and then drove him to her apartment. Her mother was

not at home. After the defendant and Gamble entered

her bedroom, the defendant brought up Gamble’s

refusal to give him her PIN. When Gamble refused to

argue with the defendant, he grew angry and left the

room. When he returned, the defendant poured a flammable liquid onto Gamble’s shoulder, arm and chest.1

Gamble stood up from her bed, but the defendant stated

that he was not finished talking to her and she sat down.

After Gamble sat back down on the bed, the defendant

lit a small piece of paper. The defendant then used the

burning paper to set Gamble on fire.

The flames spread quickly. Gamble screamed and ran

into the bathroom, while the defendant followed her,

shouting, ‘‘[o]h my gosh, oh my gosh, I didn’t know it
was going to be like that,’’ as he attempted to remove

Gamble’s burning shirt. Gamble asked the defendant to

turn on the shower, but instead he left the bathroom.

Although she was in pain, Gamble managed to get into

the shower. When the defendant returned to the bathroom, Gamble asked him to call for emergency assistance. The defendant, however, wondered aloud what

he should tell the dispatcher, and delayed calling for

help. The defendant, who was on probation, stated that

he did not want to return to jail and that he would say

that Gamble had been smoking a cigarette. He continued to delay calling for help. Gamble then asked the

defendant to call her cousin. As soon as he left to do

so, she called emergency assistance herself.

Gamble told the dispatcher that she had been smoking a cigarette, which she had dropped on herself, starting a fire. When the defendant returned to the bathroom

and learned that Gamble had called for help, he stated

that they ‘‘didn’t have no whole legitimate reason of

what happened . . . .’’ The defendant instructed Gamble to tell emergency responders that she had been

using nail polish remover and lit a cigarette, which she

had dropped into her lap, starting the fire.2 When the

emergency responders arrived, the defendant opened

the door, identified himself and Gamble, and stated that

Gamble had suffered a burn. Gamble told emergency

responders, as the defendant had instructed her, that

she had burned herself by accidentally dropping a cigarette. She then was transported to Saint Francis Hospital and Medical Center in Hartford for treatment.3

During Gamble’s hospitalization, she did not reveal

to anyone that the defendant was responsible for her

injuries. One reason she did not do so was because she

was being given high doses of pain medication and

could not communicate effectively. Another reason,

however, was that she was afraid that the defendant

might attempt to harm her mother. The defendant was

driving Gamble’s motor vehicle, and had keys to her

apartment. Although the defendant never visited Gamble in the hospital, Partin claimed that he repeatedly

drove by the apartment at night and called her, asking

questions about Gamble.

After being released from the hospital, Gamble told

her mother the truth about what had occurred and that

the defendant was responsible for her injuries. Partin

had never believed Gamble’s initial story because Gamble does not smoke. She encouraged Gamble to report

the incident to the police, which she did on November

15, 2010. Subsequently, the defendant was arrested.

On November 1, 2012, the defendant was charged by

long form information with one count each of assault

in the first degree in violation of § 53a-59 (a) (1), assault

in the first degree in violation of § 53a-59 (a) (3), and

assault in the second degree in violation of General

Statutes § 53a-60 (a) (3). Following a jury trial, the
defendant was found guilty of intentional assault in the

first degree in violation of § 53a-59 (a) (1).4 The court

rendered judgment in accordance with the verdict, sentencing the defendant to a term of seventeen years

incarceration to be served consecutively to an unrelated

sentence that he was then serving. This appeal followed.

I

The defendant first claims that there was insufficient

evidence to support his conviction of assault in the first

degree in violation of § 53a-59 (a) (1). Specifically, he

argues that the evidence presented at trial was insufficient to establish, as an essential element of that

offense, that he intended to cause Gamble serious physical injury. We disagree.

We begin with the well established principles that

guide our review. ‘‘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 . . . .

This court cannot substitute its own judgment for that

of the jury if there is sufficient evidence to support the

jury’s verdict. . . .

‘‘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. Stephen J. R., 309 Conn. 586, 593–94,

72 A.3d 379 (2013).5

Section 53a-59 provides in relevant part: ‘‘(a)A person

is guilty of assault in the first degree when: (1) With

intent to cause serious physical injury to another person, he causes such injury to such person . . . by

means of a deadly weapon or a dangerous instrument

. . . .’’6 As defined in General Statutes § 53a-3 (11), a

person acts intentionally with respect to a result

demanded in a statute defining an offense when his

conscious objective is to cause the result as defined by

the statute. See State v. Perugini, 153 Conn. App. 773,

780, 107 A.3d 435 (2014), cert. denied, 315 Conn. 911, 106

A.3d 305 (2015). We have long recognized that ‘‘direct

evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the

circumstantial evidence and the rational inferences

drawn therefrom.’’ (Internal quotation marks omitted.)

State v. Hedge, 297 Conn. 621, 658–59, 1 A.3d 1051

(2010); State v. Silva, 285 Conn. 447, 460, 939 A.2d 581

(2008); State v. Fagan, 280 Conn. 69, 80–81, 905 A.2d

1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491,
167 L. Ed. 2d 236 (2007).

In the present case, the jury was instructed in accordance with the definition of ‘‘serious physical injury,’’

as defined in § 53a-3 (4). A ‘‘serious physical injury’’ is

an ‘‘injury which creates a substantial risk of death, or

which causes serious disfigurement, serious impairment of health or serious loss or impairment of the

function of any bodily organ.’’(Internal quotation marks

omitted.) State v. Mendez, 154 Conn. App. 271, 277, 105

A.3d 917 (2014). Thus, to be convicted of assault in the

first degree,there must be sufficient evidence presented

for the jury to conclude beyond a reasonable doubt that

the defendant seriously injured Gamble by creating a

substantial risk of death, or that he caused serious disfigurement, or impairment of health or function of a

bodily organ, while acting with the conscious objective

of causing her such serious physical injury. See State

v. Perugini, supra, 153 Conn. App. 780.

The defendant claims that the record contains insufficient evidence to establish his intent to cause Gamble

to suffer a serious physical injury. We are not persuaded. The defendant does not argue that Gamble did

not suffer a serious physical injury; he claims only that

the evidence was insufficient to prove that he intended

to cause her such an injury. The defendant’s argument

is based on an interpretation of Gamble’s testimony

that places him in the best possible light. He argues

that he did not know that nail polish remover is flammable; that he did not intentionally light the flames; and

that he was shocked by the injuries and leapt to Gamble’s aid. The defendant, in short, attempts to portray

himself as a Good Samaritan, rather than a person who

intentionally set Gamble on fire.

The record contains substantial evidence in support

of the state’s claim that the defendant intended to cause

a serious physical injury to Gamble. On the basis of the

defendant’s instructions to Gamble as to what to tell

emergency responders, the jury reasonably could have

inferred that he was aware that the nail polish remover

he poured on Gamble was highly flammable. The jury

also could have credited the testimony of Cesar Rodriguez, an investigator with the Hartford Fire Department,

that the spill pattern on Gamble’s shirt resulted from

the deliberate pouring of a flammable accelerant on

Gamble. Furthermore, the jury was free to infer that

when the defendant deliberately held a burning paper

close to Gamble’s accelerant soaked clothing, his conscious objective was to set her on fire, which was the

natural consequence of his voluntary conduct. See State

v. Serrano, 123 Conn. App. 530, 544, 1 A.3d 1277 (2010)

(jury may infer that defendant intends natural consequences of voluntary conduct), cert. denied, 300 Conn.

909, 12 A.3d 1005 (2011).

On the basis of these inferences, a reasonable juror

could have concluded that the defendant’s conscious
objective was to set Gamble on fire and cause her to

suffer serious burns and their damaging consequences.

As Richard Garvey, a surgeon, testified, the deliberate

use of the accelerant resulted in injuries that if left

untreated could have resulted in Gamble’s death, and,

in fact, caused serious burns over 20 percent of her

body and resulting permanent injuries.

To the extent that the defendant challenges the sufficiency of these inferences to prove intent, on the basis

of other inferences that could have been drawn by the

jury from his claimed efforts to mitigate the harm to

Gamble, we note that ‘‘the jury is not barred from drawing those inferences consistent with guilt and is not

required to draw only those inferences consistent with

innocence.’’ (Internal quotation marks omitted.) State

v. Otto, 305 Conn. 51, 74, 43 A.3d 629 (2012). ‘‘[I]t is

beyond question that the trier of fact, here, the jury, is

the arbiter of credibility. This court does not sit as

an additional juror to reconsider the evidence or the

credibility of the witnesses.’’ (Internal quotation marks

omitted.) State v. Holmes, 75 Conn. App. 721, 742, 817

A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222

(2003). We conclude, therefore, that the jury reasonably

could have found that the defendant intended to cause

a serious physical injury to Gamble by deliberately pouring an accelerant upon her and then igniting it.

II

The defendant next claims that the court abused its

discretion by admitting the testimony of a domestic

abuse expert offered by the state. Specifically, the

defendant argues that: (1) the trial court erred in failing

to categorically preclude expert testimony regarding

the misreporting or nonreporting of serious domestic

abuse by first time victims of such abuse because the

state did not connect the expert testimony to the contested issues in the case by adducing evidence of a

history of domestic abuse between the defendant and

Gamble; and (2) that even if such testimony was not

categorically barred, the expert’s testimony was irrelevant because the necessary evidentiary foundation for

it was not laid. Because these claims were raised for

the first time on appeal, we conclude that they were

not properly preserved before the trial court and, as a

consequence, we decline to review them.

The following additional facts are relevant to these

claims. As part of its case-in-chief, the state called as

a witness Penny Micca, an outreach advocate with Interval House, a domestic violence and abuse centerlocated

in Hartford. The state sought to qualify Micca as an

expert witness. Outside the presence of the jury, and

in response to a defense query as to the relevancy of

Micca’s testimony and her familiarity with the case, the

state asserted that Micca had never met the victim but

that her testimony would help the jury understand the

general reasons for typical misreporting or nonre-
porting of serious domestic abuse by persons in intimate relationships who are first time victims of such

abuse.

The defendant raised two specific objections to the

admission of Micca as an expert witness: (1) the type

of information that Micca would provide was within

the ken of the average juror; and (2) Micca’s testimony

would result in an improper bolstering of Gamble’s

credibility as a witness, causing the testimony to be

more prejudicial than probative. The trial court

requested that the state make a proffer as to the testimony it sought to elicit from Micca and allowed the

defendant to voir dire her. Micca testified about the

general nature and circumstances of nontypical

reporting by first time victims of domestic abuse. She

specifically pointed to the severe trauma and shock

that can occur from first time instances of abuse. Micca

stated that a victim subjected to such trauma often feels

denial, shame, and particularly extreme fear of future

impacts on both themselves and their family and

friends. Micca further testified that as a result of the

trauma and the attendant feelings, victims will often

fail to disclose the abuse, or take blame upon themselves. She finally indicated that she did not know Gamble and had not evaluated her or the veracity of her

statements. Following the proffer, the court ruled, pursuant to State v. Favoccia, 306 Conn. 770, 800, 51 A.3d

1002 (2012), and State v. Vega, 259 Conn. 374, 788 A.2d

1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L.

Ed. 2d 56 (2002), that the proffered expert testimony

provided by Micca was not within the ken of the average

juror, and, so long as she testified in generalities, was

not improperly bolstering Gamble’s credibility.

Following the ruling, defense counsel argued as

follows:

‘‘[Defense Counsel]: Judge, I understand the court’s

ruling. I’d just, to make sure the record’s complete from

my end, I would observe broadly that perhaps not all

but several of the sex assault cases contain language—

and I’ve paraphrased as a defense attorney something

to the effect of sex assault cases are different and special, and the rules that apply other places sort of are

held in [abeyance] in sexual assault cases because of

the sort of private, discreet nature of a sex assault will

allow things that we wouldn’t necessarily allow other

places. So, I’m not sure that it’s fair to draw that reasoning into this particular case.

‘‘The Court: What aboutthe reasoning in cases regarding battered woman’s syndrome?

‘‘[Defense Counsel]: Judge, I understand those cases

exist, I’m just saying to—

‘‘The Court: Well, I mean, that’s to the argument

you’re making in terms of it’s not just limited to those

kinds of cases or this type of testimony. I’m not saying
it’s a battered woman’s case because the foundation

has not been laid for that, but in terms of what you’re

arguing now—

‘‘[Defense Counsel]: Well, with that—in that sort of,

you know, now we’re beginning to talk about, you know,

whether the witness is allowed to talk in terms of syndromes and other things, and I don’t think that sort of

foundation’s been laid.

‘‘The Court: All right. [State’s attorney], obviously

you’re aware of [Favoccia] . . . being aware that that

case does say that you cannot opine—ask the witness

to opine about a particular complainant and whether

that person’s exhibited general characteristics, so that,

based on what I heard and the proffer, did not occur,

but I’m well aware of that, so I don’t expect any deviation from the questions that you had asked [during your

proffer] in connection with that case.’’

The defendant argues as a threshold matter that the

more prejudicial than probative objection and the colloquy after the court’s ruling together properly preserved

the issues he seeks to raise on appeal. The state argues

that both of the arguments raised as part of this claim

was not properly preserved because the defendant did

not object to the testimony on those grounds. We agree

with the state and, thus, decline to review the defendant’s claim.

‘‘[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled.

This court is not bound to consider claims of law not

made at the trial. . . . In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . In objecting to evidence, counsel must

properly articulate the basis of the objection so as to

appraise the trial court of the precise nature of the

objection and its real purpose, in order to form an

adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection,

any appeal will be limited to the ground asserted. . . .

‘‘These requirements are not simply formalities. They

serve to alert the trial court to potential error while

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

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

objections never raised at trial unfairly subjects the

court and the opposing party to trial by ambush.’’(Internal quotation marks omitted.) State v. Cabral, 275 Conn.

514, 530–31, 881 A.2d 247, cert. denied, 546 U.S. 1048,

126 S. Ct. 773, 163 L. Ed. 2d 600 (2005),

It is clear from the record that the defendant did not

object to Micca’s testimony on the grounds of relevance

or lack of an adequate evidentiary foundation. When

asked to articulate his specific objections by the trial

court, the defendant stated that he objected specifically

on the grounds that the testimony was within the ken

of the jury, and was more prejudicial than probative
because it tended to bolster Gamble’s credibility. The

record reflects that the argument after the defendant’s

objections and the colloquy following the ruling on the

objections were focused solely on these two grounds.

Because the defendant did not specifically object on

the grounds on which he now seeks review, he failed

to preserve the objections adequately for review.

The defendant argues that when he objected that

Micca’s testimony was more prejudicial than probative,

he implicitly objected to the testimony’s relevance. This

argument misconstrues the nature of relevance and

more prejudicial than probative objections. As this

court has previously stated, relevant evidence is ‘‘evidence that has a logical tendency to aid the trier in the

determination of an issue.’’ (Internal quotation marks

omitted.) State v. Clark, 68 Conn. App. 19, 24, 789 A.2d

549 (2002), aff’d, 264 Conn. 723, 826 A.2d 128 (2003).

As our Supreme Court has noted, the test for whether

evidence is unjustly prejudicialrequires us to determine

‘‘whether the prejudicial effect of otherwise relevant

evidence outweighs its probative value . . . .’’ (Emphasis added.) State v. Collins, 299 Conn. 567, 587, 10 A.3d

1005, cert. denied, U.S. , 132 S. Ct. 314, 181 L.

Ed. 2d 193 (2011). An objection that evidence is more

prejudicial than probative argues that regardless of the

relevance of the evidence, it must be excluded due to

the threat of an injustice were it admitted. See State v.

Paulino, 223 Conn. 461, 477, 613 A.2d 720 (1992); C.

Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008)

§ 4.8.1, p. 142. For this reason, the two objections are

separate and distinct, and an argument that Micca’s

testimony was irrelevant was not preserved by the

defendant’s general challenge that the testimony was

more prejudicial than probative. See State v. Allen, 289

Conn. 550, 564, 958 A.2d 1214 (2008) (prejudice not

measured by relevance but by impact of extraneous

information).

The defendant additionally argues that his counsel’s

colloquy with the court following the court’s ruling was

sufficient to preserve the issues now raised on appeal.

Our Supreme Court, however, addressed a similar circumstance in Cabral. In that case, the court did not

consider a postruling colloquy on the applicability of

case law to the stated objections as raising a new objection. State v. Cabral, supra, 275 Conn. 529 n.10. As in

Cabral, the defendant in this case did not specifically

raise an additional objection, nor did he deviate in his

argument from his earlier stated objections. See id.

Rather, he challenged only the court’s reasoning in

applying Favoccia and Vega to the ruling on his objection that the testimony was within the ken of the jury.

At no time did he object on the grounds that there

was inadequate foundation to support the use of expert

testimony for the purpose of explaining typical misreporting or nonreporting of serious domestic abuse by
persons who are first time victims of such abuse.

Rather, the defendant noted that no foundation had

been laid for a discussion by the witness about whether

Gamble suffered from specific medical syndromes,

such as battered woman’s syndrome. The trial court

agreed and noted that had Micca so testified, her testimony would have been precluded under Favoccia. It

never considered whether a properfoundation had been

laid forthe entirety of Micca’s testimony. Consequently,

the record does not reflect that the colloquy sufficiently

preserved the issue raised on appeal.

Finally, the defendant seeks review of this claim

under State v. Golding, 213 Conn. 233, 567 A.2d 823

(1989). ‘‘In State v. Golding, [supra, 239–40], this court

set forth four conditions that a defendant must satisfy

before he may prevail, on appeal, on an unpreserved

constitutional claim. Because a defendant cannot prevail under Golding unless he meets each of those four

conditions, an appellate court is free to reject a defendant’s unpreserved claim upon determining that any one

of those conditions has not been satisfied.’’ (Footnote

omitted.) State v. Brunetti, 279 Conn. 39, 54, 901 A.2d

1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328,

167 L. Ed. 2d 85 (2007).

The defendant must show that the unpreserved issue

is of constitutional magnitude thatimplicates a violation

of a fundamental right as one of the four conditions

that must be met to merit review under Golding. State

v. Elson, 311 Conn. 726, 744, 91 A.3d 862 (2014). Our

Supreme Court has noted, however, that an unpreserved claim regarding the admission of expert testimony does not raise a constitutional issue. See State

v. Toccaline, 258 Conn. 542, 550–52, 783 A.2d 450 (2001).

We are unconvinced by the defendant’s claims to the

contrary. ‘‘Putting a constitutional tag on a nonconstitutional claim will no more change its essential character

than calling a bull a cow will change its gender.’’ State

v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). We

therefore decline to review the merits of the defendant’s claim.

III

Finally, the defendant claims that several statements

made by the prosecutor during the closing argument

were improper and deprived him of a fair trial. The

defendant specifically challenges statements in which

he claims the prosecutor discussed facts not in evidence, improperly disparaged the integrity of defense

counsel, and attempted to influence the jury as to Gamble’s credibility. We conclude that none of the challenged statements were improper.7

‘‘[I]n analyzing claims of prosecutorial [impropriety],

we engage in a two step analytical process. The two

steps are separate and distinct: (1) whether [an impropriety] occurred in the first instance; and (2) whether
that [impropriety] deprived [the] defendant of his due

process right to a fair trial. Put differently, [an impropriety is an impropriety], regardless of its ultimate effect

on the fairness of the trial; whether that [impropriety]

caused or contributed to a due process violation is a

separate and distinct question . . . .’’ (Internal quotation marks omitted.) State v. Andrews, 313 Conn. 266,

279, 96 A.3d 1199 (2014); State v. Stevenson, 269 Conn.

563, 572, 849 A.2d 626 (2004).

‘‘As we previously have recognized, prosecutorial

[impropriety] of a constitutional magnitude can occur

in the course of closing arguments. . . . When making

closing arguments to the jury, [however] [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. . . . Moreover, [i]t does not follow . . . that

every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless,

the prosecutor has a heightened duty to avoid argument

that strays from the evidence or diverts the jury’s attention from the facts of the case.’’ (Internal quotation

marks omitted.) State v. Medrano, 308 Conn. 604, 611–

12, 65 A.3d 503 (2013).

A

The defendant first claims that the prosecutor made

improper statements that were based on facts that were

not in evidence. He specifically challenges portions of

the prosecutor’s closing arguments in which the prosecutor stated that: (1) the defendant gave first responders ‘‘a lot of information’’; (2) the defendant placed nail

polish remover bottles and ashtrays in Gamble’s room;

(3) Gamble was able to identify the nail polish remover

based on smell; and (4) the defendant knew nail polish

remover was flammable.8 We disagree.

‘‘It is well established . . . that 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. . . . 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.’’

(Internal quotation marks omitted.) State v. Jones, 135

Conn. App. 788, 801, 44 A.3d 848, cert. denied, 305 Conn.

925, 47 A.3d 885 (2012).

By asserting that the defendant provided emergency

responders a lot of information, the prosecutor was
inviting the jury to make reasonable inferences from the

evidence at trial. As was established by both Lieutenant

Dan Albani of the Hartford Police Department and Gamble, the defendant greeted the responders at the door,

identified himself, and explained that Gamble was

injured. The jury was thus free to conclude that the

defendant provided the emergency responders with

information about the circumstances of Gamble’s injuries. The prosecutor’s characterization of the information as ‘‘a lot’’ urged the jury to make a permissible

reasonable inference. See State v. Washington, 155

Conn. App. 582, 604, 110 A.3d 493 (2015).

The prosecutor’s statement that the defendant

arranged Gamble’s room with ashtrays and nail polish

removers was also based on reasonable inferences

drawn from the evidence. As the prosecutor noted in

his closing argument, the defendant was the individual

who invented the story that Gamble had spilled nail

polish remover on herself, then lit herself on fire with

a dropped cigarette. He also had the opportunity and

motivation to arrange the room to reflect the version

of events he wanted to portray as true. The jury may

make reasonable inferences from circumstantial evidence. State v.Russell, 101Conn. App. 298, 333, 922A.2d

191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007).

Similarly, the prosecutor’s statement that the defendant knew that nail polish remover was flammable was

based on reasonable inferences from the evidence of

record. We find unpersuasive the assertion by the defendant that the state never demonstrated that he had

such knowledge, especially given how the defendant

suggested to Gamble that the accelerant was nail polish

remover and argued in his own closing that such knowledge was clearly marked on nail polish remover bottles

so that anyone who used them would be aware of its

properties.9 As such, the prosecutor’s statement was

not only based on reasonable inferences drawn from

the evidence, but it properly appealed to the jurors’

common sense. See State v. Andrews, supra, 313

Conn. 304.

The defendant last argues that the prosecutor’s statement that Gamble was able to identify the accelerant

as nail polish remover ‘‘based on smell’’ was directly

contradictory to Gamble’s own testimony. The record

belies the defendant’s claims. Gamble noted that she

smelled the liquid the defendant had poured on her,

but did not identify the liquid as nail polish remover at

that time. She did not testify, as the defendant asserts,

that the liquid did not smell like nail polish remover.

Gamble’s testimony is ambiguous as to what the liquid

smelled like, for she only stated that she was unable

to identify it at the time she was doused, and did not

realize it was nail polish remover until the defendant

instructed her to tell others that it was nail polish

remover. The prosecutor argued that it was the smell,
as well as Gamble’s knowledge that her mother used

nail polish remover and the defendant’s own words

asserting that the liquid was nail polish remover, that

made her conclude that the defendant had doused her

with that type of liquid.

When considering the prosecutor’s statements, we

must not consider them in a vacuum, but rather in their

entire context. State v. Angel T., 292 Conn. 262, 275,

973 A.2d 1207 (2009). The prosecutor’s statement that

Gamble was able to identify the liquid on the basis of

its smell was at most a stretched inference from vague

testimony and was immediately clarified as being part

of an assumption that was based on multiple factors.

Our Supreme Court has declined to afford the most

damaging interpretations to ambiguous remarks by

prosecutors when more reasonable interpretations

exist. See State v. Ciullo, 314 Conn. 28, 48, 100 A.3d

779 (2014). As such, we conclude that the statement

was not improper.

In all four statements challenged by the defendant,

the prosecutor characterized the evidence in a manner

that allowed the jury to draw reasonable inferences,

which is within the bounds of propriety during closing

argument. See State v. Jones, supra, 135 Conn. App.

800–801 (‘‘[a] prosecutor may invite the jury to draw

reasonable inferences from the evidence’’ [internal quotation marks omitted]). Although the defendant may

disagree with the content of those inferences, that does

not render the argument improper. See State v.

Andrews, supra, 313 Conn. 304.

B

The defendant next claims that the prosecutor

improperly disparaged the integrity of defense counsel.

Specifically, the defendant argues that the prosecutor’s

statements during rebuttal argument insinuated that

defense counsel was not basing his argument on the

evidence or was misrepresenting the evidence because

the prosecutor indicated that he ‘‘was going to stick to

the facts,’’ and found the defendant’s argument ‘‘inconceivable . . . .’’10 We are not persuaded that the statements were improper.

Although it is well settled that ‘‘[t]he prosecutor is

expected to refrain from impugning, directly or through

implication, the integrity or institutional role of defense

counsel’’; (internal quotation marks omitted) State v.

James E., supra, 154 Conn. App. 820–21; nothing in the

present case suggests that the prosecutor’s comments

were disparaging. As defense counsel finished his closing argument, he postulated a series of alternative theories to the case, emphasizing that each might have

occurred.11 The prosecutor’s statement in his rebuttal

argument that he was ‘‘going to stick to the facts’’ served

to focus the jury’s attention on the evidence that the

state wanted to highlight in response to defense coun-
sel’s speculation as to the chain of events. See State v.

Holley, 144 Conn. App. 558, 573, 72 A.3d 1279, cert.

denied, 310 Conn. 946, 80 A.3d 907 (2013). The prosecutor’s argument that the defendant’s version of events

was ‘‘inconceivable’’ was directed at the defendant’s

theory, not at defense counsel. These statements are

permissible because they challenge the theory of

defense, not counsel. State v. Salamon, 287 Conn. 509,

558, 949 A.2d 1092 (2008).

C

The defendant last claims that the prosecutorimproperly commented on Gamble’s credibility as a witness.

See State v. Luster, 279 Conn. 414, 435, 902 A.2d 636

(2006). He contends that the prosecutor impermissibly

bolstered Gamble’s credibility with the jury by stating

that Gamble’s story made ‘‘perfect sense’’; asking an

improperrhetorical question about whether she seemed

spiteful; and discussing his pretrial conversations with

Gamble. We disagree.

We initially note that the portion of the prosecutor’s

argument in which he stated that Gamble’s story made

‘‘perfect sense’’ did not impermissibly bolster her credibility.12 When the prosecutor stated that Gamble’s decisions made ‘‘perfect sense,’’ he was addressing the

reason she did not initially tell the police how she sustained her injuries. The characterization was grounded

in the evidence the state elicited through both Gamble’s

testimony and expert testimony forthe specific purpose

of helping the jury to understand the behavior of victims

of abuse. ‘‘It is well established that a prosecutor may

argue about the credibility of witnesses, as long as [his]

assertions are based on evidence presented at trial and

reasonable inferences that jurors might draw therefrom.’’ (Internal quotation marks omitted.) State v.

Ciullo, supra, 314 Conn. 45.

We also conclude that the prosecutor did not act

improperly by asking the jury a rhetorical question as

to whether Gamble was spiteful.13 By asking the question, the prosecutor encouraged the jury to consider

the evidence and weigh the credibility of Gamble’s testimony in context. To the extent that the prosecutor’s

argument encouraged the jury to draw inferences favorable to Gamble’s credibility, its purpose was to ask the

jurors to draw those inferences from the evidence. See

State v. Fauci, 282 Conn. 23, 48, 917 A.2d 978 (2007);

see also State v. Thompson, 266 Conn. 440, 465–66, 832

A.2d 626 (2003).

Finally, we conclude that the prosecutor’s statement

that he did not inappropriately coach Gamble came

in direct response to the defendant’s argument. The

following additional facts are relevant to this claim.

During her direct testimony, Gamble stated that during

and after her hospitalization she felt ‘‘betrayed’’ by the

defendant’s actions. On cross-examination, the defen-
dant questioned her as follows:

‘‘[Defense Counsel]: Now, you get out of the hospital.

You tell the ladies and gentlemen of the jury you felt

betrayed. Right?

‘‘[Gamble]: Excuse me?

‘‘[Defense Counsel:] You told them earlier when you

were talking with [the prosecutor] after you got out,

you felt betrayed. Right?

‘‘[Gamble]: Yes.’’ (Emphasis added.)

Defense counsel later argued in closing that the prosecutor had met with Gamble and coached herto ascribe

her feelings of betrayal resulting from the defendant’s

actions. The defendant then suggested that in fact those

feelings stemmed from an unrelated matter.14 The prosecutor responded during rebuttal argument that, while

he had met with Gamble before her testimony, he had

not engaged in coaching, and rhetorically asked the jury

whether Gamble should have felt anything other than

betrayal, given the injuries she sustained.15

The defendant claims that the prosecutor’s assertion

that Gamble’s meaning behind the word betrayed was

unscripted resulted in an impermissible endorsement

of Gamble’s credibility.16 Although the prosecutor

acknowledged that he had spoken with Gamble, the

statement was not a personal commentary on her reliability. On the contrary, the prosecutor attempted to

counter the implicit assertion by the defendant that the

prosecutor encouraged Gamble to lie about her feelings

and motivations. Our Supreme Court ‘‘clearly has established the propriety of a prosecutor’s comments on

such motives, as long as the remarks are based on the

ascertainable motives of the [witness] rather than the

prosecutor’s personal opinion.’’ (Internal quotation

marks omitted.) State v. Long, 293 Conn. 31, 45, 975

A.2d 660 (2009). The prosecutor’s question as to what

motive Gamble would have to lie about her emotions

following her injuries was therefore not improper

because it did not attempt to bolster Gamble’s credibility through personal opinion. See id., 44. In sum, we

conclude that none of the statements by the prosecutor

during closing argument were improper.

The judgment is affirmed.

In this opinion the other judges concurred.

1 On the basis of the testimony of Lieutenant Cesar Rodriguez, an investigator with the Hartford Fire Department’s fire marshal’s office, the jury reasonably could have found that the pattern of burns on Gamble’s shirt reflected

a deliberate pouring of liquid ratherthan a spill, in part due to the widespread

nature of the burns across the shoulder and arm rather than a localized

amount of spillage. The nature of the burns did not reflect a person

attempting to stop an accidental spill.

2 Lieutenant Dan Albani of the Hartford Fire Department smelled the

distinctive odor of nail polish remover or acetone when he entered Gamble’s

apartment in response to her call. He and Jill Kidik, an officer with the

Hartford Police Department, both saw a nearly empty bottle of nail polish

remover in Gamble’s bedroom.

3 Gamble suffered third degree burns across more than 20 percent of her
body, from her chin to her midriff and across her left shoulder and arm,

and received skin grafts to 20 percent of her body. She developed infections

that required further surgical intervention. As a result of the amount of

time she was hospitalized, she developed blood clots in her legs, which

permanently impaired her left leg. Her left arm has reduced functionality.

She has permanent scarring due to her injuries, which require ongoing

physical therapy. Without treatment, Gamble’s injuries likely would have

resulted in her death.

4 As a result of its guilty verdict on the charge of assault in the first degree

in violation of § 53a-59 (a) (1), the jury did not deliberate or return a verdict

on the other two charges.

5 We note that ‘‘[a]lthough the defendant did not preserve [his] claim at

trial, all sufficiency of evidence claims are reviewable on appeal because

such claims implicate a defendant’s federal constitutional right not to be

convicted of a crime on insufficient proof.’’ State v. Miles, 132 Conn. App.

550, 559, 32 A.3d 969 (2011), cert. denied, 303 Conn. 934, 36 A.3d 692 (2012).

6

‘‘Assault in the first degree is a specific intent crime. . . . It requires

that the criminal actor possess the specific intent to cause physical injury

to another person.’’ (Internal quotation marks omitted.) State v. James E.,

154 Conn. App. 795, 804, 112 A.3d 791 (2015); State v. Sivak, 84 Conn. App.

105, 110, 852 A.2d 812, cert. denied, 271 Conn. 916, 859 A.2d 573 (2004).

7 The defendant failed to object to the alleged improper statements during

trial. ‘‘[I]n cases involving incidents of prosecutorial [impropriety] that were

not objected to at trial . . . it is unnecessary for the defendant to seek to

prevail under the specific requirements of [State v. Golding, supra, 213

Conn. 239–40], and, similarly, it is unnecessary for a reviewing court to apply

the four-pronged Golding test. The reason for this is that the touchstone for

appellate review of claims of prosecutorial [impropriety] is a determination

of whether the defendant was deprived of his right to a fair trial, and this

determination must involve the application of the factors set [forth] by this

court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).’’ (Internal

quotation marks omitted.) State v. Andrews, supra, 313 Conn. 280.

8 For clarity, the challenged portions of the prosecutor’s closing argument

are italicized. The prosecutor’s comments, placed into context, were as

follows. When addressing the defendant’s interaction with emergency

responders, the prosecutor stated: ‘‘So, it then begs the question, since they

got limited information from [Gamble], how much information did they get

from [the defendant]? It makes perfect sense and [is a] logical inference

that you can make that he gave them a lot of information. He was the one

who led them into [Gamble’s] room.’’ (Emphasis added.)

When addressing the defendant’s actions while Gamble was in the shower,

the prosecutor stated: ‘‘[The defendant] came up with the story of this whole

nail polish remover, so, he’s going to make it look like there was nail polish

remover and ashtrays and so forth in the room. Remember, he had the

opportunity while she was burning . . . there was a time when he wasn’t

in that room that leads you to believe what was he doing at the time when

she’s in there besides calling the cousin and saying, how do I get out of

this jam.’’ (Emphasis added.)

Subsequently, when discussing the liquid poured on Gamble, the prosecutor stated: ‘‘[Gamble] didn’t actually see [the defendant] pour it, but she felt

it, it was very wet to her skin, only her left side, on her arm and on her

chest area. And, again, although she didn’t see it, she based that it was

nail polish remover based on the smell. She knows that her mom has used

it in the past. And, obviously, the defendant told her, when we come up

with a story, you got to say it was nail polish remover. And she made the

assumption, obviously, it is nail polish remover.’’ (Emphasis added.)

Finally, in addressing the defendant’s mental state, the prosecutor stated,

‘‘So, with that, and plugging in [the defendant’s] conduct, was he aware of

the substantial and justifiable risk? Of course, he was. Again there was—

of course, he was; he knows it’s flammable. He knows it’s flammable. He

poured it on her and got a flame. He took the time to go find it. The bottle says

it’s flammable. And he poured it on her for a reason.’’ (Emphasis added.)

9 The defendant’s counsel stated the following during closing argument:

‘‘You know, it says right here, warning, extremely, extremely flammable.

Liquid and vapors may ignite. Do not use when smoking.’’

10 The prosecutor’s comments were as follows. At the beginning of his

rebuttal argument, the prosecutor stated: ‘‘See, the problem with [defense

counsel’s] argument is, all these maybes, maybes, maybes, or, or, or, that’s

all speculation. I mean, I can come up here and come up with a bunch of

novel ideas of how it happened. But, again, you have to base your case or
your decision on the evidence. . . . Just to follow up on a few things

relative to [defense counsel’s] argument, and I’m going to stick to the facts.’’

(Emphasis added.) The prosecutor then directly proceeded to address the

defendant’s argument about the motivation for Gamble’s testimony.

As he was finishing his rebuttal, the prosecutor stated: ‘‘If you dropped

a bottle of nail polish, it’s going to be—it’s going to fall away from you. If

you’re sitting down, it’s going to fall in your lap. There’s no injuries on

[Gamble’s] lap. It’s inconceivable what [defense counsel] is suggesting to

you. And all I ask you is that you do use common sense, which you’re

allowed to do in a case like this or in any criminal case.’’ (Emphasis added.)

11 Defense counsel stated as part of the end of his closing argument:

‘‘[Gamble’s] mom had gone to Florida; that’s when [the defendant] was over

at the Gamble house. Did she want to tell her mom that? Did she want to

tell her mom, I was excited, [the defendant] and I were going out, you know,

maybe my nails were a little beat up from being a cashier, and maybe I

wanted to dress up a little bit and maybe I was doing my nails, and maybe

it was something I don’t do normally, and maybe I did spill the nail polish remover.’’

Defense counsel continued: ‘‘So, maybe she did spill the nail polish

remover. Maybe the medical records are correct; maybe she smokes occasionally. Maybe she smokes when her mom’s not around because she’s not

really wanting to tell her mom about her smoking. Maybe she smokes around

[the defendant]. And maybe she did drop the cigarette on herself after

spilling the nail polish remover. Maybe it didn’t require all that much to get

her bra caught on fire.’’

12 The prosecutor’s full comment was as follows. When addressing why

Gamble changed her story, the prosecutor stated, ‘‘It was only her and her

mother living in the house at that time. But her mother testified that she

was fearful. He had access to her keys, meaning [the defendant]. So, is it

reasonable that she was fearful for the mother at the time, fearful for her

own life, didn’t want to swear out a warrant at the time when she’s miles

away from home and the mother’s living alone in Hartford? It makes perfect

sense, ladies and gentlemen.’’ (Emphasis added.)

13 When asking the jury to consider the defendant’s theory that Gamble

was lying, the prosecutor stated, ‘‘As I’m sure you’re aware, and the judge

is going to explain to you, that your verdict must be based on the evidence

presented to you, not speculation, not guesses, but the evidence presented

to you. But for now, I want you to ask yourselves, what evidence was

presented to you that Tashawna Gamble had a motive to falsely accuse

[the defendant] of this situation? What history of Tashawna Gamble was

presented by the state to show she had a motive? What evidence was

presented that Tashawna Gamble had an interest in the outcome of this

case or that she had a prior bias toward this defendant prior to the offense?

You saw her demeanor, you saw her manner while testifying. Did she really

seem like she was a spiteful person that would do this?’’ (Emphasis added.)

14 Defense counsel’s full statement was as follows: ‘‘Ms. Gamble was sitting

right there. You know that she had met with [the prosecutor]. I think it’s

fair to infer that they had gone over to some degree what her testimony

might be. And [the prosecutor] asked her, in relationship to the time she

got out of her ordeal of the hospital, asked her, how did you feel? Do

you remember her answer? I felt betrayed. Oh, that could be because [the

defendant] had lit her on fire.’’

Defense counsel then proceeded to argue that Gamble felt betrayed due

to the alleged infidelity of the defendant.

15 The prosecutor’s full response during rebuttal was as follows: ‘‘Of

course, we met, me and [Gamble], went over what her testimony was going

to be. Okay? Do you think we suggested to her or script[ed] out what to

say in a case like this? She said she was betrayed. Really. She got . . . lit

on fire by her boyfriend, and she felt betrayed. Was she supposed to say,

‘[w]ell, I felt good, I felt happy.’ What else was she supposed to say?’’

(Emphasis added.)

16 We note, briefly, that it is not perfectly clear from the record whether

Gamble testified on cross-examination that she met with the prosecutor, as

asserted by defense counsel in his closing argument. Defense counsel’s

phrasing of the question in stating that ‘‘[y]ou told them earlier when you

were talking with [the prosecutor] after you got out’’ lends itself to two

interpretations: that either Gamble talked to the prosecutor after she got

out of the hospital and stated that she felt betrayed, or she told the prosecutor

earlier during direct examination that when she was discharged she felt

betrayed. As defense counsel endorsed the first interpretation during closing
and has not challenged it on appeal, and because of our unwillingness to

interpret ambiguities in the record in the light most harmful to the state,

we consider the defendant’s interpretation of the ambiguity. See State v.

Ciullo, supra, 314 Conn. 48.