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*********************************************** 
STATE OF CONNECTICUT v. JEFFREY H.*

(AC 38113)

Sheldon, Mullins and Harper, Js.

Syllabus

Convicted, following a jury trial, of three counts of the crime of sexual

assault in the first degree in connection with his alleged sexual abuse

of his daughter, N, the defendant appealed to this court. On the eve of

the defendant’s scheduled trial date, the state discovered that the statute

of limitations on the conduct supporting the charges in the original

information had expired, and the court granted the state’s request for

a continuance. During the continuance, the state requested that the state

police detective assigned to the case, F, conduct an additional interview

with N, and, in that interview, N made allegations against the defendant

of assaults that occurred in a time period that fell within the statute of

limitations. On appeal, the defendant claimed, inter alia, that the trial

court violated his constitutional right to present a defense by preventing

him from cross-examining F relating to whether N made the new allegations against the defendant only upon learning that the statute of limitations barred her original allegations, and by excluding testimony from

S, a physician, and a letter S had written, which included a notation

that N had a history of a previous sexual assault. Held:

1. The trial court did not abuse its discretion or violate the defendant’s

constitutional right to present a defense by excluding testimony concerning the statute of limitations issue that the defendant sought to introduce

through the cross-examination of F; the defendant was permitted to

conduct a sufficient inquiry into his defense theory that N had fabricated

the new allegations, including eliciting testimony from F about the continuance of the originally scheduled trial and F’s involvement in the

case, and evidence that the state had asked F to obtain another statement

from N after the continuance had been granted, and the defendant failed

to cross-examine N regarding her motivations for detailing the abuse

alleged in her latest statement to F or if she changed her allegations

due to pressure from authority figures, and failed to ask F, who could

not testify regarding N’s motivations, whether he had pressured N to

make the new allegations because of a problem with the statute of limitations.

2. The trial court did not abuse its discretion in excluding as irrelevant S’s

testimony and letter, which the defendant sought to admit to rebut

certain consciousness of guilt evidence presented by the state; the foundation for S’s letter was wholly speculative, as S was unable to provide

any insight as to where or from whom he had obtained the information

in the letter about N’s history of sexual abuse, or to which of certain

separate instances of sexual assault involving N the notation referred,

and the defendant failed to demonstrate any open and visible connection

between S’s notation about N’s history of sexual abuse and the state’s

consciousness of guilt evidence.

3. The defendant could not prevail on his claim that the trial court abused

its discretion and deprived him of his right to due process by admitting

into evidence certain out of context interview statements that he made

following a polygraph examination he had taken and failed; that court

properly concluded that the defendant’s statements, which referred to

the fact that he felt sexually aroused by N and that he locked himself

in his bedroom because he was afraid N was going to kill him, qualified

as an exception to the rule against hearsay for an admission by a party

opponent under the applicable provision of the Code of Evidence (§ 8-

3 [1]), as they were relevant and material to show the defendant’s

consciousness of guilt and were not so prejudicial as to risk injustice

as a result of their admission, and the court excluded any statements

made in response to the fact that the defendant had failed the polygraph,

including any statement related to his change of response from his

earlier full denial of any inappropriate behavior.

Argued March 13—officially released September 26, 2017
Procedural History

Substitute information charging the defendant with

three counts of the crime of sexual assault in the first

degree, brought to the Superior Court in the judicial

district of Litchfield and tried to the jury before Marano,

J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

Matthew D. Dyer, with whom, on the brief, was Kristen Mostowy, for the appellant (defendant).

Denise B. Smoker, senior assistant state’s attorney,

with whom, on the brief, were David S. Shepak, state’s

attorney, and Dawn Gallo, supervisory assistant state’s

attorney, for the appellee (state).
Opinion

HARPER, J. The defendant, Jeffrey H., appeals from

the judgment of conviction, rendered after a jury trial,

of three counts of sexual assault in the first degree in

violation of General Statutes § 53a-70 (a) (1). On appeal,

the defendant claims that the trial court (1) abused

its discretion by preventing him from pursuing certain

inquiries on cross-examination, thereby violating his

sixth amendment right to present a defense, and (2)

abused its discretion by admitting into evidence out-ofcontext portions of his interview conducted following

a polygraph examination, in violation of his right to due

process. We affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. The victim, N, is the defendant’s daughter. The

defendant repeatedly sexually assaulted N from the

time she was seven or eight years old until she was

eleven years old. Most of the assaults during this period

took place when N and the defendant went fishing

together. The assaults recommenced when N was

approximately twelve or thirteen years old and continued until she was approximately seventeen years old.

Many of the assaults included threats of violence against

N, her mother, and her sister. On several occasions, the

defendant warned N that if she told anyone about the

assaults, he would kill her, her mother, and her sister.

On occasion, the defendant brandished a weapon,

including a double-barreled shotgun, while committing

an assault.

N did not report the defendant’s conduct until 2009.

At that time, the defendant and N’s mother had

divorced, and N was living with her mother and her

sister in Massachusetts. N kept a journal as part of a

course of psychiatric treatment that she received from

Stefanie Lindahl, a psychiatrist. N documented her

father’s conduct in the journal and shared it with Lindahl. N reported the assaults to the police on July 31,

2009.

Detective William Flynn, a major crimes detective

with the Connecticut State Police and a member of the

child abuse investigative team, was assigned to investigate N’s report. Throughout the investigation, Flynn

interviewed N and took written statements from her.

At the request of the state’s attorney, Flynn used his

police vehicle to drive N as she directed him to various

locations where the abuse had occurred. These trips

prompted N to remember additional incidents of sexual

assault perpetrated by the defendant.

The defendant was arrested on September 29, 2010.

The original information charged the defendant with

offenses that were alleged to have occurred between

March, 1997 and 2000. The state filed a substitute long

form information on March 5, 2015,1 charging the defendant with three counts of sexual assault in the first
degree in violation of § 53a-70 (a) (1) for offenses

occurring in 2002, 2003, and 2004.

On March 31, 2015, the jury found the defendant guilty

of three counts of sexual assault in the first degree.

The court sentenced the defendant to a term of twelve

years of imprisonment and five years of special parole

on each count, to run consecutively, resulting in a total

effective sentence of thirty-six years of imprisonment

and fifteen years of special parole. This appeal followed.

Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court made

two erroneous evidentiary rulings in violation of his

right, under the sixth and fourteenth amendments to

the federal constitution, to present a defense. Specifically, the defendant asserts that the trial court improperly prohibited him from cross-examining Flynn about

a statute of limitations issue that the state had discovered on the eve of the original trial date. In addition,

the defendant argues that the trial court erroneously

barred testimony from Joseph C. Scirica, one of N’s

former treating physicians, regarding a notation in a

2006 letter in his file that N had a ‘‘remarkable history

of a molestation/sexual assault.’’ The state responds

that the trial court properly excluded both the evidence

relating to the statute of limitations and Scirica’s letter.

For the reasons that follow, we agree with the state.

The defendant’s claims implicate both his constitutional right to present a complete defense, as well as

the proper constraints that the rules of evidence impose

on that right. Therefore, our analysis has two parts.

First, we must determine whether the trial court abused

its discretion in making certain evidentiary rulings

regarding the statute of limitations and Scirica’s letter.

Second, if we find that the trial court abused its discretion, we must determine whether that caused a violation

of the defendant’s constitutional rights.

Because our analysis of each of the defendant’s

claims in this part of the opinion relies on the same

legal principals, we first set forth our standard of review

for each of those claims. ‘‘The sixth amendment to

the United States constitution require[s] that criminal

defendants be afforded a meaningful opportunity to

present a complete defense. . . . The defendant’s sixth

amendment right, however, does not require the trial

court to forgo completely restraints on the admissibility

of evidence. . . . Generally, [a defendant] must comply with established rules of procedure and evidence

in exercising his right to present a defense. . . . A

defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant,

its exclusion is proper and the defendant’s right is not

violated.’’ (Footnote omitted; internal quotation marks

omitted.) State v. Wright, 273 Conn. 418, 424, 870 A.2d
1039 (2005). ‘‘Evidence is irrelevant or too remote if

there is such a want of open and visible connection

between the evidentiary and principal facts that, all

things considered, the former is not worthy or safe to be

admitted in the proof of the latter.’’ (Internal quotation

marks omitted.) State v. Davis, 298 Conn. 1, 23, 1 A.3d

76 (2010).

The defendant’s sixth amendment right to present a

defense is satisfied ‘‘when defense counsel is permitted

to expose to the jury the facts from which [the] jurors,

as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the

witness.’’ (Internal quotation marks omitted.) State v.

Daniel B., 164 Conn. App. 318, 341, 137 A.3d 837, cert.

granted on other grounds, 323 Conn. 910, 149 A.3d 495

(2016). ‘‘[R]estrictions on the scope of cross-examination are within the sound discretion of the trial judge

. . . but this discretion comes into play only after the

defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. . . . To establish

an abuse of discretion, [the defendant] must show that

restrictions imposed [on the] cross-examination were

clearly prejudicial.’’ (Citation omitted; internal quotation marks omitted.) Id., 341–42.

‘‘Upon review of a trial court’s decision, we will set

aside an evidentiary ruling only when there has been

a clear abuse of discretion. . . . The trial court has

wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very

reasonable presumption should be made in favor of the

correctness of the court’s ruling in determining whether

there has been an abuse of discretion.’’ (Internal quotation marks omitted.) State v. Santos, 318 Conn. 412,

423, 121 A.3d 697 (2015).

A

The following additional facts and procedural history

are relevant to the defendant’s statute of limitations

claim. The defendant’s trial originally was scheduled to

begin on January 13, 2014. On the eve of trial, however,

the state discovered that the statute of limitations had

expired on the conduct supporting the original charges.

The state sought a continuance, which the trial court

granted. During the continuance, the state’s attorney

requested that Flynn conduct an additional interview

with N. In this interview, N made additional allegations

against the defendant pertaining to more recent sexual

assaults that fell within the statute of limitations. These

new allegations formed the basis for the substitute long

form information that the state filed on March 5, 2015,

and under which the defendant was tried and convicted.

At trial, the defendant attempted to establish, through

cross-examination of Flynn, that the state’s discovery

of the statute of limitations issue prompted N’s new
allegations. The state objected on relevance grounds.

In an offer of proof outside the presence of the jury,

Flynn testified: ‘‘I knew there was an issue with the

statute of limitations, I—that’s about all I knew, there

was a—we didn’t have a large discussion on that.’’ The

trial court declined to allow any questioning regarding

Flynn’s ‘‘awareness of the statute of limitation[s] issue

or that the—that issue demolished the [s]tate’s case

or anything of that nature.’’ The trial court, however,

allowed the defendant to inquire regarding Flynn’s

knowledge of the January, 2014 trial date and continuance, his involvement in trial preparations, and his role

in the taking of an additional statement from N at the

request of the state’s attorney in January, 2014.

On appeal, the defendant argues that the trial court

abused its discretion in excluding testimony regarding

the statute of limitations issue during cross-examination of Flynn, thereby violating the defendant’s sixth

amendment right to present a defense. The defendant

asserts that until the state discovered the statute of

limitations issue, N was ‘‘remarkably consistent on the

ages of the alleged sexual abuse’’ as being between the

ages of eight and eleven. Because the trial court did

not allow Flynn to testify about the statute of limitations

issue, the defendant argues that he was left unable to

explain his defense that N fabricated the newer allegations. As previously noted, to the extent that the defendant challenges an evidentiary ruling of the trial court,

we review the claim for abuse of discretion. We conclude that the trial court did not abuse its discretion

in excluding this evidence and also did not violate the

defendant’s sixth amendment right.

Our resolution of this claim is guided by State v.

Andrews, 102 Conn. App. 819, 927 A.2d 358, cert. denied,

284 Conn. 911, 931 A.2d 932 (2007). In Andrews, the

defendant argued, inter alia, that the trial court violated

his sixth amendment right to present a defense by

improperly limiting his cross-examination of certain

witnesses. Id., 824–25. The defendant was charged with

sexual assault in the first degree, sexual assault in the

second degree and risk of injury to a child. Id., 821. At

trial, the defendant was precluded from introducing

certain evidence regarding details of the defendant’s

sexual relationships with other members of the victim’s

family. Id., 825.

The court in Andrews held that the defendant’s sixth

amendment right to present a defense was not violated.

Id., 827. The court explained that the evidence presented made the jury aware of the defendant’s complicated relationship with the victim’s family and that

members of the victim’s family may have had various

motives for corroborating the victim’s testimony. Id.

The court concluded that the trial court did not abuse

its discretion in precluding additional details of the

defendant’s sexual relationships, as they were not rele-
vant to the issue of whether the defendant had sexually

assaulted the victim. Id.

Applying the analysis in Andrews to the present case,

we conclude that the trial court did not abuse its discretion in excluding testimony of the statute of limitations

issue. The defendant argued that he attempted to present evidence that N changed her story upon learning

that the statute of limitations for the original charges

had expired. Because N ‘‘was remarkably consistent on

the ages of the alleged sexual abuse,’’ the defendant

argued that evidence that the statute of limitations

barred the original charges was necessary to show that

the only reason for the new allegations was to save the

state’s case.

Similar to Andrews, the defendant in this case was

able to conduct sufficient inquiry into his defense theory. Specifically, the defendant elicited testimony from

Flynn about the continuance of the originally scheduled

trial and Flynn’s involvement in the case. In addition,

the defendant presented evidence that the state had

asked Flynn to obtain another statement from N after

the continuance of the original trial.

The defendant attempted to introduce evidence of

the statute of limitations issue through Flynn, not N.

The defendant never cross-examined N regarding her

motivations for detailing the abuse that occurred in

2002, 2003, and 2004, only after she learned that the

statute of limitations issue barred the original charges.

The defendant could have asked N if she was changing

her story due to pressure from authority figures such

as her mother or the state’s attorney, but did not do

so. Instead, the defendant attempted to address this

topic in his cross-examination of Flynn; however, Flynn

could not have testified about N’s motives and the

defendant failed to ask Flynn whether he pressured N

to make new allegations because of the problem with

the statute of limitations. He could not testify, without

speculating, about why N was detailing the later abuse

at that particular time. Therefore, we conclude that the

trial court did not abuse its discretion in refusing to

allow the defendant to cross-examine Flynn on the statute of limitations issue and that this was a reasonable

constraint on the defendant’s sixth amendment right to

present a defense. See State v. Andrews, supra, 102

Conn. App. 826–27.

B

The defendant next claims that the trial court abused

its discretion by excluding Scirica’s letter and testimony. He argues that exclusion of this evidence prevented him from rebutting the state’s consciousness of

guilt argument. The state argues that the trial court did

not abuse its discretion in excluding this evidence. We

agree with the state.

The following facts are relevant to the defendant’s
claim regarding the exclusion of Scirica’s letter. On

April 1, 2007, Lindahl received a letter from the defendant stating, ‘‘I am not a sexual predator, nor am I an

abusive father.’’ The defendant sent this letter two years

prior to N’s initial allegations of sexual assault against

him. Prior to the time the defendant sent this letter, N’s

primary care physician had referred N to Scirica for

treatment in 2006. Following that referral, Scirica sent

a letter to N’s primary care physician with a notation

that N had a ‘‘remarkable history of a molestation/sexual assault.’’

At trial, the defendant attempted to introduce Scirica’s letter into evidence and to have Scirica testify about

his recollection of this history of molestation or sexual

assault. The state objected, arguing that the letter constituted inadmissible hearsay within hearsay. Scirica

testified in an offer of proof regarding the 2006 letter.

Scirica did not have any independent recollection of

the letter, nor could he say whether it was N, her mother,

or someone else who had provided him with N’s medical

history. Scirica noted that, as a mandated reporter, he

would have to report any fresh complaints of sexual

assault, but did not do so in this case. Scirica could not

state with any certainty the origin of the information

about N’s history of sexual assault.

Thereafter, the trial court excluded Scirica’s testimony and letter because the hearsay quality and uncertain source of the information rendered it unreliable

and irrelevant. In its ruling, the trial court noted that

‘‘[t]here is no way to tell through the letter or [Scirica’s]

testimony whether the phrase ‘[a] remarkable history

of a molestation/sexual assault’ refers to the alleged

conduct of the defendant or other allegations of sexual

misconduct that have been presented to the jury,

namely the alleged incidents in school and at Silver

Hill [Hospital].’’2

The defendant argues that the trial court’s refusal to

allow Scirica to testify about the notation in his letter

that N had a ‘‘remarkable history of a molestation/sexual assault’’ prevented him from presenting his defense.

The defendant asserts that this evidence would have

given context to the defendant’s April 1, 2007 letter to

Lindahl, which stated: ‘‘I am not a sexual predator, nor

am I an abusive father.’’ The state used the defendant’s

letter as evidence of his consciousness of guilt, and the

defendant sought to introduce Scirica’s letter as a way

to rebut the state’s argument. The state argues that the

trial court properly excluded the evidence. The state

asserts that the admission of Scirica’s testimony and

letter would have forced the jury to speculate as to

which instance of abuse the notation specifically

referred.

The defendant challenges the trial court’s evidentiary

ruling regarding Scirica’s testimony and letter. As previously discussed, ‘‘we will set aside an evidentiary rul-
ing only when there has been a clear abuse of

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

v. Santos, supra, 318 Conn. 423.

The court’s analysis in State v. Davis, supra, 298

Conn. 1, informs our resolution of this claim. In Davis,

the victim of a shooting testified that he hesitated to

cooperate with the police because he did not want

to jeopardize the close relationship he had with his

girlfriend. Id., 20. During his cross-examination of the

victim, the defendant sought to undermine the victim’s

credibility with evidence that the victim had assaulted

his girlfriend. Id., 20–21. The defendant intended to use

this evidence to show that the victim did not have a

close relationship with his girlfriend, and therefore lied

about why he hesitated to cooperate with the police. Id.,

21. The trial court precluded evidence that the victim

assaulted his girlfriend, finding that it was irrelevant.

Id., 21.

In Davis, our Supreme Court held that it was not

an abuse of the trial court’s discretion to exclude the

evidence because the foundation for the evidence was

‘‘wholly speculative.’’ Id., 24. The defendant in Davis

provided no other evidence that the victim lied about

his reason for not cooperating with the police. See id.

Additionally, the defendant presented no evidence

about when the victim assaulted his girlfriend. Id., 24.

Our Supreme Court reasoned that, if the assault

occurred after the shooting, it would not have had any

bearing on the victim’s decision not to cooperate with

the police on the day of the shooting. Id. The Supreme

Court determined that ‘‘defense counsel failed to demonstrate any open and visible connection between the

alleged fight with [the victim’s girlfriend] and the victim’s decision not to tell [the] police the identities of

his assailants on [the day of the shooting].’’ Id.

In the present case, the defendant attempted to introduce Scirica’s testimony and letter to explain the timing

of the defendant’s April 1, 2007 letter to Lindahl. The

defendant sought to use this evidence from Scirica to

counteract the state’s use of his letter to Lindahl to

prove consciousness of guilt on the assumption that

the defendant’s April 1, 2007 letter to Lindahl appeared

to be spontaneous and not in response to some allegation against him. The defendant argued that the admission of Scirica’s letter would show that, contrary to

the state’s assertions, allegations of sexual assault had

occurred prior to the defendant’s April 1, 2007 letter,

and that the defendant’s letter was a reaction to the

allegations contained in Scirica’s letter.

As we have already discussed, there was no evidence

in the record as to where or from whom Scirica had

obtained the information of N’s ‘‘remarkable history of

a molestation/sexual assault.’’ Furthermore, there is no

evidence in the record indicating which instances of

sexual assault the notation refers to—the incident at
school, the incident at Silver Hill Hospital, or the conduct alleged against the defendant. Because Scirica

could not testify as to the origin of the information or

to which allegations of abuse the notation referred, this

testimony would have caused the jury to stray too far

into the realm of speculation.

Similar to Davis, the foundation for this evidence is

‘‘wholly speculative,’’ as Scirica could not provide any

insight about the source of the notation in his letter or

to what the notation was referring. See State v. Davis,

supra, 298 Conn. 24. If the notation in Scirica’s letter

was not in reference to conduct N alleged against the

defendant, it would have no impact on the defendant’s

decision to write the April 1, 2007 letter to Lindahl. See

id. We agree with the trial court that Scirica’s letter

also could have been referring to the instances of abuse

that N suffered at school or as a patient at Silver Hill

Hospital. Therefore, the defendant ‘‘failed to demonstrate any open and visible connection between’’ Scirica’s notation about N’s ‘‘history of a molestation/sexual

assault’’ and the defendant’s April 1, 2007 letter to Lindahl. See id. Accordingly, the trial court did not abuse

its discretion in excluding Scirica’s testimony or letter

as irrelevant, and the proper application of this evidentiary rule to the defendant’s case was a permissible

restraint on his right to present a defense.

II

The defendant’s second claim on appeal is that the

trial court’s admission of portions of an interview conducted with the defendant following a polygraph examination was an abuse of discretion and violated his right

to due process. Specifically, the defendant argues that

the admitted portions of his interview do not constitute

positive assertions of fact and, therefore, are not admissible under the statement by a party opponent exception

to the hearsay rule. The defendant also argues that the

only way for the jury to have received the proper context of the admitted statements would have been to

admit information regarding the polygraph examination

itself, which is not admissible in Connecticut trial

courts. See State v. Porter, 241 Conn. 57, 94, 698 A.2d 739

(1997). The defendant asserts that without the ability

to present this necessary evidence, the trial court’s

admission of the interview statements deprived him of

his right to due process. We disagree.

The following additional facts are relevant to this

claim. The defendant agreed to submit to a polygraph

examination on September 20, 2010. A three and onehalf hour interview of the defendant followed the exam.

The state’s attorney’s office prepared a transcript of

the interview. The state, through a motion in limine,

sought to admit portions of the interview at trial through

the testimony of Flynn. Specifically, the state sought

to introduce statements related to the following three

areas: (1) that the defendant felt sexually aroused by
N as she was developing; (2) that the defendant locked

his bedroom door at night because he was worried that

N was going to kill him; and (3) that the defendant

changed his response ‘‘from his earlier full denial of

any inappropriate behavior.’’

The trial court ruled that no statements would be

admitted that were made in response to the fact that

the defendant had failed the polygraph. Accordingly,

the trial court excluded the state’s third area of inquiry

regarding the defendant’s change in response to the

allegations. The trial court reasoned that the third area

of inquiry was inadmissible because the likely ‘‘defense

argument is that his response changed because there

was an intervening polygraph . . . .’’

The court allowed Flynn to testify regarding the other

two areas of inquiry. In regard to the defendant feeling

aroused by N, Flynn testified that ‘‘[the defendant] had

stated words to the effect that while she was developing,

uh, he began to feel things of—of becoming aroused

looking at [N], but said ‘that’s my daughter, uh, it’s got

to stop there, it’s my daughter’ or words to that effect.’’

Flynn further testified concerning the defendant’s statements that he feared for his safety: ‘‘He had said words

to the effect that he was locking his bedroom door at

night, because he was afraid [N] was [going to] kill

him.’’ The trial court allowed these statements into evidence as admissions by a party opponent.

In his brief, the defendant argues that even though

the trial court would not admit any statement that was

in response to the failed polygraph examination, ‘‘all

of the defendant’s statements were intertwined with the

failed polygraph results; therefore, all of his statements

would have been in response to the failed polygraph

examination.’’ The state responds that the admitted

statements were material and relevant to show the

defendant’s consciousness of guilt. The defendant

claims that the trial court improperly admitted the interview statements because (1) the statements were not

positive assertions of fact and, therefore, did not fall

under a hearsay exception, and (2) admission of the

out-of-context statements violated the defendant’s right

to due process. We disagree.

We begin by setting forth the standard of review for

determining whether the trial court properly interpreted

§ 8-3 of the Connecticut Code of Evidence, which sets

forth certain hearsay exceptions. ‘‘To the extent a trial

court’s [ruling regarding] admission of evidence is

based on an interpretation of the [Connecticut] Code of

Evidence, our standard of review is plenary.’’ (Internal

quotation marks omitted.) State v. Miller, 121 Conn.

App. 775, 780, 998 A.2d 170, cert. denied, 298 Conn. 902,

3 A.3d 72 (2010). A trial court’s ruling on the applicability of the hearsay rule or its exceptions is a legal determination requiring plenary review. Id. ‘‘We review the

trial court’s decision to admit evidence, if premised on
a correct view of the law, however, for an abuse of

discretion.’’ (Internal quotation marks omitted.) Id. ‘‘To

establish an abuse of discretion, [the defendant] must

show that the restrictions imposed . . . were clearly

prejudicial. . . . If, after reviewing the trial court’s evidentiary rulings, we conclude that the trial court properly excluded the proffered evidence, then the

defendant’s constitutional claims necessarily fail. . . .

If, however, we conclude that the trial court improperly

[admitted] certain evidence, we will proceed to analyze

[w]hether [the limitations the court imposed] . . .

[were] so severe as to violate [the defendant’s rights]

. . . . Our standard of review for this constitutional

inquiry is de novo.’’ (Citations omitted; internal quotation marks omitted.) State v. Santos, supra, 318

Conn. 423.

A

We first address the defendant’s hearsay argument.

Because the defendant challenges the trial court’s interpretation of § 8-3 of the Connecticut Code of Evidence,

our review is plenary. Under § 8-3 (1) of the Connecticut

Code of Evidence, the hearsay rule does not exclude

‘‘[a] statement [that is] being offered against a party

and is (A) the party’s own statement . . . .’’ ‘‘It is an

elementary rule of evidence that an admission of a party

may be entered into evidence as an exception to the

hearsay rule. . . . In the criminal context, an admission is the avowal or acknowledgment of a fact or of

circumstances from which guilt may be inferred, and

only tending to prove the offenses charged, but not

amounting to a confession of guilt . . . .’’ (Internal quotation marks omitted.) State v. Paul B., 143 Conn. App.

691, 711–12, 70 A.3d 1123 (2013), aff’d, 315 Conn. 19,

105 A.3d 130 (2014). ‘‘An admission of a party opponent

need only traverse the low hurdles of relevancy and

materiality to survive an objection to its admission into

evidence. . . . Such an admission is admissible even

if it is conclusory or not based on personal knowledge.

. . . The admission need not even be wholly reliable

or trustworthy.’’ (Citations omitted.) State v. Markeveys, 56 Conn. App. 716, 720, 745 A.2d 212, cert. denied,

252 Conn. 952, 749 A.2d 1203 (2000).

We conclude that the trial court correctly interpreted

§ 8-3 (1) of the Connecticut Code of Evidence in

determining that the interview statements qualify as

admissions by a party opponent. During the interview,

the defendant stated that ‘‘the only thing is . . . when

[N] was developing . . . you feel like something like

she’s sexually aroused me at one point . . . .’’ The

defendant also stated: ‘‘I was locking myself in the bedroom because I thought she was going to kill me.’’

Those were oral assertions that were relevant and

material to the case. See State v. Paul B., supra, 143

Conn. App. 712 (court held that defendant’s statement,

‘‘well if the boys said I did that, then maybe I did . . .
I just don’t remember,’’ was admissible admission by

party opponent in response to sexual assault allegations). Additionally, the defendant’s statements had a

‘‘tendency to make the existence of the fact that the

defendant engaged in the alleged conduct more probable than it would be without [their] admission.’’ Id. It

is true that these statements do not amount to a direct

confession of guilt; however, guilt can be inferred from

the statements. Accordingly, the trial court properly

interpreted § 8-3 (1) of the Connecticut Code of Evidence in finding that the statements fall under the statement by a party opponent exception to the hearsay rule.

B

We now turn to the defendant’s claim that admitting

the interview statements made subsequent to the polygraph examination out of context violated the defendant’s right to due process. We review this claim for

an abuse of discretion.

‘‘Due process is not to be regarded as a giant constitutional vacuum cleaner which sucks up any claims of

error which may occur to a party upon microscopic

examination of the trial record. . . . Indeed, it would

trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because

the label placed on it by a party . . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Kelly,

256 Conn. 23, 49, 770 A.2d 908 (2001). ‘‘Rules for the

admission and exclusion of evidence should be found

offensive to notions of fundamental fairness embodied

in the United States Constitution only when, (1) without

a rational basis they disadvantage the defendant more

severely than they do the [s]tate, or (2) [they] arbitrarily

exclude reliable defensive evidence without achieving

a superior social benefit.’’ (Internal quotation marks

omitted.) State v. Porter, supra, 241 Conn. 134.

‘‘Relevant evidence may be excluded if its probative

value is outweighed by the danger of unfair prejudice

or surprise . . . .’’ Conn. Code Evid. § 4-3. Although all

adverse evidence is damaging to a defendant’s case, ‘‘it

is inadmissible only if it creates undue prejudice so that

it threatens injustice were it to be admitted.’’ (Internal

quotation marks omitted.) State v. Warren, 100 Conn.

App. 407, 419, 919 A.2d 465 (2007). ‘‘Unfair prejudice

occurs where the facts offered may unduly arouse the

[jurors’] emotions, hostility, or sympathy . . . .’’ (Internal quotation marks omitted.) State v. Bellamy, 149

Conn. App. 665, 677, 89 A.3d 927 (2014), aff’d, 323 Conn.

400, 143 A.3d 655 (2016). The prejudicial effect of polygraph evidence greatly exceeds its probative value. See

State v. Porter, supra, 241 Conn. 93. Therefore, polygraph evidence is ‘‘per se inadmissible in all trial court

proceedings in which the rules of evidence apply, and

for all trial purposes, in Connecticut courts.’’ (Footnotes

omitted.) Id., 94.
Generally, evidence of consciousness of guilt must

‘‘have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of

guilt does not render [such] evidence . . . inadmissible but simply constitutes a factor for the jury’s consideration.’’ (Internal quotation marks omitted.) State v.

Coccomo, 302 Conn. 664, 670, 31 A.3d 1012 (2011). In

other words, evidence of consciousness of guilt must

‘‘tend to support a relevant fact even to a slight degree,

so long as not prejudicial or merely cumulative.’’ Id.,

669. ‘‘[I]t is the province of the jury to sort through any

ambiguity in the evidence in order to determine whether

[such evidence] warrants the inference that [the defendant] possessed a guilty conscience.’’ (Internal quotation marks omitted.) Id., 672.

After reviewing the record, we conclude that the trial

court did not abuse its discretion in admitting the interview statements. The statements admitted were certainly relevant, as they had ‘‘a logical tendency to aid

the trier in the determination of an issue.’’ (Internal

quotation marks omitted.) State v. Cerreta, 260 Conn.

251, 261, 796 A.2d 1196 (2002). Although the statements

were adverse to the defendant, they were not so prejudicial as to risk injustice as a result of their admission

into evidence.

Moreover, the trial court took care not to admit any

statement by the defendant that could be explained by

reference to the failed polygraph. For example, the trial

court excluded any statements relating to the defendant’s change of response. Specifically, the trial court

excluded any statements showing that the defendant

did not completely deny the allegations after failing

the polygraph, as the fact that the defendant failed the

polygraph examination could be used to explain such

statements.

Rather the trial court admitted only the statements

that the defendant felt aroused by N and that the defendant feared N was going to kill him as evidence of his

consciousness of guilt. The statements admitted were

relevant to show the defendant’s consciousness of guilt,

and supported that inference at least to ‘‘ ‘a slight

degree.’ ’’ See State v. Coccomo, supra, 302 Conn. 669.

Therefore, the trial court did not abuse its discretion

in admitting the interview statements for the purpose

of showing the defendant’s consciousness of guilt.

Because we conclude that the trial court did not abuse

its discretion in admitting the interview statements, we

conclude that the defendant was not deprived of his

right to due process.

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 assault, we decline to identify the victim or others through

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

1

In the original information, filed on September 29, 2010, the state charged
the defendant with offenses alleged to have occurred between March, 1997

and 2000. At the time trial was scheduled in January, 2014, the state discovered that the statute of limitations period for those offenses had expired,

notwithstanding an amendment to the statute extending the limitations

period for sexual assault. See General Statutes § 54-193a; see also State v.

Brundage, 138 Conn. App. 22, 29, 50 A.3d 396 (2012) (holding that amendment to statute extending limitations period for sexual assault did not apply

retroactively and only applied to offenses occurring after May 22, 2002).

2 N testified at trial that, in addition to the sexual assaults perpetrated by

the defendant, she suffered sexual assaults committed by others at a school

in Sharon and while receiving treatment as a patient at Silver Hill Hospital

in New Canaan.