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STATE OF CONNECTICUT v. TAYLOR G.*
(SC 19222)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued September 16, 2014—officially released March 17, 2015
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Robin S. Schwartz, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Michael Pepper, senior assistant state’s
attorney, for the appellee (state).
Opinion
ZARELLA, J. The defendant, Taylor G., appeals from
the judgments of conviction, rendered after a jury trial,
of one count of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2), one count
of sexual assault in the fourth degree in violation of
General Statutes (Rev. to 2007) § 53a-73a (a) (1) (A),
as amended by Public Acts 2007, No. 07-143, § 2, and
one count of risk of injury to a child in violation of
General Statutes (Rev. to 2007) § 53-21 (a) (2), as
amended by Public Acts 2007, No. 07-143, § 4. The defen-
dant claims that (1) the trial court’s imposition of the
ten year mandatory minimum sentence for the first
degree sexual assault conviction1 and the five year man-
datory minimum sentence for the risk of injury convic-
tion,2 even though the defendant was only fourteen and
fifteen years old when he committed the crimes,3 vio-
lates the requirement under the eighth amendment to
the United States constitution4 that a child offender
receive a proportionate and individualized sentence
from a sentencer empowered to consider and give effect
to the mitigating qualities of the child’s youth, (2) the
state’s expert witness improperly vouched for the credi-
bility of the victim, C, and (3) the trial court improperly
admitted evidence of sexual misconduct committed by
the defendant when he was thirteen years old. The
state responds that (1) the trial court considered the
defendant’s status as a juvenile offender when it
imposed the mandatory minimum sentences, which
were proportional to the crimes, (2) the state’s expert
witness did not vouch for C’s credibility, and (3) the
court properly admitted evidence of the defendant’s
sexual misconduct when he was thirteen years old. We
affirm the judgments of the trial court.
The jury reasonably could have found the following
facts. On November 13, 2009, the defendant was
arrested for sexually assaulting his cousin, C. The
assaults occurred between July 17, 2007, and February,
2009, at the home of the defendant’s mother in the city
of New Haven and at the homes of the defendant’s
relatives in the town of Hamden. At the time of the
assaults, the defendant was fourteen and fifteen years
old, and C was six and seven years old. When C finally
told his mother about the assaults, she immediately
reported them to the police.
Due to the serious nature of the charges, the defen-
dant’s cases were transferred from the juvenile docket
to the regular criminal docket pursuant to General Stat-
utes § 46b-127 (a) (1).5 On June 5, 2012, following a
jury trial, the defendant was found guilty of all three
offenses. On November 2, 2012, while awaiting his sen-
tence, the defendant filed a motion requesting a sen-
tence below the mandatory minimums of ten years and
five years, respectively, for first degree sexual assault
and risk of injury to a child, claiming that imposition of
the mandatory minimums for crimes he had committed
when he was fourteen and fifteen years old would vio-
late the eighth amendment prohibition against cruel and
unusual punishment and the equal protection clause of
the fourteenth amendment to the United States consti-
tution. On that date, the defendant also filed a motion
for a new trial, claiming that the trial court improperly
had admitted the testimony of an expert witness who
impermissibly had vouched for C’s credibility, which
was critical to the outcome of the case. At a hearing
in January, 2013, the trial court considered both
motions. On February 27, 2013, the court denied the
motion for a new trial, and, on March 12, 2013, it denied
the motion to sentence the defendant below the manda-
tory minimums. On March 13, 2013, the court imposed
a total effective sentence of ten years incarceration
followed by three years of special parole.6 This
appeal followed.
I
The defendant first claims that the ten and five year
mandatory minimum sentences for first degree sexual
assault and risk of injury to a child, respectively, when
applied to a juvenile offender, violate the eighth amend-
ment right to an individualized, proportionate sentence
because the sentencing court is unable to consider and
give effect to relevant mitigating evidence of the offend-
er’s youth and immaturity. The state rejects the defen-
dant’s claim on the ground that he overstates the scope
of the governing federal law. We agree with the state.
The following additional facts are relevant to our
resolution of this claim. In its memorandum of decision
on the motion to sentence the defendant below the
mandatory minimums, the court discussed the applica-
ble federal law and concluded that the mandatory mini-
mum sentences in the defendant’s case ‘‘lack[ed] the
severity necessary to be considered constitutionally dis-
proportionate.’’ The court also concluded that the man-
datory minimum sentences did not ‘‘strip the court of
its ability to exercise broad discretion in fashioning an
appropriate sentence.’’ The court explained that, ‘‘[f]or
his three convictions, the defendant faces up to fifty-
five . . . years incarceration. The court may impose
this maximum sentence, or may choose to impose a
sentence considerably more lenient. In making that
determination, the court may consider the mitigating
effects of the defendant’s youth, including . . . a juve-
nile’s diminished culpability and greater prospects for
reform. . . . The court thereby may ensure that the
defendant receives the individualized sentencing con-
sideration to which he is entitled.’’ (Citation omitted;
internal quotation marks omitted.)
During the sentencing hearing on March 3, 2013, the
court expressed reservations as to whether mandatory
minimum sentences were appropriate in a juvenile set-
ting, especially when an offender, like the defendant,
was only fourteen and fifteen years old at the time
he committed the crimes. The court observed that it
appeared that the defendant had experienced abuse as
a child, and that such a child sometimes becomes an
abuser as an adult. The court also noted that, when the
legislature enacted the mandatory minimum sentencing
provisions, it was not contemplating fourteen year old
offenders but, rather, offenders who were significantly
older. The court nonetheless concluded: ‘‘I still feel duty
bound under my role in our criminal justice system to
follow the rules and the sentences the legislature has
enacted. But to the extent that people have asked me
to be as lenient as I can, that’s what I’m being. I’m being
as lenient as I can. I suspect not lenient enough in the
view of those who spoke on [the defendant’s] behalf,
but, to quote what somebody said, I am being as lenient
as I possibly can, but I think that’s adequate punishment
for an individual who commits crimes when he’s four-
teen years of age.’’ The court then sentenced the defen-
dant to the mandatory minimum of ten years incar-
ceration on the first degree sexual assault count fol-
lowed by three years of special parole, one year incar-
ceration on the fourth degree sexual assault count, and
ten years incarceration, five of which were mandatory,
on the risk of injury count. The court ordered that the
latter two sentences be served concurrently with the
first sentence, for a total effective sentence of ten years
incarceration followed by three years of special parole.
The standard of review is well established. ‘‘A chal-
lenge to [t]he constitutionality of a statute presents
a question of law over which our review is plenary.’’
(Internal quotation marks omitted.) Keane v. Fischetti,
300 Conn. 395, 402, 13 A.3d 1089 (2011). With respect
to the governing legal principles, the defendant relies
on Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183,
161 L. Ed. 2d 1 (2005), Graham v. Florida, 560 U.S. 48,
130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), and Miller v.
Alabama, U.S. , 132 S. Ct. 2455, 183 L. Ed. 2d
407 (2012), in which the United States Supreme Court
established a series of rules to be applied in the sentenc-
ing of juvenile offenders.7
In explaining the evolution and development of these
rules, the court in Miller began by noting that ‘‘[t]he
[e]ighth [a]mendment’s prohibition of cruel and unusual
punishment guarantees individuals the right not to be
subjected to excessive sanctions . . . [and] flows from
the basic precept of justice that punishment for crime
should be graduated and proportioned to both the
offender and the offense.’’ (Citation omitted; internal
quotation marks omitted.) Miller v. Alabama, supra,
132 S. Ct. 2463. The court then described ‘‘two strands
of precedent reflecting [its] concern with proportionate
punishment.’’ Id. The first strand consisted of cases
in which the court had ‘‘adopted categorical bans on
sentencing practices based on mismatches between the
culpability of a class of offenders and the severity of a
penalty. . . . Several of the cases in this group . . .
specially focused on juvenile offenders, because of their
lesser culpability. Thus, Roper held that the [e]ighth
[a]mendment bars capital punishment for children, and
Graham concluded that the [a]mendment also prohibits
a sentence of life without the possibility of parole for
a child who committed a nonhomicide offense. Graham
further likened life without parole for juveniles to the
death penalty itself, thereby evoking a second line of
. . . precedents. In those cases, [the court] . . . pro-
hibited mandatory imposition of capital punishment,
requiring that sentencing authorities consider the char-
acteristics of a defendant and the details of his offense
before sentencing him to death.’’ (Citations omitted;
internal quotation marks omitted.) Id., 2463–64. The
court thus concluded that, due to ‘‘the confluence of
these two lines of precedent . . . mandatory life-with-
out-parole sentences for juveniles violate the [e]ighth
[a]mendment.’’ Id., 2464.
The court elaborated that ‘‘Graham and Roper and
[its] individualized sentencing cases alike teach that
in imposing a [s]tate’s harshest penalties, a sentencer
misses too much if he treats every child as an adult. . . .
Mandatory life without parole for a juvenile precludes
consideration of his chronological age and its hallmark
features—among them, immaturity, impetuosity, and
failure to appreciate risks and consequences. It pre-
vents taking into account the family and home environ-
ment that surrounds him—and from which he cannot
usually extricate himself—no matter how brutal or dys-
functional. It neglects the circumstances of the homi-
cide offense, including the extent of his participation
in the conduct and the way familial and peer pressures
may have affected him. Indeed, it ignores that he might
have been charged and convicted of a lesser offense
if not for incompetencies associated with youth—for
example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his inca-
pacity to assist his own attorneys. . . . And finally,
this mandatory punishment disregards the possibility
of rehabilitation even when the circumstances most
suggest it.’’ (Citations omitted.) Id., 2468. The court thus
determined: ‘‘[A] judge or jury must have the opportu-
nity to consider mitigating circumstances before impos-
ing the harshest possible penalty for juveniles. By
requiring that all children convicted of homicide receive
lifetime incarceration without [the] possibility of
parole, regardless of their age and age-related charac-
teristics and the nature of their crimes, the mandatory
sentencing schemes before [the court] violate this prin-
ciple of proportionality, and so the [e]ighth [a]mend-
ment’s ban on cruel and unusual punishment.’’ Id., 2475.
In sum, all three federal cases recognized that,
because the eighth amendment prohibition against
cruel and unusual punishment is based on the principle
that punishment should be graduated and proportioned
to the offender and the offense, courts must consider
mitigating evidence of youth and immaturity when sen-
tencing juvenile offenders. Thus, applying this principle,
the death penalty is a disproportionate sentence for
juvenile offenders, regardless of the crime; see Roper
v. Simmons, supra, 543 U.S. 573–75; life imprisonment
without the possibility of parole is a disproportionate
sentence for juveniles convicted of a nonhomicide
crime; Graham v. Florida, supra, 560 U.S. 74; and man-
datory life imprisonment without the possibility of
parole is a disproportionate sentence for juveniles con-
victed of a homicide, although a sentence of life impris-
onment without the possibility of parole may be deemed
appropriate following consideration of the child’s age-
related characteristics and the circumstances of the
crime. See Miller v. Alabama, supra, 132 S. Ct. 2469;
see also id., 2475 (‘‘Graham, Roper, and [the court’s]
individualized sentencing decisions make clear that a
judge or jury must have the opportunity to consider
mitigating circumstances before imposing the harshest
possible penalty for juveniles. By requiring that all chil-
dren convicted of homicide receive lifetime incarcera-
tion without [the] possibility of parole, regardless of
their age and age-related characteristics and the nature
of their crimes, the mandatory sentencing schemes [at
issue] violate this principle of proportionality . . . .’’
[Emphasis added.]).
In light of this precedent, we disagree with the defen-
dant that his ten and five year mandatory minimum
sentences violated the eighth amendment prohibition
against cruel and unusual punishment. The defendant’s
sentences not only were far less severe than the senten-
ces at issue in Roper, Graham and Miller, but were
consistent with the principle of proportionality at the
heart of the eighth amendment protection because the
mandatory minimum requirements, while limiting the
trial court’s discretion to some degree, still left the
court with broad discretion to fashion an appropriate
sentence that accounted for the defendant’s youth and
immaturity when he committed the crimes.
A
We first agree with the trial court that the defendant’s
ten and five year mandatory minimum sentences lack
the severity of the sentences at issue in Roper, Graham
and Miller. In those cases, the court concluded there
was a constitutional violation because the sentences
consisted of death or life imprisonment without the
possibility of parole, the two most severe punishments
courts are able to impose. See Miller v. Alabama, supra,
132 S. Ct. 2467–68; Graham v. Florida, supra, 560 U.S.
70; Roper v. Simmons, supra, 543 U.S. 568. The differ-
ence between these and other sentences is not merely
quantitative. There is also a qualitative difference. Death
is final and irrevocable, unlike any other sentence. Life
in prison without the possibility of parole is also final
and irrevocable in the sense that it deprives the offender
of all hope of future release and of living a normal
life, even if he or she is successfully rehabilitated and
capable of returning and making a positive contribution
to society. These differences were recognized by the
courts in all three cases, each of which described the
punishment in question as unique in its severity. See
Miller v. Alabama, supra, 2465, 2466, 2468 (repeatedly
characterizing life imprisonment without possibility of
parole as ‘‘harshest’’ possible penalty for juveniles);
Graham v. Florida, supra, 69–70 (stating that ‘‘life with-
out parole is ‘the second most severe penalty permitted
by law’ ’’ and that ‘‘life without parole sentences share
some characteristics with death sentences that are
shared by no other sentences’’ because ‘‘the sentence
alters the offender’s life by a forfeiture that is irrevoca-
ble . . . without giving hope of restoration’’); Roper v.
Simmons, supra, 568 (‘‘[b]ecause the death penalty is
the most severe punishment, the [e]ighth [a]mendment
applies to it with special force’’).
Although the deprivation of liberty for any amount
of time, including a single year, is not insignificant,
Roper, Graham and Miller cannot be read to mean that
all mandatory deprivations of liberty are of potentially
constitutional magnitude. In the present case, the ten
and five year mandatory minimum sentences, under
which the defendant is likely to be released before he
reaches the age of thirty, do not approach what the
court described in Roper, Graham and Miller as the
two harshest penalties. Thus, the defendant’s sentences
do not implicate the factors deemed unacceptable in
Roper, Graham and Miller when those penalties are
imposed on juveniles, namely, the futility of rehabilita-
tion and the permanent deprivation of all hope to
become a productive member of society, both of which
occur when the court is prevented from taking a second
look at the incarcerated offender’s demonstrated
growth and maturity. Rather, the defendant in the pres-
ent case will be able to work toward his rehabilitation
and look forward to release at a relatively young age.
Accordingly, from the standpoint of the severity of the
mandatory ten and five year sentences at issue in this
case, Roper, Graham and Miller provide no support
for the defendant’s claim that the sentences constitute
cruel and unusual punishment when applied to a juve-
nile offender.
B
We also agree with the trial court that the mandatory
minimum sentences, as applied to the defendant, did
not otherwise violate the principle of proportionality
articulated in Roper, Graham and Miller. That is
because, unlike in those cases, the sentencing provi-
sions at issue in the present case left the trial court with
discretion to choose from a wide range of sentencing
possibilities that equaled or exceeded the minimum
term of imprisonment. Although the defendant was sub-
ject to a maximum sentence of fifty-five years incarcera-
tion on all charges, the court stated at the sentencing
hearing that it intended to be as lenient as possible,
considering the defendant’s age at the time he commit-
ted the crimes, and it thus sentenced the defendant to a
total effective sentence of only ten years incarceration,
followed by three years of special parole.
Insofar as the defendant argues that the mandatory
minimum sentencing provisions prevented the court
from fully exercising its discretion, the trial court stated
that it did not view the sentences as ‘‘strip[ping] the
court of its ability to exercise broad discretion in fash-
ioning an appropriate sentence.’’ All mandatory mini-
mum sentences limit, to some extent, the discretion of
courts to craft a sentence that accounts for the special
characteristics of the offender and the offense. Even
mandatory minimum sentences of one or two years limit
the discretion of courts by precluding the imposition of
lesser sentences on offenders regarded as deserving
of a lesser penalty because of compelling mitigating
factors. See, e.g., General Statutes § 53a-61a (d) (requir-
ing mandatory minimum sentence of one year incarcer-
ation for third degree assault of elderly, blind, disabled
or pregnant person, or person with intellectual disabil-
ity); see also General Statutes § 29-35 (a) (requiring
mandatory minimum sentence of one year incarceration
for carrying pistol without permit). The limitations that
mandatory minimum sentences place on a trial court’s
discretion, however, do not automatically constitute an
eighth amendment violation. A mandatory minimum
sentence is, by definition, the least punitive sentence
that may be imposed under a sentencing statute. The
question thus becomes whether the mandatory mini-
mum sentences in the present case were so dispropor-
tionate, despite the court’s decision to impose a total
effective sentence amounting to a fraction of the maxi-
mum possible sentence, that they subjected the defen-
dant to cruel and unusual punishment under Roper,
Graham and Miller. In order to answer this question,
we consider the defendant’s total effective sentence in
light of the crimes of which he was convicted.
The defendant received mandatory minimum senten-
ces of ten years incarceration for sexual assault in the
first degree and five years incarceration for risk of injury
to a child. Under the first degree sexual assault statute,
the defendant was charged with ‘‘engag[ing] in sexual
intercourse with another person and such other person
is under thirteen years of age and the actor is more
than two years older than such person . . . .’’ General
Statutes § 53a-70 (a) (2). Under the risk of injury to a
child statute, the defendant was charged with ‘‘[having]
contact with the intimate parts, as defined in section
53a-65, of a child under the age of sixteen years or
subject[ing] a child under sixteen years of age to contact
with the intimate parts of such person, in a sexual and
indecent manner likely to impair the health or morals
of such child . . . .’’ General Statutes (Rev. to 2007)
§ 53-21 (a) (2), as amended by Public Acts 2007, No.
07-143, § 4. General Statutes § 53a-65 (8) defines ‘‘ ‘[i]nti-
mate parts’ ’’ as ‘‘the genital area or any substance emit-
ted therefrom, groin, anus or any substance emitted
therefrom, inner thighs, buttocks or breasts.’’
In the present case, C testified that the defendant put
his hand down C’s pants and ‘‘pushed [C’s] penis in
. . . [with] [h]is finger,’’ ‘‘put his finger in [C’s] butt,’’
and ‘‘put his hand on [C’s] penis and . . . rub[bed] it.’’
C also testified that the defendant sometimes lay on
top of him when their clothes were on and ‘‘hump[ed]’’
him. The assaults took place over a period of approxi-
mately eighteen or nineteen months when C was six
and seven years old.
Given the gravity of these offenses, the tender age
of C when they occurred, and the likelihood that C will
suffer from the effects of the abuse for the remainder
of his life, the mandatory minimum sentences cannot
be said to be disproportionate under Roper, Graham
and Miller. In Graham, the court made clear that juve-
niles convicted of nonhomicide crimes, such as the
crimes committed by the defendant in the present case,
are not immune from very harsh punishments, including
life in prison, merely because of their youth when they
committed the crimes. The court explained: ‘‘A [s]tate is
not required to guarantee eventual freedom to a juvenile
offender convicted of a nonhomicide crime. What the
[s]tate must do . . . is give defendants . . . some
meaningful opportunity to obtain release based on dem-
onstrated maturity and rehabilitation. . . . It bears
emphasis, however, that while the [e]ighth [a]mend-
ment forbids a [s]tate from imposing a life without
parole sentence on a juvenile nonhomicide offender, it
does not require the [s]tate to release that offender
during his natural life. Those who commit truly horri-
fying crimes as juveniles may turn out to be irredeem-
able, and thus deserving of incarceration for the
duration of their lives. The [e]ighth [a]mendment does
not foreclose the possibility that persons convicted of
nonhomicide crimes committed before adulthood will
remain behind bars for life. It does forbid [s]tates from
making the judgment at the outset that those offenders
never will be fit to reenter society.’’ Graham v. Florida,
supra, 560 U.S. 75.
From this passage, it is clear that the court in Graham
did not disapprove of lengthy sentences for juvenile
offenders convicted of nonhomicide crimes. The court
instead objected to the fact that a sentence of life impris-
onment without the possibility of parole would elimi-
nate at the outset any future opportunity for such
offenders to demonstrate growth and maturity by using
their time in prison to rehabilitate and become produc-
tive members of society. The court in Miller went even
further when it endorsed the imposition of a life sen-
tence without the possibility of parole for juvenile
offenders convicted of homicide, provided the sentenc-
ing court first consider mitigating evidence relating to
the offender’s personal history and the nature of the
crime. See Miller v. Alabama, supra, 132 S. Ct. 2470–72.
In the present case, the trial court’s decision to
impose a sentence for first degree sexual assault that
did not exceed the mandatory minimum and to allow
the sentences for fourth degree sexual assault and risk
of injury to be served concurrently with the sentence
for first degree sexual assault was based on its consider-
ation of the defendant’s relative youth and immaturity
when he committed the crimes, and will guarantee the
defendant’s future release at a relatively young age. The
sentences were therefore consistent with the principles
of individualized sentencing and proportionality articu-
lated in Roper, Graham and Miller, and did not consti-
tute cruel and unusual punishment under the eighth
amendment.8
II
The defendant next claims that Theresa Montelli, the
state’s expert witness on child abuse victims, improp-
erly vouched for C’s credibility. The defendant specifi-
cally claims that Montelli directly and indirectly
vouched for C’s credibility by making substantive use
of C’s out-of-court statements in her testimony regard-
ing the general characteristics of sexually abused chil-
dren. The state responds that Montelli did not vouch,
directly or indirectly, for C’s credibility but, rather, testi-
fied regarding the general characteristics of sexually
abused children, offered no indirect opinions about C,
and never testified that she previously had treated, or
was currently treating, C for any reason. We agree with
the state.
The following additional facts are relevant to our
resolution of this claim. Prior to commencement of the
trial, the state informed the court that it intended to
offer testimony by Montelli relating to her interview
with C and her knowledge of the general characteristics
of sexually abused children, such as delayed reporting
of the abuse and the ways in which a child victim recalls
events. Although defense counsel objected to admission
of this testimony, the court advised counsel that a spe-
cific objection should be made when the testimony was
offered at trial.
Thereafter, C testified that, in the spring of 2007,
when he was five years old and the defendant was
thirteen years old, he was in the care of multiple family
members and legal guardians. During the week, he lived
in Hamden with three sisters, who were close friends
of his mother, and an uncle. On Friday nights, he went
to New Haven to stay with one of his mother’s brothers.
The rest of the weekend he spent with his mother, who
was living in New Haven with her second brother, his
wife and their three sons, one of whom was the
defendant.
During this time, C had a good relationship with the
defendant, thought of him as a big brother, and fre-
quently watched television and played video games with
him. One day, however, when C was visiting his mother
at the defendant’s home, the defendant put his hand
inside C’s pants and touched him sexually, conduct that
continued during other visits. Because C, who was only
five years old at the time, did not understand that this
conduct was ‘‘wrong,’’ he did not tell anyone about it.
In June, 2007, just before C turned six years old, his
mother moved out of the defendant’s home and into
her own apartment in New Haven. After the move, C’s
visiting schedule with his mother continued. During the
week, he lived with the three sisters; on Friday nights,
he went to the home of his mother’s brother; and during
the remainder of the weekend, he visited his mother at
her new apartment.
Even though C’s mother was no longer living with
the defendant’s family, C and the defendant continued
to see each other regularly. Throughout that summer,
the defendant visited the home of the three sisters three
or four times a week, sometimes with his parents to help
with chores, and other times for holidays and family
parties. C also continued to see the defendant at the
home of his mother’s brother on Friday nights and at
his mother’s new apartment. Although C liked spending
time and playing games with the defendant, the defen-
dant continued to sexually abuse C at all three locations
for the next eighteen or nineteen months. Finally, in
February, 2009, when C was seven years old, he told
his mother that the defendant had been inappropriately
touching him and that the defendant had said he would
kill C if C told anybody about what had happened. When
asked why he finally told his mother, C explained: ‘‘I
just couldn’t take it anymore.’’ One week later, Montelli
interviewed C.
When the state was ready to call Montelli as an expert
witness the following day, defense counsel objected by
way of a motion in limine, in which he argued that she
should not be allowed to give testimony regarding her
forensic interview with C and the general characteris-
tics of children who have been sexually abused. Counsel
argued that allowing Montelli to testify about the gen-
eral characteristics of sexually abused children immedi-
ately before showing the jury her video-recorded inter-
view with C would compromise her appearance of
impartiality as an expert witness and bolster C’s allega-
tions that he had been sexually abused by the defendant.
In other words, allowing Montelli to testify for both
purposes would amount to her giving an opinion that
C’s allegations were credible. Counsel thus suggested
that the state call another equally qualified expert wit-
ness who had not conducted a forensic interview with
C to testify regarding the general characteristics of sex-
ually abused children.
The court denied the defendant’s motion in limine,
stating that it was unaware of any legal authority that
would preclude an expert witness from testifying on
both matters. The court stated that defense counsel was
free to object if the state crossed the line in questioning
Montelli and that it could cross-examine Montelli to
reduce the risk of any possible confusion caused by
her testimony. The court also informed counsel that it
would entertain a request to give the jury a limiting
instruction immediately before its deliberations deline-
ating Montelli’s two roles so that the jury would under-
stand that her testimony describing the general char-
acteristics of sexually abused children was not intended
to identify any of C’s particular characteristics.
Thereafter, Montelli testified that she was a clinical
social worker and forensic interviewer for Yale-New
Haven Hospital’s Child Sexual Abuse Clinic (clinic) and
explained that her office functioned as part of an inter-
disciplinary team. She stated that the purpose of foren-
sic interviews was to collect facts in order to understand
the alleged abuse from the child’s perspective, to obtain
information for use in the child’s medical treatment, if
treatment was deemed necessary, and to protect the
child from further trauma by minimizing the number
of times the child was required to speak with others
about the experience.
Montelli next discussed the protocol for interviewing
children brought to the clinic and her understanding of
the general characteristics of children who have been
sexually abused. With respect to the issue of delayed
reporting, she noted that most sexually abused children
do not report the abuse immediately and, in some cases,
never report the abuse, often because they have a close
relationship with the abuser. For example, an abuser
may be a family friend or a family member to whom
the child feels loyalty, such as a mother, father, uncle
or cousin. In some cases, the child may delay disclosure
if the perpetrator is an authority figure who has threat-
ened or intimidated the child. In still other cases, the
child may delay disclosure because of shame or embar-
rassment. Montelli also testified that a child’s delayed
disclosure may be due to a perceived lack of mater-
nal support.
Montelli next discussed the effect of age on delays
in reporting. She explained that children seven years
old or younger may not know initially that what is
happening is wrong because they have little or no under-
standing of sex or sexual abuse. Younger victims also
have a limited understanding of time, and, therefore,
the information they report may be unreliable because
time is an abstract concept and multiple incidents often
blend together. Thus, if a child has been exposed to
more than one incident of sexual abuse, the child may
not be able to recall correctly the number of times the
abuse occurred, the exact locations where it occurred,
and the exact details of the abuse on each occasion.
When queried regarding her forensic interview with
C, Montelli stated that she had conducted the interview
at the clinic, the interview had been recorded, and a
colleague had performed a medical examination of C
following the interview. The jury then was shown the
video recording of the interview. After the video
recording was played, Montelli returned to the stand,
where she testified briefly that she had not seen C since
the interview, had not assisted in preparing C for trial,
and had showed C anatomically correct dolls and dia-
grams during the interview for C to use in describing
the abuse.
On cross-examination, Montelli stated that a delay in
reporting or a limited understanding of the concept of
time did not mean that a child’s allegation of sexual
abuse was truthful. She also agreed with counsel that
some young children have a limited understanding of
sexual activities. In response to a question regarding her
personal knowledge as to whether C had been abused,
Montelli testified: ‘‘My job isn’t to say that allegations
are true or not, or that . . . this child just told me the
truth . . . . I don’t make that determination.’’ Defense
counsel responded: ‘‘So, the answer is that you do not
have any personal knowledge, and that’s the question,
any personal knowledge of whether these [allegations]
are true or not?’’ Montelli replied: ‘‘No. . . . It was only
what I heard from [C].’’ On redirect examination, Mon-
telli reiterated that she did not ‘‘witness anything’’ con-
nected with C’s factual allegations.
During closing argument, defense counsel was the
first to refer to Montelli’s testimony, noting that a ‘‘so-
called expert witness’’ for the state had described the
general characteristics of abused children and then had
appeared in the video-recorded interview with C, which
might have suggested to the jury that what had hap-
pened to C was consistent with being sexually abused.
Counsel directly refuted any such suggestion, however,
by emphasizing Montelli’s testimony that a delay in
disclosure has nothing to do with whether a child is
telling the truth or lying. He also argued that Montelli’s
testimony that children typically wait until the abuser
is out of the house before disclosing the abuse did not
apply in the present case because C did not live in the
same house as the defendant for most of the time the
alleged abuse occurred. Counsel dismissed Montelli’s
testimony that children often fail to timely disclose
abuse if they are threatened by reminding the jury of
C’s testimony that no one ever had threatened him or
told him not to tell anyone about the abuse while it
was occurring, except for the very last time, after which
he reported the abuse to his mother.
In rebuttal, the assistant state’s attorney (prosecutor)
reminded the jury that Montelli was not permitted to
testify as to whether C exhibited any of the general
characteristics of sexually abused children and that she
was not permitted to testify that C was telling the truth
because that issue was for the jury to decide. The prose-
cutor explained that Montelli’s role was to describe, on
the basis of her training and experience, the general
characteristics of sexually abused children. The prose-
cutor then referred to many of the traits Montelli had
discussed, including a child’s concept of time, the
impossibility of accurate recall by very young children
when there have been multiple incidents of abuse, the
reasons for a child’s delay in reporting the abuse, and
the types of relationships that commonly exist between
perpetrators and victims.
Following the jury’s determination that the defendant
was guilty but before he was sentenced, the defendant
filed a motion for a new trial on the ground that Montelli
had vouched for C’s credibility by giving the type of
expert testimony this court deemed inadmissible in
State v. Favoccia, 306 Conn. 770, 780, 51 A.3d 1002
(2012), namely, examples of the behavior of sexual
assault victims closely resembling C’s behavior, thus
directly or indirectly connecting C’s behavior with the
behavioral characteristics of a sexual assault victim.
The defendant argued that Montelli’s testimony that
children (1) often delay disclosing the abuse because
of their close relationship with the abuser, (2) may fail
to disclose or may choose to disclose the abuse when
threats are made, (3) may fail to disclose the abuse
when they feel a lack of maternal support or have a poor
relationship with their mothers, (4) do not understand
what is happening to them or that the abuse is wrong
when they are seven years old or younger, and (5) have
poor concepts of time and thus may incorrectly describe
the number of incidents, where they occurred, and the
details of the abuse when they are seven years old or
younger, was similar to C’s testimony that he (1) was
abused by his cousin, the defendant, (2) did not disclose
the abuse until the defendant threatened to kill him,
(3) did not have a close relationship with his mother
when the abuse occurred, (4) did not understand that
the defendant’s conduct was wrong, and (5) could not
recall the exact number of incidents or the dates on
which they occurred.
In denying the motion, the trial court disagreed with
the defendant’s characterization of the disputed testi-
mony as the type of testimony at issue in Favoccia. The
court observed that Favoccia stands for the proposition
that, ‘‘although expert witnesses may testify about the
general behavioral characteristics of sexual abuse vic-
tims, they cross the line into impermissible vouching
and ultimate issue testimony when they opine that a
particular complainant has exhibited those general
behavioral characteristics.’’ (Internal quotation marks
omitted.) The court then noted that neither the prosecu-
tor, in his questions regarding the general characteris-
tics of abused children, nor Montelli, in her responses,
made any reference to C or sought to compare or link
those general characteristics to C.
On appeal, the defendant renews his claim that Mon-
telli’s testimony regarding the general characteristics
of sexually abused children was similar to the testimony
at issue in Favoccia. The defendant specifically claims,
as he did in his motion for a new trial, that Montelli’s
description of the general characteristics of abused chil-
dren was based on her knowledge of C’s allegations,
thereby improperly linking the two and, in effect, vouch-
ing for C’s credibility. The defendant thus claims that
Montelli’s general testimony directly or indirectly sup-
ported C’s allegations that he was sexually abused by
suggesting that (1) he delayed disclosure because of
his close family relationship with his cousin, his lack
of a strong maternal bond and his lack of knowledge
that the touching was wrong, (2) he disclosed the abuse
only after being threatened, and (3) he could not
describe or distinguish specific incidents or say how
often the abuse occurred because children similar in
age have a poor concept of time and an inability to
connect events and places. The state responds that the
fact that Montelli testified regarding the general charac-
teristics of abused children immediately before the
video-recorded interview was shown to the jury did not
result in improper vouching for C’s credibility because
Montelli never testified about C specifically or linked C
to her other testimony about abused children generally.
We begin with the standard of review and the govern-
ing legal principles. ‘‘The trial court’s ruling on eviden-
tiary matters will be overturned only upon a showing
of a clear abuse of the court’s discretion. . . . The trial
court has wide discretion in ruling on the qualification
of expert witnesses and the admissibility of their opin-
ions. . . . The court’s decision is not to be disturbed
unless [its] discretion has been abused, or the error is
clear and involves a misconception of the law. . . .
Generally, expert testimony is admissible if (1) the wit-
ness has a special skill or knowledge directly applicable
to a matter in issue, (2) that skill or knowledge is not
common to the average person, and (3) the testimony
would be helpful to the court or jury in considering the
issues. . . .
‘‘The determination of the credibility of a witness is
solely the function of the jury. . . . It is the trier of
fact which determines the credibility of witnesses and
the weight to be accorded their testimony. . . . Expert
witnesses cannot be permitted to invade the province of
the jury by testifying as to the credibility of a particular
witness or the truthfulness of a particular witness’
claims. . . . An expert witness ordinarily may not
express an opinion on an ultimate issue of fact, which
must be decided by the trier of fact. . . . Experts can
[however] sometimes give an opinion on an ultimate
issue where the trier, in order to make intelligent find-
ings, needs expert assistance on the precise question
on which it must pass. . . .
‘‘Additionally, in cases that involve allegations of sex-
ual abuse of children, we have held that expert testi-
mony of reactions and behaviors common to victims
of sexual abuse is admissible. . . . Such evidence
assists a jury in its determination of the victim’s credibil-
ity by explaining the typical consequences of the trauma
of sexual abuse on a child. . . . It is not permissible,
however, for an expert to testify as to his opinion of
whether a victim in a particular case is credible or
whether a particular victim’s claims are truthful. . . .
In this regard, we have found expert testimony stating
that a victim’s behavior was generally consistent with
that of a victim of sexual or physical abuse to be admis-
sible, and have distinguished such statements from
expert testimony providing an opinion as to whether a
particular victim had in fact suffered sexual abuse. . . .
‘‘Moreover, we have noted that even indirect asser-
tions by an expert witness regarding the ultimate issue
in a case can serve inappropriately to validate the truth-
fulness of a victim’s testimony. . . . Finally, in cases
in which an expert witness reaches a conclusion on the
ultimate issue in part based upon statements made by
the victim, we note that Connecticut case law has pre-
viously recognized the general rule of law that the
expert is necessarily making a determination about the
victim’s credibility. . . . Such credibility determina-
tions are more properly within the sole province of the
jury.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) State v. Iban C., 275 Conn.
624, 634–36, 881 A.2d 1005 (2005).
In Favoccia, this court considered ‘‘whether an
expert witness’ testimony that the complainant has
exhibited behaviors, which were identified as those
characteristic of [child] sexual assault victims, consti-
tutes inadmissible vouching for the credibility of the
complainant or opinion as to the ultimate issue of
whether the complainant had been sexually assaulted’’;
State v. Favoccia, supra, 306 Conn. 772; and concluded
that it did. Id., 772–73. In that case, the expert witness
was allowed to respond to four questions posed by
the prosecutor relating to whether the complainant’s
disclosure of abuse was accidental or purposeful, as
those concepts are understood in the context of sexual
abuse; id., 782–83; whether the complainant’s disclosure
fit the characteristics of a delayed disclosure by sexual
abuse victims; id., 783–84; whether the complainant’s
respectful behavior toward the abuser was consistent
with the tendency of an abused child to continue to
show respect toward the abuser after the abuse has
occurred; id., 784–85; and whether the complainant fit
the profile of a female abuse victim who attempts to
make herself look unattractive to the abuser as a coping
mechanism. Id., 785.
After considering these facts, we noted that the
expert testimony at issue occupied ‘‘a delicate middle
ground’’; id., 790; between the type of expert testimony
deemed admissible in State v. Spigarolo, 210 Conn. 359,
556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322,
107 L. Ed. 2d 312 (1989), because it sought ‘‘to demon-
strate or explain in general terms the behavioral charac-
teristics of child abuse victims in disclosing alleged
incidents’’; id., 380; and the type of expert testimony
deemed inadmissible in State v. Grenier, 257 Conn. 797,
806, 778 A.2d 159 (2001), because it improperly involved
an opinion as to the complainant’s credibility, and in
State v. Iban C., supra, 275 Conn. 635–36, because it
improperly involved an opinion about whether the com-
plainant had been sexually abused. See State v. Favoc-
cia, supra, 306 Conn. 788–90. We ultimately concluded
that ‘‘our concerns about indirect vouching expressed
in [Grenier] and [Iban C.] require us to limit expert
testimony about the behavioral characteristics of child
sexual assault victims admitted under [Spigarolo] to
that which is stated in general or hypothetical terms,
and to preclude opinion testimony about whether the
specific complainant has exhibited such behaviors.
. . . [T]here is no material distinction between express
testimony that the child has been sexually abused, and
implicit testimony that outlines the unreliable behav-
ioral reactions found with sexually abused victims, fol-
lowed by a list of the complainant’s own behavioral
reactions, that points out that the two are consistent,
and then invites the jury to add up the points to conclude
that the child has been sexually abused. . . . General-
ized testimony is sufficient to provide the jury with
the valuable knowledge, which it is unlikely to have
otherwise, specifically that [child] victims typically fail
to provide complete or consistent disclosures of the
alleged sexual abuse . . . . Thus, we agree with those
authorities observing that more specific testimony
yields returns that increase in prejudice to the defen-
dant as they diminish in value with respect to the edifi-
cation of the jury as to behaviors that might affect the
complainant’s credibility. . . . Accordingly, we . . .
conclude that, although an expert witness may testify
generally about the behavioral characteristics of child
sexual assault victims, an expert witness may not opine
about whether the specific complainant has exhibited
such behaviors.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) Id., 803–805.
In the present case, Montelli’s testimony bears no
resemblance to the testimony at issue in Favoccia. After
testifying about her qualifications, the work of the
clinic, the purpose of forensic interviews, and the proto-
col she followed in conducting them, Montelli testified
regarding the general characteristics of sexually abused
children, including children seven years old or younger,
and the reasons why they may delay disclosure of the
abuse. At no time during this portion of her testimony
did she refer to C or attempt to link him in any way to
her general description of children who are victims of
sexual abuse. Immediately before the video recording
of the forensic interview was played for the jury, she
also testified briefly regarding the circumstances sur-
rounding the interview, and, after the video recording
was shown, she answered several minor questions
regarding interview procedures wholly unrelated to the
content of C’s testimony. Furthermore, when asked
directly on cross-examination if she had any personal
knowledge that C had been sexually abused, Montelli
testified: ‘‘My job isn’t to say that allegations are true
or not, or that . . . this child just told me the truth
. . . . I don’t make that determination.’’ On redirect
examination, Montelli again stated she had not ‘‘wit-
ness[ed] anything’’ with respect to C’s abuse. There-
after, during closing arguments, defense counsel
contended that C did not fit the profile of a sexually
abused child, and the prosecutor reminded the jury that
Montelli could not testify as to whether any of the
examples she had given regarding the behavioral char-
acteristics of sexually abused children applied to C. In
addition, the prosecutor advised that Montelli was not
permitted to testify as to whether C was telling the
truth because that determination was reserved for the
jury. The prosecutor explained that Montelli’s role was
to describe, on the basis of her training and experience,
the general characteristics of sexually abused children.
In light of this record, we agree with the trial court that
the difference between the testimony in this case and
the improper testimony in Favoccia was ‘‘quite stark,’’
because the opinion testimony in Favoccia, unlike the
expert testimony in the present case, was given in
response to specific questions regarding whether the
complainant demonstrated the general characteristics
of a sexually abused child.
The defendant claims that it is the substance of what
is conveyed that matters, and not the use of triggering
words, and that, in answering questions regarding the
general behavioral characteristics of sexual abuse vic-
tims seven years of age and under, Montelli relied on
specific facts and examples she had learned from her
interview with C. The defendant therefore claims that
Montelli’s testimony improperly linked the behavior of
C with that of children who are sexually abused. We
disagree.
The purpose of expert testimony regarding the gen-
eral characteristics of sexually abused children is to
provide information that will assist the jury in evaluat-
ing the credibility of the complainant. As we stated in
Spigarolo, this type ‘‘of expert testimony is admissible
because the consequences of the unique trauma experi-
enced by [child] victims of sexual abuse are matters
beyond the understanding of the average person. . . .
Consequently, expert testimony . . . is of valuable
assistance to the trier in assessing the . . . victim’s
credibility.’’ (Citations omitted.) State v. Spigarolo,
supra, 210 Conn. 378. It is thus to be expected that a
complainant will demonstrate behavior similar or iden-
tical to the behavior of other children who have been
sexually abused. Indeed, if that were not the case,
expert testimony on the subject would have no rele-
vance. More significantly, Montelli, unlike the expert
in Favoccia, never drew a comparison between C and
the characteristics she described as typical of child
sexual abuse victims generally. Accordingly, we con-
clude that the defendant’s claim must fail.
III
The defendant’s final claim is that the trial court
improperly permitted the state to offer evidence of the
defendant’s prior misconduct when he was thirteen
years old because sexual misconduct committed by a
juvenile who is under the age of fourteen cannot be
indicative of a propensity to engage in aberrant and
compulsive criminal sexual behavior. The defendant
specifically claims that children under fourteen years
of age are presumed to be incapable of committing a
crime, and, therefore, in the absence of a threshold
determination that he had the capacity to commit a sex
offense when he was thirteen years old, the state was
barred by the incapacity or infancy doctrine from using
prior sexual misconduct evidence to show propensity
and to prove that he committed sexual abuse after his
fourteenth birthday. The state responds that the trial
court did not admit the prior misconduct evidence to
show propensity and that the defendant did not properly
preserve his claim because there is no indication in the
record that defense counsel objected to admission of
the testimony on propensity grounds. Moreover, even
if defense counsel did object on those grounds, the
state argues that the claim fails on the merits. We agree
with the state that the defendant’s claim is unpreserved.
The following additional facts are relevant to our
resolution of this claim. Prior to commencement of the
trial, an on-the-record conversation occurred between
the parties and the court referring to a lengthy meeting
held in chambers the previous day to discuss several
pending issues. According to the court, the prosecutor
indicated during the meeting that he had changed the
date in the information indicating when the defendant
allegedly began to sexually abuse C from a few months
before the defendant’s fourteenth birthday to the day
after his fourteenth birthday because he could not be
charged as a juvenile for sexual misconduct he commit-
ted before the age of fourteen. The court also stated
for the record that the prosecutor had requested permis-
sion to introduce C’s testimony regarding incidents of
sexual abuse committed before the defendant’s four-
teenth birthday and that defense counsel had objected
to admission of this testimony. The court then
announced that it had decided to overrule defense coun-
sel’s objection.
The court explained: ‘‘The case law does permit, in
these circumstances involving the same victim, and I
think particularly in cases of this nature, where the
cutoff date is so artificial, [C] . . . to describe acts that
took place before the defendant’s fourteenth birthday.
I’m going to permit that, although I have told the state
. . . and the defense that I will be instructing the jury
that they must find [that the charged] conduct took
place after the date alleged in the information. And . . .
that’s a date certain. If . . . the jury cannot find,
beyond a reasonable doubt, that any misconduct
occurred after July, 2007, then the defendant would
have to be found not guilty.’’ The court did not explain
the evidentiary basis on which the prosecutor had relied
in seeking to introduce this testimony, nor did it refer
to the reasons that defense counsel had given for
objecting to the testimony.
At the start of trial, the court informed the jury that
the state was alleging that the defendant had committed
the charged offenses ‘‘between the period of July 17,
2007, and the month of February, 2009, at various loca-
tions . . . .’’ In accordance with the court’s pretrial
decision, however, C testified, without objection by
defense counsel, that he had been sexually abused by
the defendant in the spring of 2007 before the defen-
dant’s fourteenth birthday in July, 2007. To prevent
any possible confusion due to this discrepancy, the
prosecutor later explained during closing arguments
that, although the abuse had begun before the date
indicated in the information, C’s testimony regarding
the prior abuse ‘‘gives you the whole picture, when it
happened, more importantly, how . . . it started. And
it also explains the arbitrary [start date of] July 17’’
contained in the information. In his closing argument,
defense counsel also referred to the prior misconduct
testimony when he twice described the defendant as a
‘‘thirteen year old, fourteen year old boy at the time
. . . .’’
Thereafter, the trial court gave the jury a limiting
instruction regarding the proper use of the prior sexual
misconduct evidence. The court first advised that, to
the extent the jurors might wonder why the information
indicated that the sexual abuse began on July 17, 2007,
the law provides that the ‘‘conduct of a person can
constitute a crime only if it is committed after the per-
son reaches the age of fourteen.’’ The court then contin-
ued: ‘‘So, in this case, you may recall, the parties
stipulated that the defendant was born on July 16, 1993.
He therefore attained the age of fourteen on July 16,
2007. As a result, the state is only permitted to prosecute
the defendant for allegations after that date. That is
why the period alleged in the information starts on
July 17, 2007, because it is the first full day after the
defendant turned fourteen.
‘‘Now, it is true, during the course of the trial, you
may recall, that [C] testified [as] to certain behavior of
the defendant that is alleged to have occurred in the
months before July 17, 2007. And you were allowed
to hear that testimony concerning pre-July 17, 2007
behavior so you could learn of the entirety of the
sequence of events that [C] claims occurred.
‘‘However, insofar as your verdict in this case is con-
cerned, pre-July 17, 2007 conduct cannot be the basis
of a guilty verdict. Rather, as I said earlier, in order for
the state to prove any of the charges in this case, the
state must prove beyond a reasonable doubt that at
least one act that constitutes a crime was committed
by the defendant on or after July 17, 2007.
‘‘Now, if you find, based on the evidence, that the
defendant did engage in prohibited behavior after July
17, 2007, and also before that date, then the defendant
would be guilty based on the post-July 17, 2007 conduct.
However, if you do not find that the state has proven
beyond a reasonable doubt that at least one act consti-
tuting a crime was committed on or after July 17, 2007,
then your verdict on that charge must be not guilty.
‘‘In sum, therefore, while you are entitled to consider
the evidence presented concerning the pre-July 17, 2007
behavior in order better to understand the events that
are alleged to have occurred, your verdict as to each
charge must be based solely upon conduct you find
to have occurred within the specific time period in
the information.’’
We first set forth the legal principles that govern our
resolution of preservation claims. ‘‘[T]he standard for
the preservation of a claim alleging an improper eviden-
tiary 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 apprise 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 author-
ity 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. . . .
Thus, because the sina qua non of preservation is fair
notice to the trial court . . . the determination of
whether a claim has been properly preserved will
depend on a careful review of the record to ascertain
whether the claim on appeal was articulated below with
sufficient clarity to place the trial court on reasonable
notice of that very same claim.’’ (Citations omitted;
internal quotation marks omitted.) State v. Jorge P., 308
Conn. 740, 753–54, 66 A.3d 869 (2013).
In the present case, the meeting in which the prosecu-
tor requested permission to present the prior miscon-
duct testimony was held in chambers, and the court’s
on-the-record description of the meeting the following
day contains no information regarding the basis for the
prosecutor’s request or for defense counsel’s objection.
Moreover, when the court explained its reasons for
overruling the objection, it provided no legal authority
in support of its ruling. It merely stated: ‘‘The case law
does permit, in these circumstances involving the same
victim, and I think particularly in cases of this nature,
where the cutoff date is so artificial, [C] . . . to
describe acts that took place before the defendant’s
fourteenth birthday.’’ At that point, defense counsel
could have articulated the basis for his objection on
the record, but he failed to do so. Defense counsel
also made no further objection to the prior misconduct
testimony when C testified at trial. In fact, defense
counsel referred to the defendant on two occasions
during his closing argument as a thirteen and fourteen
year old boy when the misconduct occurred. Accord-
ingly, our careful review of the record indicates that
counsel failed to articulate a basis for his objection to
the prior misconduct evidence with ‘‘sufficient clarity
to place the trial court on reasonable notice of that
very same claim.’’ State v. Jorge P., supra, 308 Conn. 754.
Moreover, our review of the record indicates that the
prior misconduct testimony was not admitted to show
propensity but to assist the jury in understanding the
meaning of the dates in the information defining the
period of time during which the alleged abuse took
place. See, e.g., State v. Ali, 233 Conn. 403, 427, 660
A.2d 337 (1995) (‘‘[prior] misconduct evidence may be
used to complete the story of the charged crime by
placing it in the context of nearby and nearly contempo-
raneous happenings’’ [internal quotation marks omit-
ted]). The prosecutor contended in his closing argument
that the prior misconduct testimony gave the jury ‘‘the
whole picture, when it happened, more importantly,
how . . . it started. And it also explains the arbitrary
[start date of] July 17’’ contained in the information.
The trial court likewise noted in its final jury instruc-
tions that the prior misconduct testimony would allow
the jury to ‘‘learn of the entirety of the sequence of
events that [C] claims occurred.’’ The court later added:
‘‘[W]hile you are entitled to consider the evidence pre-
sented concerning the pre-July 17, 2007 behavior in
order better to understand the events that are alleged
to have occurred, your verdict as to each charge must
be based solely upon conduct you find to have occurred
within the specific time period in the information.’’ It
is thus apparent that the trial court admitted the prior
misconduct testimony to complete the story of why the
state had alleged July 17, 2007, as the date when the
crimes began, and not to show the defendant’s general
propensity to commit sexual abuse, including his
alleged abuse of C.
Because there is nothing in the record to indicate the
basis for defense counsel’s objection to admission of
the challenged testimony, there is no way of knowing
whether the trial court considered and rejected an argu-
ment by the defense that the testimony was inadmissi-
ble on propensity grounds, as the defendant argues on
appeal. If defense counsel did not object to admission
of the evidence on propensity grounds, the defendant
cannot ask this court to review the trial court’s decision
on those grounds, because such a review would result
in trial by ambuscade. See, e.g., Ferraro v. Ridgefield
European Motors, Inc., 313 Conn. 735, 759, 99 A.3d 1114
(2014) (‘‘[f]or us [t]o review [a] claim, which has been
articulated for the first time on appeal and not before
the trial court, would result in a trial by ambuscade of
the trial judge’’ [internal quotation marks omitted]). If
defense counsel did object on those grounds, he could
have explained his reasoning at several points during
the proceeding, including when the trial court initially
overruled his objection before trial and when C testi-
fied. Because he failed to do so, this court has no author-
ity to review the defendant’s claim because it is
unpreserved.9
The judgments are affirmed.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD, ESPINOSA and ROBINSON, Js., concurred.
* In accordance with our policy of protecting the privacy interests of
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
General Statutes § 53a-70 (b) (3) provides: ‘‘Any person found guilty
under this section shall be sentenced to a term of imprisonment and a period
of special parole pursuant to subsection (b) of section 53a-28 which together
constitute a sentence of at least ten years.’’
2
General Statutes (Rev. to 2007) § 53-21 (a), as amended by Public Acts
2007, No. 07-143, § 4, provides in relevant part: ‘‘[I]f the violation is of
subdivision (2) of this subsection and the victim of the offense is under
thirteen years of age, such person shall be sentenced to a term of imprison-
ment of which five years of the sentence imposed may not be suspended
or reduced by the court.’’
3
We note that the sexual abuse that formed the basis for the defendant’s
convictions occurred over a span of time during which the defendant was
either fourteen or fifteen years old. For purposes of our analysis, we refer
to the defendant as fourteen and fifteen years old.
4
The eighth amendment to the United States constitution provides:
‘‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.’’
The cruel and unusual punishments clause of the eighth amendment is
made applicable to the states through the due process clause of the four-
teenth amendment. E.g., Tuilaepa v. California, 512 U.S. 967, 970, 114 S.
Ct. 2630, 129 L. Ed. 2d 750 (1994).
5
General Statutes § 46b-127 (a) (1) provides in relevant part: ‘‘The court
shall automatically transfer from the docket for juvenile matters to the
regular criminal docket of the Superior Court the case of any child charged
with the commission of . . . a class A or B felony . . . provided such
offense was committed after such child attained the age of fourteen years
and counsel has been appointed for such child if such child is indigent. . . .’’
Although § 46b-127 has been the subject of several amendments since the
alleged crimes in the present case occurred, those amendments have no
bearing on the merits of this appeal. For convenience, we refer to the current
revision of § 46b-127.
6
As we note subsequently in this opinion, the trial court sentenced the
defendant to mandatory terms of incarceration for both the first degree
sexual assault and risk of injury counts but ordered that they be served con-
currently.
7
The term ‘‘juvenile offenders’’ refers in all three cases to offenders who
were under the age of eighteen when they committed their crimes.
8
Justice Eveleigh’s lengthy analysis of the constitutionality of mandatory
minimum sentences for juvenile offenders is deeply flawed. Among other
things, Justice Eveleigh improperly (1) construes Roper, Graham and Miller
as requiring ‘‘individualized, fully discretionary sentencing’’ for all juvenile
offenders, ‘‘including the ability to depart downward from a mandatory
minimum sentence,’’ (2) relies on a recent Iowa case in which the court
concluded that mandatory minimum sentences for juvenile offenders are
impermissible under the Iowa constitution; see State v. Lyle, 854 N.W.2d
378, 400 (Iowa 2014); and (3) attributes views and conclusions to the majority
that find no support in this opinion. We discuss each of these flaws in turn.
We begin with Justice Eveleigh’s repeated claim that Roper, Graham and
Miller require ‘‘individualized, fully discretionary sentencing’’ for all juvenile
offenders because Miller allegedly suggests that ‘‘neither the crime nor its
mandatory minimum punishment should be a factor in a sentencing court’s
ability to comply with the eighth amendment to the United States constitu-
tion . . . .’’ (Emphasis added.) The language in Miller on which Justice
Eveleigh relies provides that ‘‘[n]one of what [Roper and Graham] said
about children—about their distinctive (and transitory) mental traits and
environmental vulnerabilities—is crime specific.’’ Miller v. Alabama, supra,
132 S. Ct. 2465. Justice Eveleigh’s broad interpretation of this language,
however, is unsupportable. The full passage from which it is taken provides:
‘‘Graham’s flat ban on life without parole applied only to nonhomicide
crimes, and the [c]ourt took care to distinguish those offenses from murder,
based on both moral culpability and consequential harm. . . . But none of
what it said about children—about their distinctive (and transitory) mental
traits and environmental vulnerabilities—is crime-specific. Those features
are evident in the same way, and to the same degree, when (as in [Miller])
a botched robbery turns into a killing. So Graham’s reasoning implicates
any life-without-parole sentence imposed on a juvenile, even as its categori-
cal bar relates only to nonhomicide offenses.’’ (Citation omitted; emphasis
added.) Id. From this more complete rendition of the passage, it is clear
that the court in Miller was referring only to the fact that Graham’s reasoning
regarding a sentence of life without the possibility of parole applied equally to
both homicide and nonhomicide offenses committed by juvenile offenders.
There is nothing in the passage suggesting that the court was also referring
to less severe punishments or that trial courts should have unfettered discre-
tion in sentencing juvenile offenders. Accordingly, to the extent Justice
Eveleigh adopts a far more expansive interpretation of Miller, it is utterly
lacking in support, and all other conclusions that flow from his interpretation
are also lacking in support.
Second, although Justice Eveleigh relies extensively on a recent Iowa
Supreme Court decision holding that mandatory minimum sentences for
juvenile offenders are impermissible, he omits the fact that the Iowa court
chose not to decide the defendant’s claim in that case under federal law,
as the defendant originally argued, but, rather, under the Iowa constitution
after requesting additional briefing from the parties on that issue. See State
v. Lyle, supra, 854 N.W.2d 380, 382. Justice Eveleigh also omits the fact that,
in interpreting the Iowa constitution, the Iowa Supreme Court relied in part
on the state legislature’s decision in 2013 to expand the discretion of state
courts in juvenile matters by amending Iowa’s sentencing statutes to remove
mandatory sentencing for juveniles in most cases; id., 387–88; on other
provisions in the Iowa criminal statutes vesting considerable discretion in
courts when deciding juvenile matters; id., 388; and on a trilogy of recent
juvenile cases decided by the court under the Iowa constitution. Id., 395.
Finally, Justice Eveleigh omits the fact that the Iowa court recognized that
‘‘no other court in the nation has held that its constitution or the [f]ederal
[c]onstitution prohibits a statutory schema that prescribes a mandatory
minimum sentence for a juvenile offender’’; (emphasis added) id., 386; and
that ‘‘no . . . national consensus exists against the imposition of mandatory
sentences on juvenile offenders; the practice is common across jurisdic-
tions.’’ (Internal quotation marks omitted.) Id., 387, quoting A. Dutton, com-
ment, ‘‘The Next Frontier of Juvenile Sentencing Reform: Enforcing Miller’s
Individualized Sentencing Requirement Beyond the JLWOP Context,’’ 23
Temp. Pol. & Civ. Rts. L. Rev. 173, 195 (2013). Justice Eveleigh thus ignores
key aspects of the Iowa court’s analysis that render its decision inapplicable
in resolving the defendant’s claim in the present case that his mandatory
minimum sentences were unconstitutional under federal law.
Third, Justice Eveleigh overlooks the fact that the defendant seeks review
of his sentences only under Roper, Graham and Miller, and, therefore,
Justice Eveleigh improperly castigates the majority for failing to consider
unrelated factors that have no bearing on the limited issue before this court.
For example, Justice Eveleigh suggests that the majority should have applied
Alleyne v. United States, U.S. , 133 S. Ct. 2151, 2160, 186 L. Ed. 2d
314 (2013), a sixth amendment case in which the United States Supreme
Court determined, according to Justice Eveleigh, that ‘‘the floor of a sentenc-
ing range mattered just as much to the defendant as the ceiling in giving
effect to the protections afforded by the constitution,’’ even though that
case has no relevance in this eighth amendment appeal involving juvenile
sentencing. Similarly, in claiming that the majority should have compared
the severity of the sentences in the present case with the sentences for
other crimes within this and other jurisdictions, and should have considered
objective indicia of society’s standards, as expressed in legislative enact-
ments and state practice, Justice Eveleigh would have this court go far
beyond the defendant’s limited claim that his mandatory minimum sentences
are unconstitutional under Roper, Graham and Miller.
Justice Eveleigh also greatly simplifies and misconstrues our analysis
when he suggests that the majority believes that the ‘‘dispositive’’ factor
under the three United States Supreme Court cases is the severity of the
punishment and that the rationales of those cases apply with less force
when the sentence imposed is not death or life imprisonment without the
possibility of parole. Contrary to Justice Eveleigh’s view, the majority does
not believe that the severity of the punishment is the dispositive factor
under the three Supreme Court cases but that it is an important factor in
understanding the extent to which the holdings in those cases apply to this
court’s analysis of the mandatory minimum sentences in the defendant’s
case. The majority also does not believe that the three cases apply with
less force when the sentence is not one of the two most extreme punishments
available to the court. The principle of proportionality that lies at the heart
of the three Supreme Court cases applies with equal force to all sentencing
decisions. Because the severity of the sentences was an important consider-
ation in the three Supreme Court cases, however, this court is not required
to reach the same conclusion regarding the proportionality of the defendant’s
far more lenient sentence in the present case.
9
We also reject the defendant’s claim that the trial court committed plain
error in admitting the prior misconduct testimony to show propensity. ‘‘[The
plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary
remedy used by appellate courts to rectify errors committed at trial that,
although unpreserved, are of such monumental proportion that they threaten
to erode our system of justice and work a serious and manifest injustice
on the aggrieved party. [T]he plain error doctrine . . . is not . . . a rule
of reviewability. It is a rule of reversibility. That is, it is a doctrine that this
court invokes in order to rectify a trial court ruling that, although either
not properly preserved or never raised at all in the trial court, nonetheless
requires reversal of the trial court’s judgment, for reasons of policy. . . .
In addition, the plain error doctrine is reserved for truly extraordinary
situations [in which] the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in the judicial proceedings.
. . . Plain error is a doctrine that should be invoked sparingly.’’ (Internal
quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 76–77, 60 A.3d
271 (2013).
In the present case, there is nothing in the record to indicate that the
trial court admitted testimony regarding the defendant’s prior misconduct
to demonstrate propensity, just as there is nothing in the record to indicate
that defense counsel objected to admission of the testimony on that ground.
Rather, the record indicates that the trial court admitted the testimony to
complete the story of why the state had charged the defendant with criminal
conduct that began on the day after his fourteenth birthday. We therefore
conclude that there is no basis for the defendant’s claim that the trial court
committed plain error in admitting the testimony to show the defendant’s
propensity.