author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. JORGE P.

    (AC 29986)
    Bishop, Gruendel and Schaller, Js.

      Argued April 13
    officially released September 28, 2010

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Colleen P. Zingaro, assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

   Opinion

SCHALLER, J.

The defendant, Jorge P., appeals from the judgment of conviction, following a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), seven counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and seven counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly (1) admitted the opinion of an expert witness on the ultimate issue in the case, (2) referred to the complainants as “victims” during the trial, (3) instructed the jury by failing to articulate the factual basis for each of the charges against the defendant and (4) instructed the jury on risk of injury to a child by omitting the limiting judicial gloss of State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988). We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant. The victims, S and G, are sisters who were bom in 1993 and 1997, respectively. At the time of trial in 2007, S was fourteen years old and G was ten years old. Between 2000 and 2002, the victims lived with their parents and younger brother in a second floor apartment in a multifamily home on W Street. The victims’ aunt, C, the defendant, who is C’s boyfriend, their three children, and numerous other family members lived in the first floor apartment. In 2002, the victims, with their parents, moved to a house on W Avenue. In 2003, C and the defendant moved to a house on S Avenue.

While the victims lived at W Street, both of their parents worked. Their mother regularly took them to the defendant’s apartment in the mornings before school started to be watched by C until their school bus came. S would normally watch television in the bedroom of one of her cousins. On many occasions, the defendant would take her to a rarely used interior front staircase of the multifamily home and touch her. Specifically, the defendant would pull down both his and S’s pants, make S face the bottom of the stairs, touch her vagina, and rub his penis on her buttocks and against her vagina. S testified that this would happen “most of the days of the week, but it wasn’t like every single day, but it would happen very often.” Afterward, the defendant would give S toys, stickers or candies so she would not tell anyone about the incidents. S recalled two specific incidents of touching by the defendant on W Street. One incident occurred when the defendant abruptly stopped touching her when he heard the doorknob turn at the top of the stairs. On that occasion the defendant pushed S aside, which caused her to cut her “pinky” on some mirrors that were on the stairs. Another incident occurred in the summer. On that occasion, when S went to the basement to get a scooter, the defendant followed her, and started touching her and engaged in penile-vaginal intercourse with her. Afterward, when S went to the bathroom, she felt something on her leg that was like a “white jelly kind of thing.” She felt a wetness in her pants and, after using the toilet, saw a condom in the toilet.

The defendant continued this behavior after the victims’ family moved out of the apartment on W Street in 2002. S recalled three specific incidents of touching while visiting her cousins at the defendant’s house on S Avenue, where he had moved in 2003. One incident occurred when the defendant picked up S and G to take them to an airport because C was returning from a trip. Before going to the airport, the defendant took them to S Avenue and would not let S leave until she allowed him to touch her. The defendant penetrated her vagina digitally and rubbed his penis on her buttocks. Another incident occurred when the defendant took S and G to a carnival. Before taking them to the carnival, the defendant took them to S Avenue and told S that he would pay for the tickets and tokens only if she allowed him to touch her. During this incident, while playing hide-and-seek, G walked in on the defendant while he was touching S. G testified that she saw the defendant’s hand in S’s pants and knew it was inside her vagina “because it happened to me also.” Another incident occurred when the defendant took S to a WalMart store and allowed her to get a Britney Spears CD and an Eminem poster as late birthday gifts. After making the purchases, the defendant refused to give them to S unless she allowed him to touch her. After the defendant touched S, he gave the gifts to her.

The defendant also touched G at his house on S Avenue approximately ten or fifteen times. G could recall only a few specific incidents. The defendant always gave her toys, stickers or candies after touching her. The first incident occurred when G spent the night at C’s house at S Avenue. The defendant called G into his room and put his finger “a little inside” her vagina. After the incident, the defendant gave G bubblegum.

All of the incidents occurred between 2000 and 2005. S and G first disclosed the defendant’s conduct in 2006. At that time, S was sick with a high fever and stomach ache. S’s mother indicated her intention to take S to the emergency room. G wanted to accompany S and her mother to the emergency room so she could get stickers, but her mother refused. G then responded, “when . . . people touch you, they give you stickers and candies.” After further questioning, both S and G disclosed that the defendant gave them toys, stickers or candies after touching them. In 2007, S’s and G’s guardian ad litem referred them to Veronica Ron-Priola, a physician, for a physical examination, because none had been done previously. A physical examination by Ron-Priola revealed that G had a mild protrusion of the urethra, which was normal, and that S had complete transection of the hymen, which was indicative of blunt trauma penetration into the vagina.

The defendant was charged, by way of a substitute long form information, with one count of sexual assault in the first degree in violation of § 53a-70 (a) (2), six counts of risk of injury to a child in violation of § 53-21 (a) (1) and six counts of risk of injury to a child in violation of § 53-21 (a) (2) in relation to S, and one count of sexual assault in the first degree in violation of § 53a-70 (a) (2), two counts of risk of injury to a child in violation of § 53-21 (a) (1) and two counts of risk of injury to a child in violation of § 53-21 (a) (2) in relation to G. During trial, the state filed an amended information. Following a jury trial, the defendant was convicted on all counts of the information. The court sentenced the defendant to a total effective term of thirty-two years incarceration and lifetime sex offender registration. This appeal followed.

I

On appeal, the defendant claims that the court improperly admitted the opinion of an expert witness on the ultimate issue in the case. Specifically, he argues that he was deprived of a fair trial because the court impermissibly allowed Ron-Priola to testify, both directly and indirectly, as to the ultimate issue of whether S and G were sexually abused. We decline to review this unpreserved evidentiary claim.

Our review of the record reveals that the defendant offered no objection at trial to Ron-Priola’s testimony, which renders this claim unpreserved. 6He requests plain error review. See Practice Book § 60-5. “[T]he plain error doctrine ... is not ... a rule of review-ability. 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 where 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. Strong, 122 Conn. App. 131, 144, 999 A.2d 765 (2010).

This is not an appropriate case for application of the plain error doctrine. Our review of the record does not convince us that any statement made by Ron-Priola that could be construed to relate to the ultimate issue of whether S and G were sexually abused compromised the fairness or integrity of the defendant’s trial or diminished public confidence in our judicial proceedings.

II

The defendant next claims that the court improperly referred to the complainants as “victims” during the trial. Specifically, he argues that his due process rights to a fair trial were violated by the court’s repeated references to S and G as “victims” because the court thereby indicated to the jury the court’s belief that a crime had been committed against S and G and invaded the fact-finding province of the jury. The state agrees that the court’s use of the term “victim” in referring to S and G was not proper but argues that the defendant was not deprived of a fair trial because the court’s use of that term was isolated and sporadic, and the court properly referred to S and G in its charge to the jury. We agree with the state.

The defendant acknowledges that although the court used the word “victim” fourteen times during the trial, he did not object and that this claim is raised for the first time on appeal. The defendant requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). A defendant can prevail on an unpreserved constitutional claim under Golding “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. We conclude that the claim is reviewable because the record is adequate for review and the claim is of constitutional magnitude. See State v. Vilchel, 112 Conn. App. 411, 439-40, 963 A.2d 658 (“a court’s use of the term victim during its charge may deprive a defendant of his due process right to a fair trial”), cert. denied, 291 Conn. 907, 969 A.2d 173 (2009). We further conclude, however, that because the defendant has not demonstrated that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial, the claim fails under Golding’s third prong.

“In State v. Cortes, [84 Conn. App. 70, 86, 851 A.2d 1230 (2004), aff'd, 276 Conn. 241, 885 A.2d 153 (2005)], this court held that the trial court’s pervasive use of the term [victim] in its jury charge deprived the defendant of a fair trial. The defendant in Cortes, convicted of crimes against his former girlfriend, disputed that any crime at all had been committed against the complainant. . . . At trial, the defendant objected to the use of the term victim, to no avail. . . . This court reasoned: In cases in which the fact that a crime has been committed against the complaining witness is not contested, but only the identity of the perpetrator is in dispute, a court’s use of the term victim is not inappropriate. In cases in which the fact that a crime has been committed is contested, and where the court’s use of the term victim has been the subject of an objection and has not been the subject of a subsequent curative instruction, a court’s use of the term may constitute reversible error. The danger in the latter type of case is that the court, having used the term without specifically instructing the jury as to its intention in using the term, might convey to the jury, to whatever slight degree, its belief that a crime has been committed against the complainant. ... As our Supreme Court opined in Cortes, the jury could have drawn only one inference from the trial court’s repeated use of the term, where the very commission of a crime was at issue, namely, that the defendant had committed a crime against the complainant.” (Citations omitted; internal quotation marks omitted.) State v. Vilchel, supra, 112 Conn. App. 440-41.

The defendant argues that the court acted improperly in using the word “victim,” when referring to S and G, fourteen times during trial. We do not consider the court’s use of the term to be pervasive under the circumstances. The trial lasted eight days and yielded approximately 1300 pages of transcript. The court did not regularly use the term “victim” to identify S and G. Specifically, during trial, the court regularly referred to S and G in various ways, including their first names, “the alleged victims,” “the complainants,” and “Jane Doe No. 1” and “Jane Doe No. 2.” Finally, in the majority of the instances in which the court used the term “victim,” the purpose was either to clarify to whom the evidence pertained, S or G, or to indicate that full names were not being used to protect the identities of S and G. Moreover, it is clear from the court’s instruction that the jury’s role was to serve as the finder of fact; the court did not indicate any view that S and G were considered the victims of any crime. Accordingly, the defendant has failed to establish that a constitutional violation clearly exists and clearly deprived him of a fair trial.

Ill

The defendant next claims that the court improperly instructed the jury by failing to articulate the factual basis for each of the charges against him. Specifically, he argues that his due process rights were violated because the court misled the jury by failing to indicate what evidence pertained to each particular count. We are not persuaded.

The defendant concedes that the issue of instructional error was not raised at trial and requests review under the doctrine set forth in State v. Golding, supra, 213 Conn. 239-40. We will review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude.

“In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . . The test is whether the charge as a whole presents the case to the jury so that no injustice will result. . . . We will reverse a conviction only if, in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Citations omitted; internal quotation marks omitted.) State v. Lemoine, 233 Conn. 502, 509, 659 A.2d 1194 (1995). “In assessing whether a jury reasonably could have been misled by the court’s instructions ... it is always proper to consider whether the issues in the case are complicated.” Id., 515.

In Lemoine, “our Supreme Court concluded that review of or comment on the evidence is not constitutionally mandated where the trial court, in the exercise of its sound discretion, determines that such commentary is not necessary and that the jury would be properly instructed and not misled in its absence. ... In reaching that conclusion, the Supreme Court noted that [i]t has long been established that [i]n properly instructing the jury it may or may not be necessary for the court to recall the attention of the jury to the evidence and to the facts which the State and the accused respectively claim to have established, or to comment upon the evidence or express an opinion as to its weight, or as to what verdict would be proper if the jury should find certain facts to have been proved. ... It is not necessarily error to omit all comment upon the bearing and weight of evidence; and generally the extent to which the court should discuss the evidence in submitting a case to the jury is, so long as in criminal cases the jury [is] not directed how to find [its] verdict, within the discretion of the trial judge.” (Citation omitted; internal quotation marks omitted.) State v. Youngs, 97 Conn. App. 348, 366, 904 A.2d 1240, cert. denied, 280 Conn. 930, 909 A.2d 959 (2006).

In the present case, after the close of the evidence and final arguments of counsel, the court instructed the jury as to the law applicable to all of the charges against the defendant. The court then instructed the jury as to the elements that the state must prove as to each of the crimes charged in the information in order to find the defendant guilty. The court’s instructions specified the alleged victims to which the various charges against the defendant applied. Further, the issues presented were, by and large, uncomplicated, and the elements of the crimes with which the defendant was charged and the evidence presented were not difficult to understand. Moreover, the final arguments of counsel thoroughly reviewed the exhibits and testimony given by the witnesses. We conclude that it was not reasonably possible that the jury was misled by the court’s failure to articulate what evidence pertained to each charge during its instructions and that no injustice to the defendant resulted by reason of the court’s instructions. The defendant’s claim fails to satisfy the third prong of Golding.

IV

Finally, the defendant claims that the court improperly instructed the jury on risk of injury to a child by omitting the limiting judicial gloss of State v. Schriver, supra, 207 Conn. 456. Specifically, the defendant argues that the court deprived him of his fundamental rights to a fair trial and due process of law by omitting the limiting judicial gloss from its jury instructions on the offenses of risk of injury to a child in violation of § 53-21 (a) (1).

As a preliminary matter, we set forth the legal principles that govern our review of the defendant’s claim and the applicable standard of review. The defendant failed to object to the instructions at trial and seeks review under State v. Golding, supra, 213 Conn. 239-40. We will review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995) (“an improper jury instruction as to an essential element of the crime charged may result in the violation of the defendant’s due process right to a fair trial, and thus require the reversal of a conviction based upon that instruction”). Resolution of the defendant’s claim turns on whether the court’s instructions concerning the counts of risk of injury to a child in violation of § 53-21 (a) (1), without the limiting judicial gloss of Schriver, amounted to a clear constitutional violation that clearly deprived the defendant of a fair trial. We conclude that the defendant was not deprived of a fair trial.

“If an improper jury instruction is of constitutional magnitude, the burden is on the state to prove harmlessness beyond a reasonable doubt. ... [A] jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error .... When a jury is misinstructed on an essential element of a crime and a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” (Citation omitted; internal quotation marks omitted.) State v. Haywood, 109 Conn. App. 460, 470-71, 952 A.2d 84, cert. denied, 289 Conn. 928, 958 A.2d 161 (2008).

Section 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects 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 . . . shall be guilty of [risk of injury to a child] . . . .”

In the present case, the defendant was charged under both § 53-21 (a) (1) and (2). In Schriver, our Supreme Court held that if the risked impairment is to the child’s morals, § 53-21 proscribes acts performed “in a sexual and indecent manner.” (Internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 64 n.15, 644 A.2d 887 (1994).

The following additional facts are relevant to our resolution of the defendant’s claim. During trial, the state filed an amended long form information charging the defendant with, inter alia, seven counts of risk of injury to a child in violation of § 53-21 (a) (1) and seven counts of risk of injury to a child in violation of § 53-21 (a) (2). The information in relation to § 53-21 (a) (1) states that the defendant “did an act likely to impair the morals of a child under sixteen years of age . . . .” The court instructed the jury on the elements of both § 53-21 (a) (1) and (2). The court did not instruct the jury under § 53-21 (a) (1) that the act had to be in a “sexual and indecent manner . . . .” General Statutes § 53-21 (a) (2). In the court’s instruction under § 53-21 (a) (2), it did instruct the jury that to find the defendant guilty, it had to find that “the contact with the intimate parts took place in a sexual and indecent manner which was likely to impair the health or morals of the child.” On the basis of the state’s theory of the case at trial, the jury reasonably could have found the defendant guilty under § 53-21 (a) (1) for touching S and G in a sexually and indecent manner and for his actions precedent and subsequent to his acts of sexual touching, namely, isolating the victims, purchasing then-silence and preventing their reporting of the abuse.

In this case, the constitutional impropriety, if any, was harmless beyond a reasonable doubt. The seven counts of risk of injury to a child in violation of § 53-21 (a) (1) were associated with the seven counts of risk of injury to a child in violation of § 53-21 (a) (2), in that the conduct that led to the conviction of risk of injury to a child as to § 53-21 (a) (1) also led to the conviction as to § 53-21 (a) (2). Because the jury clearly found under § 53-21 (a) (2) that the defendant touched S and G in a sexual and indecent manner, the court’s failure to instruct the jury that the act under § 53-21 (a) (1) had to be committed in a sexual and indecent maimer was harmless error. There is no evidence in the record to support an inference that the defendant touched S’s or G’s private parts for innocent purposes, such as hygienic or medicinal concerns. Furthermore, overwhelming evidence supports the conclusion that the touching was done for indecent or sexual purposes. We are convinced beyond a reasonable doubt that any error in omitting the Schriver gloss from the jury instructions was harmless. See State v. Kulmac, supra, 230 Conn. 72-74. “Under such circumstances, it would be a waste of judicial resources, and a pedantic exercise, to delve deeply into the constitutional merits of a claim that can appropriately be resolved in accordance with the relevant harmless error analysis.” (Internal quotation marks omitted.) Id., 65. The defendant’s claim therefore fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The conduct charged in this case occurred on various dates between May, 2000 and 2005. We note that § 53-21 was amended in 2000 and 2002. See Public Acts 2000, No. 00-207, § 6; Public Acts 2002, No. 02-138, § 4. Those amendments have no bearing on the merits of this appeal. For convenience, we refer to the current revision of the statute.

       We note that the defendant claimed, in the alternative, that the evidence was insufficient as a matter of law to support the conviction of risk of injury to a child under § 53-21 (a) (1) and that the statute as applied to him is void for vagueness. Given our resolution of the defendant’s fourth claim, we need not address this issue. See footnote 10 of this opinion.

       After the state rested, the defendant made an oral motion for a judgment of acquittal, which the court denied. During argument on the motion, however, the prosecutor stated that she was withdrawing counts ten and eleven of the state’s substitute long form information, which alleged risk of injury to a child as to S, pursuant to § 53-21 (a) (1) and (2), respectively, because there had been no specific testimony to support those charges. See footnote 10 of this opinion. The state thereafter filed a sixteen count amended long form information, charging the defendant, as to S, with one count of sexual assault in the first degree, pursuant to § 53a-70 (a) (2), and five counts each of risk of injury to a child, pursuant to § 53-21 (a) (1) and (2), respectively, and, as to G, with one count of sexual assault in the first degree, pursuant to § 53a-70 (a) (2), and two counts each of risk of injury to a child, pursuant to § 53-21 (a) (1) and (2). The jury found the defendant guilty of all sixteen counts.

       The defendant argues that this claim is preserved properly. Specifically, the defendant argues that before the state’s offer of proof was made, he unsuccessfully objected to Ron-Priola’s testimony in its entirety on the ground that she would be improperly testifying about the ultimate issue and on S’s and G’s veracity by stating that they had been sexually abused, and, therefore, he did not have to continue to object each time Ron-Priola stated her opinion on the ultimate issue. We disagree.

        Although the record demonstrates that the defendant raised concerns to the court that Ron-Priola might be testifying as to the ultimate issue in the case, the defendant essentially argued to the court that an offer of proof was necessary to determine exactly what Ron-Priola would testify about. Contrary to the defendant’s argument on appeal, the record reveals that the defendant did not object to Ron-Priola’s testimony on the ground that she would be improperly testifying on the ultimate issue prior to the offer of proof. Rather, defense counsel was seeking an offer of proof to determine what Ron-Priola would be saying in her testimony. The following colloquy occurred before the court:
      “[Defense Counsel]: Okay. And then that brings me to my final basis . . . my thoughts about the admissibility of the testimony is, this doctor'—I mean, this is why we need an offer of proof, Your Honor. ... I don’t see how a doctor . . . can state to a reasonable—absent the testimony of the victims, given the length of time frame from the alleged disclosure, which is even more removed from the date of the alleged abuse, how this doctor can say, given to a reasonable degree of medical probability, that this child was sexually assaulted by [the defendant]. She can say that the—the fact that the hymen was perforated—
      “The Court: I don’t think that’s what she’s going to say. ... I think that she’s going to say that there’s evidence of sexual abuse and that the victim told me that the source of the abuse was [the defendant].
      “[Defense Counsel]: All right. Well, I, you know, I don’t know ....
      “The Court: I don’t think her testimony is going to be, there is sexual abuse; ergo, it had to be [the defendant].
      “[Defense Counsel]: Well, I don’t know what she can say—that’s why we . . . need the offer of proof .... [I]s it indicative of sexual abuse or is it indicative of intercourse?
      “The Court: Fair question for cross-examination.
      “[Defense Counsel]: I agree.”

       Specifically, the defendant argues that the court improperly referred to S and G as the ‘Victims” during the following instances: (1) the direct examination of Ron-Priola when the court stated that “just so the record remains clear . . . let’s refer to victim one, victim two, [G], [S]”; (2) during a cautionary instruction to the jury about the constancy of accusation evidence, the court used the term “victim” three times when it stated, “You heard testimony, now, from the doctor regarding [S], victim number one, telling her—and now related to you by the doctor, that she had been penetrated by her uncle. I just want to tell you that—that statements such as that are used and admitted solely to corroborate or not corroborate the victim’s testimony in court. These are out-of-court statements considered by you only in determining the weight and the credibility that you’ll give the victim’s testimony that you heard here in court”; (3) in a clarification posed by defense counsel, the court stated, “if you want to show her the document, that's fine, or—or refer to victim one, victim two, [S], [G], so we know who . . . we’re referring to, please”; (4) while instructing a witness, the court stated, “Detective [Rachel] Halas, I know you know this, but whenever referring to the victims, we’re only using first names, and any of the family members of the victims, we’re only using first names. So, no last names of the victims or their family, okay?”; (4) when instructing other witnesses, the court stated, “[t]he victims, we’re only referring to them by first names,” “[a]nd with regard to the victims and their families, we are to use only first names,” and, “no last names of the victims or the victims’ families to be used.”

       We note that our Supreme Court has long “recognized that subdivision (1) of § 53-21 [a] prohibits two different types of behavior: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the [child’s] moral or physical welfare . . . and (2) acts directly perpetrated on the person of the [child] and injurious to his [or her] moral or physical well-being.” (Internal quotation marks omitted.) State v. Nathan J., 294 Conn. 243, 251-52, 982 A.2d 1067 (2009).

       Specifically, in Schriver, “[t]he defendant had been convicted under [the act] prong of § 53-21 after grabbing a thirteen year old girl by the waist and saying, Don’t worry, all I want to do is feel you. . . . The court agreed with the defendant that [o]n its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of the defendant in this case is permitted or prohibited. . . . Standing alone, the phrase any act provides no guidance to potential violators, police officers, or juries .... The court also agreed with the defendant that our prior case law had established a definitive gloss limiting the physical harm proscribed by the statute to instances of blatant physical abuse. . . . The court therefore concluded that the defendant’s conviction must be vacated because his conduct fell short of the conduct at issue in those cases. . . . Recognizing that any effort to conform § 53-21 to the mandate of due process would necessarily entail a wholesale redrafting of the statute . . . which is the exclusive province of the legislature, the court left in place the authoritative judicial gloss prescribed under our case law limiting the type of physical harm prohibited by the act prong of § 53-21 to instances of blatant physical abuse. . . . Other than changes affecting sentencing, the legislature has not substantively amended this provision of the risk of iqjury statute since our decision in Schriver.” (Citations omitted; internal quotation marks omitted.) State v. Nathan J., 294 Conn. 243, 252-53, 982 A.2d 1067 (2009).

       See footnote 4 of this opinion.

       We note that the parties on appeal disagreed on the underlying theory of the case at trial. The defendant argued that the conviction under § 53-21 (a) (1) was based solely on the acts of sexual touching. The state argued that the conviction under § 53-21 (a) (1) was based solely on the acts precedent and subsequent to the acts of sexual touching. “[I]t is well established that [o]ur rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. ... To rule otherwise would permit trial by ambuscade.” (Internal quotation marks omitted.) State v. Scruggs, 279 Conn. 698, 718-19, 905 A.2d 24 (2006).
      After reviewing the trial record, we conclude that the jury was free to find the defendant guilty based on either (1) the acts of sexual touching of S and G, coupled with the acts precedent and subsequent to the acts of sexual touching, or (2) solely based on the acts precedent and subsequent to the acts of sexual touching.

        The clearest indication of the state’s theory of the case occurred during its closing argument to the jury. Specifically, the prosecutor argued: “Now, let me just give you the definition under [subdivision one]. [Subdivision one] is—it's a somewhat broader section. It no t only relates to sexual contact but also relates to the defendant’s actions likely to bring the child into an isolated area where he would have the opportunity to have contact. It is defined (as read), any person who does an act likely to impair the morals of a child under the age of sixteen years of age. So, it’s [a] broader section. You can accomplish it without having contact with the intimate parts, although that did occur here. Bringing the girls down in the basement, or bringing them into a—a room or bringing them to the area under the stairs, each of those things where—where he was trying to isolate them from other people so he had an opportunity to sexually assault them.
      “Giving them candy, and—and telling them not to tell anybody. And, you know, if they had been hurt or injured or had some—any medical things related to that, they’re not telling their mother about that. So, it’s—it’s not just the action of having contact with the intimate parts, but everything that surrounds it. That’s—that’s as it relates to [subdivision one].” (Emphasis added.)
      Furthermore, during argument on the defendant’s motion for a judgment of acquittal after the state rested, the state admitted that a single factual scenario formed the basis of the risk of injury counts pursuant to § 53-21 (a) (1) and (2) and did not assert any distinction between acts precedent and subsequent to the sexual touching with the sexual touching itself. Specifically, the following colloquy occurred between the court and the prosecutor:
      “The Court: ... As I understand it, you can tell me if I’m wrong, on each allegation of risk, the state has charged under (a) (1) and (a) (2). In other words, on claimed factual scenario, two counts of risk, all right. State agree with thatl

      “[The Prosecutor]: Yes, Your Honor.
      “The Court: Okay. So, that means we essentially have eight allegations of risk charged both ways, okay. Now, [I] did a little research overnight, not . . . my questions here are not directed to, if the state could or could not charge under (a) (1) and (a) (2) for one factual scenario. I think the cases are pretty clear that they . . . can do that. . . . Here’s my question. Do you want to address any specific factual scenarios and how they match or don’t match with any of the allegations of risk? . . .
      “[The Prosecutor]: . . . [T]he state is withdrawing counts ten and eleven, as there was not [any] specific testimony with regard to [the incidents alleged to have occurred in] June, 2004. And I . . . will address my comments to the other counts and the factual foundation for them ... in a matter of course.” (Emphasis added.)
      We know that for each count of risk of injury to a child in violation of § 53-21 (a) (1), the jury found that the defendant touched S and G in a sexual and indecent manner based on its having found him guilty under § 53-21 (a) (2), which was based on the same factual scenario. Therefore, we know that the jury did not find the defendant guilty under § 53-21 (a) (1) solely based on his acts precedent and subsequent to the acts of sexual touching. As a result, we do not need to address the defendant’s alternative claim that the evidence, if premised solely on his acts precedent and subsequent to the acts of sexual touching, was insufficient to constitute risk of injury to a child and that the statute as applied to him is void for vagueness.

       We note that in State v. LaBrec, 270 Conn. 548, 561-62 n.1, 854 A.2d 1 (2004) (Borden, J., concurring), Justice Borden, in his concurring opinion, recognized the overlap between Golding’s third and fourth prongs. Justice Borden stated: “I also note what seems to me to be an overlap in most cases—that is, in all cases that do not involve structural constitutional errors—between the second part of Golding’s third prong, namely, that the constitutional violation ‘deprived the defendant of a fair trial’; State v. Golding, supra, 213 Conn. 240; and the fourth prong, namely, that ‘if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ Id. They overlap because they are the same question. In other words, if the error was harmless, then the defendant was not deprived of a fair trial; or, if the defendant was deprived of a fair trial, then the error cannot be considered harmless. Put another way, an appellate court cannot decide whether a defendant was deprived of a fair trial—and, therefore, is entitled to a new, fair trial—without first deciding whether the error was harmless.” State v. LaBrec, supra, 561-62 n.1.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JESUS RUIZ
    (AC 30605)
    Gruendel, Flynn and Dupont, Js.

      Argued May 19
    officially released September 28, 2010

      Carlos E. Candal, special public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Brian K. Sibley, Sr., senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Jesus Ruiz, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). On appeal, the defendant claims that (1) the trial court improperly granted the state’s motion, made pursuant to General Statutes § 54-86g (a), to allow the victim, N, to testify outside the defendant’s presence and to present her testimony to the jury via videotape, and (2) certain remarks made by the prosecutor during closing arguments to the jury were improper and caused substantial prejudice, which denied the defendant a fair trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the issues presented in the defendant’s appeal. The charges against the defendant arise out of two incidents of inappropriate sexual contact he had with N. In January, 2006, the defendant resided with N, N’s mother and N’s older brother, S. N’s younger sister, C, resided with an aunt. At the time of trial, N was eleven years old. The offenses occurred sometime between 2002 and 2003 when N was five or six years old and in the first or second grade. In January, 2006, when N was nine years old, she met with her school guidance counselor and Amy Gionfriddo, an investigative social worker for the department of children and families (department), regarding an unrelated matter. At that time, N reported to Gionfriddo one instance of sexual abuse by the defendant. N went to live with her aunt and C during the investigation of that abuse. In April, 2006, N revealed to Carla Barrows, a department social worker assigned to the family and who conducted regular visits with N at her aunt’s home, a second instance of the defendant’s abuse.

Following a jury trial, the defendant was convicted on all four counts and sentenced to a total effective term of seventeen years imprisonment, suspended after twelve years, with ten years probation. This appeal followed. Additional facts will be set forth as necessary.

I

Regarding the defendant’s first claim, the issue to be resolved is whether, in a criminal prosecution involving the alleged sexual abuse of a child, the victim may testify through the use of a videotape made outside the presence of the defendant if the court has concluded, after an evidentiary hearing, that the state has demonstrated a compelling need to exclude the defendant from the witness room during the videotaping of the victim’s testimony. See State v. Jarzbek, 204 Conn. 683, 684-85, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). In this case, the court found, after a hearing pursuant to § 54-86g, that the state had shown a compelling need for the videotaping procedure used. 6The defendant claims that the court abused its discretion by allowing N to testify outside his presence because the state failed to show, by clear and convincing evidence, that her testimony would have been less rehable if she had been required to testify in his presence. He also claims that this mistake deprived him of his constitutional right to confrontation. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. The state filed a motion to videotape N’s testimony outside the presence of the defendant pursuant to § 54-86g (a) and State v. Jarzbek, supra, 204 Conn. 704-705. The court held a hearing to determine whether N had the ability to testify reliably in the presence of the defendant. Pamela Goldin, a licensed clinical social worker employed by the Child Guidance Clinic for Central Connecticut, Inc., for more than twenty-seven years, testified that she had been treating N for two years. According to Goldin, N has “weak language skills,” “[h]er ability to express herself is below average for her age,” she has poor self-esteem, she becomes “overwhelmed with anxiety” and she is “very easily intimidated.”

Goldin discussed a specific experience with N. She testified that N was distraught that her mother did not believe the accusations that she had made about the defendant. When Goldin and N prepared for a session at which N’s mother also would be present, Goldin testified that N talked at length about all the things she wanted to make sure she told her mother. Goldin testified that N “froze” when the time came for N to speak to her mother. She could not speak and said very little of what she wanted to say, even though she was in a “secure, familiar setting with a number of people there with whom she was comfortable and felt supported.” Goldin testified that this behavior occurred at two separate sessions. She testified that during her work with N, she and N discussed the allegations that N had made against the defendant “so that if she wanted to discuss at length what happened with [the defendant] that she could. And she did tell me a little bit, but she was clearly uncomfortable discussing it at great length. And I didn’t press her.” She stated that testifying in the defendant’s presence, in addition to being a “real hardship for [N]” that would “set her back emotionally,” would cause N to “freeze.” Goldin testified: “I don’t think she’d speak—I think she’d just be totally intimidated.” “I doubt that she would . . . speak in the way that people are going to need her to speak in order to give the information you’ll be asking of her.”

Following the hearing, the court found: “[Goldin] observed [the] child for almost two years. How [N] reacts when this incident would come up. How, when she confronted the mother, she became [mute and] left the room. . . . [K]nowing this young girl for two years, [Goldin testified that N] could not testify truthfully and reliably in front of the defendant. [Goldin gave] her reasons why, based upon her anxiety level, she’d be frightened, she’d be intimidated, her lower level of education, her low level of esteem .... I find [that] the state has met its burden by clear and convincing evidence pursuant to Jarzbek. . . . [Goldin] also said that [N] would be so stressed ... I just can’t take two years of treatment and ignore it. She didn’t meet this young girl a week or a month ago.” Accordingly, the court granted the state’s motion.

Our standard of review is well established. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. ... In evaluating preliminary determinations of the trial court in a criminal case, [t]he evidence will be construed in a way most favorable to sustaining the [determination] ....

“[I]n criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. ... [A] trial court must balance [in a case-by-case analysis] the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question. . . . [The] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. . . . [T]he state bears the burden of proving such compelling need by clear and convincing evidence. . . . The defendant’s right to confrontation is not violated when the state shows, by clear and convincing evidence, that if the victim testified in the defendant’s presence, the victim’s testimony would be less reliable or accurate. See State v. Jarzbek, [supra, 204 Conn. 704-705].” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Gombert, 80 Conn. App. 477, 485-86, 836 A.2d 437 (2003), cert. denied, 267 Conn. 915, 841 A.2d 220 (2004). In summary, “[t]he procedures prescribed by § 54-86g (a) are designed to balance carefully both the defendant’s right to confrontation and the state’s interest in securing rehable testimony from minor victims of sexual assault. See General Statutes § 54-86g (a). We approved of virtually identical procedures in State v. Jarzbek, [supra, 683].” State v. Arroyo, 284 Conn. 597, 620, 935 A.2d 975 (2007).

“The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. [2103, 104] L. Ed. 2d 664 (1989).” (Emphasis in original; internal quotation marks omitted.) In re Giovanni C., 120 Conn. App. 277, 279, 991 A.2d 638 (2010).

The defendant maintains on appeal that the majority of Goldin’s testimony, and indeed the majority of Goldin’s contact with N during the two years that Goldin treated N, involved N’s relationship with her mother, not the defendant, and, therefore, was insufficient to prove by clear and convincing evidence that it was his presence that would intimidate N. On the basis of our review of the record, we conclude that the court reasonably could have concluded that N had weak language skills, poor self-esteem and a high level of anxiety, and that she was very easily intimidated. The court also reasonably could have concluded that it was highly probable that the defendant’s presence would cause N to “freeze” such that she would not speak at all. “The victim’s complete inability to testify destroys any opportunity for reliable or accurate testimony.” State v. Gombert, supra, 80 Conn. App. 486. Viewing the evidence in the light most favorable to sustaining the court’s determination, the court’s decision that the state had shown by clear and convincing evidence that there was a compelling need to videotape N’s testimony outside the defendant’s presence was not clearly erroneous. See id.

The defendant also claims that he was deprived of his constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), which held that testimonial hearsay is admissible against a criminal defendant at trial only if the defendant had a prior opportunity for cross-examination and the witness is unavailable to testify at trial. The defendant does not claim that the court failed to follow the procedures identified in § 54-86g or Jarzbek. Rather, he claims that his right to confrontation requires N to testify in court so that he may confront his accuser face to face and that our Supreme Court should reconsider Jarzbek in light of Crawford.

This claim must fail in light of our Supreme Court’s ruling in State v. Arroyo, supra, 284 Conn. 597, in which the court considered the precise constitutional claims raised by the defendant. The Arroyo court, like the court in Jarzbek, considered the importance of face-to-face confrontation. The court noted that criminal defendants do not have “the absolute right to a face-to-face meeting with witnesses against them at trial”; (emphasis in original; internal quotation marks omitted) id., 622; but, rather, “under appropriate circumstances, the state’s interest in securing reliable testimony from the particular child victim in question may outweigh a defendant’s right of face-to-face confrontation.” Id., 623.

In the present case, the court’s finding that the state showed, by clear and convincing evidence, that if N testified in the defendant’s presence, her testimony would be less reliable or accurate was not clearly erroneous. The defendant’s right to confrontation is not violated when the state makes that showing. A review of the record reveals that defense counsel had ample opportunity to cross-examine N. We note that the defendant does not claim that the court failed to follow the procedures identified in § 54-86g or Jarzbek. We conclude that the defendant’s right to confrontation was not violated.

II

Regarding the defendant’s second claim, the issue to be resolved is whether certain remarks made by the prosecutor during his rebuttal to the defendant’s closing argument to the jury deprived the defendant of due process and a fair trial. Specifically, the defendant claims that the prosecutor (1) impermissibly expressed his opinion as to N’s credibility and (2) improperly appealed to the emotions of the jury. The state concedes that some of the remarks were improper but maintains that they did not deprive the defendant of due process or a fair trial. We agree with the state.

Throughout his closing argument, the defendant attacked the credibility of N, in part by repeatedly stating or implying that N had admitted fabricating an unrelated incident involving her brother and a knife, the reason for which N initially met with Gionfriddo. The defendant argued that the timing of the disclosures was suspect. Specifically, he argued that the second disclosure was designed to allow N to remain with her aunt. In his rebuttal, the prosecutor made a number of statements in which he implied that N was credible because professionals who testified believed she was credible. Specifically, he stated that N would have had to have been a genius to be able to “get by” the professionals in the department and others. The prosecutor also made two statements that the defendant characterizes as improperly appealing to the emotions of the jury.

“We begin our analysis by setting forth the applicable law regarding claims of prosecutorial impropriety. In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. ... In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry. . . .

“[I]t is not the prosecutor’s conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole. . . . We are mindful throughout this inquiry, however, of the unique responsibilities of the prosecutor in our judicial system. A prosecutor is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. ... By reason of his [or her] office, [the prosecutor] usually exercises great influence upon jurors. [The prosecutor’s] conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he [or she] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. If the accused be guilty, he [or she] should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe.” (Citations omitted; internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 32-33, 917 A.2d 978 (2007).

A

The Claims of Prosecutorial Impropriety

The first step in our analysis is to determine whether prosecutorial impropriety occurred. We first address the defendant’s claim that the state impermissibly expressed its opinion as to N’s credibility. “It is well settled that [a] prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. ... Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. ... It is not, however, improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . . . .” (Internal quotation marks omitted.) State v. Tomas D., 296 Conn. 476, 512, 995 A.2d 583 (2010).

The state concedes that through a number of statements made during its rebuttal argument to the jury, the prosecutor improperly “implied that the jury should believe [N] because other professionals who had testified had believed her.” Given the state’s concession, we must consider the impact of these statements on the fairness of the defendant’s trial. See part II B of this opinion.

We next address the defendant’s claim that the state improperly appealed to the emotions of the jury. “[A] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they have the effect of diverting the [jurors’] attention from their duty to decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Internal quotation marks omitted.) State v. Bell, 283 Conn. 748, 773, 931 A.2d 198 (2007). The defendant refers to two statements the state made during its rebuttal to his closing argument that he claims improperly appealed to the emotions of the jury.

The first statement the defendant claims improperly appealed to the emotions of the jury was: “Talk about messages, the messages aren’t to be sent anywhere other than this message: we have children, we teach them ways to do stuff, and that’s to protect themselves. We teach them the way to do that. Did [N] do that in this case? Yes, she did.” The defendant maintains that this remark improperly “urged the jurors ... to decide the case on their sympathy for the victim . . . rather than the evidence .... [I]t suggested that a message should be sent, and that message is that ‘we have children’ and they should be protected, and the only way to do that is by convicting the defendant.” Whether N had received the proper messages from her teachings in order to protect herself is difficult to convert or to equate to a statement that the defendant must be convicted because N properly had protected herself. We conclude that the defendant’s contention is not a reasonable reading of the prosecutor’s remark in the context in which it was made. We conclude that the first statement was not improper.

The second statement that the defendant claims appealed to the emotions of the jury was: “You don’t want to believe that good people do bad things. Look at the priests. When you first hear that, [it is] so commonplace now; you hear it, and it almost becomes a joke—unless you’re one of the people that he was touching, it is no longer a joke anymore.” The state concedes, and we agree, that this second statement was improper. Accordingly, we must also consider the impact of this statement on the fairness of the defendant’s trial.

B

Impact on the Fairness of the Defendant’s Trial

We now apply the well established six factor analysis from State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), to determine whether the state has established beyond a reasonable doubt that the prosecutorial improprieties did not deprive the defendant of a fair trial. “Under the well established analysis of State v. Williams, [supra, 540], we consider: (1) the extent to which the [impropriety] was invited by defense conduct or argument; (2) the severity of the [impropriety]; (3) the frequency of the [impropriety]; (4) the centrality of the [impropriety] to the critical issues in the case; (5) the strength of the curative measures adopted; and (6) the strength of the state’s case.” (Internal quotation marks omitted.) State v. Tomas D., supra, 296 Conn. 513-14 n.43. “This analysis requires us to view the prosecutor’s comments in the context of the entire trial and determine whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Internal quotation marks omitted.) Id., 514.

We will first examine the statements in which the prosecutor improperly implied that N was credible. With respect to the first Williams factor, the state maintains that the statements regarding the defendant’s credibility were invited by defense counsel. The state properly challenged defense counsel’s characterization of N’s testimony regarding the incident involving her brother and a knife. See footnote 11 of this opinion. It was in that context that the state made the comments regarding N needing to be an “intellectual genius” to have concocted her story and fooled a number of trained professionals. We conclude that the remarks that implied that N was credible because other professionals who testified believed her, though improper, were invited by defense counsel's closing argument. See footnote 10 of this opinion.

With respect to the second factor, namely, the severity of the impropriety, “it is well settled that a defendant’s failure to object or to seek curative measures at trial supports the state’s contention that the impropriety was not severe. . . . Defense counsel’s failure to object at trial is, however, not by itself fatal to a defendant’s claim .... Thus, the apparent lack of severity with respect to the impropriety is counterbalanced in part by the third Williams factor, namely, the frequency of the [impropriety] . . . .” (Citation omitted; internal quotation marks omitted.) State v. Tomas D., supra, 296 Conn. 514. The defendant maintains that there were “at least ten” improper statements. See footnote 11 of this opinion. If we accept that count as accurate, the improper remarks were frequent during the rebuttal argument, which consisted of approximately nine pages of transcripts. Cf. State v. Jordan, 117 Conn. App. 160, 169, 978 A.2d 150 (fourteen instances over course of eighteen pages of transcripts were frequent), cert. denied, 294 Conn. 904, 982 A.2d 648 (2009). We note, however, that the improper remarks were isolated to a discrete part of the trial, the prosecutor’s rebuttal argument. Cf. State v. Warholic, 278 Conn. 354, 398, 897 A.2d 569 (2006) (“the instances of prosecutorial [impropriety] were not isolated because they occurred during both the cross-examination of the defendant and the prosecutor’s closing and rebuttal arguments”).

With respect to the fourth Williams factor, the centrality of the impropriety to the critical issues in the case, it supports the defendant’s claim, “as comments implying that the victim testified truthfully or otherwise supporting her credibility are particularly significant, as without independent physical evidence to prove that the defendant had sexually assaulted [the victim], or even that [the victim] had been sexually assaulted at all, the significance of the [prosecutor’s] improper conduct increases considerably.” (Citation omitted; internal quotation marks omitted.) State v. Tomas D., supra, 296 Conn. 515.

With respect to the fifth Williams factor, namely, the strength of the curative measures adopted, the state concedes that the court did not employ any corrective measures directed specifically at the improper remarks. The state refers to the court’s general instruction to the jury in which the court instructed that counsel's arguments were not evidence and that only the jury’s assessment of credibility mattered. “Although a general instruction does not have the same curative effect as a charge directed at a specific impropriety . . . when a defendant . . . fails to object at trial, he bears much of the responsibility for the fact that these claimed improprieties went uncured, especially because defense counsel’s failure to object to the prosecutor’s argument[s] . . . when [they were] made suggests that defense counsel did not believe that [they were] unfair in light of the record of the case at the time.” (Citation omitted; internal quotation marks omitted.) Id., 515-16.

Finally, we consider the sixth Williams factor, namely, the strength of the state’s case. The defendant argues that N’s testimony was neither corroborated by physical evidence nor by independent eyewitnesses and was therefore weak. The state argues that none of N’s allegations were contradicted by evidence presented at trial and that testimony from her counselor, from the department workers and from a forensic interviewer employed by Yale-New Haven Hospital in its child sexual abuse clinic demonstrate that N’s allegations were consistent. Our Supreme Court has stated that “a child sexual abuse case lacking conclusive physical evidence, when the prosecution’s case rests on the credibility of the victim ... is not particularly strong . . . .” (Internal quotation marks omitted.) State v. Warholic, supra, 278 Conn. 397. It, however, has never stated that “the state’s evidence must have been overwhelming in order to support a conclusion that prosecutorial [impropriety] did not deprive the defendant of a fair trial.” (Internal quotation marks omitted.) State v. Tomas D., supra, 296 Conn. 516.

Having reviewed the Williams factors, we conclude that although the challenged remarks were central to the issue of N’s credibility, they were cured by the court’s general instructions. Moreover, the remarks were invited by defense counsel’s closing argument and confined to the prosecutor’s rebuttal argument, and the defendant’s failure to seek further curative measures at trial indicates that they lacked severity. Accordingly, we conclude that this prosecutorial impropriety did not deprive the defendant of a fair trial.

We next apply the Williams factors to the comment that the prosecutor made regarding priests, which improperly appealed to the emotions of the jury. As to the first factor, the state concedes that the defendant did not invite this impropriety. As to the second factor, the comment was not severe because it did not pertain to the critical issues in this case nor did the defendant object to it at the time of trial. The comment was a single passing comment confined to the state’s rebuttal argument and was therefore infrequent under the third Williams factor. As to the fourth factor, the comment was not central to the critical issues in the case because it did not pertain to the issue of N’s credibility or to whether the defendant was guilty as charged. As to the fifth factor, the state concedes that no curative measures were adopted, but, because the defendant did not object to this comment at trial, he bears much of the responsibility for the fact that this claimed impropriety went uncured. See id., 515-16. As to the sixth factor, we conclude, after an examination of the entire record, that the strength of the state’s case was sufficient for a finding of guilty beyond a reasonable doubt, despite the improper remark. See id., 516-17.

Having reviewed all of the Williams factors with respect to both the improper remarks that implied that N was credible and the comment regarding priests, which improperly appealed to the emotions of the jury, we conclude that the state has demonstrated, beyond a reasonable doubt, the reasonable likelihood that the jury’s verdict would not have been different absent the prosecutorial improprieties.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       The unrelated matter involved a nonsexual incident between N and S concerning a knife and did not involve the defendant.

       N and C, after spending time in foster care, eventually went to live with a different aunt, who obtained legal custody of N in August, 2007.

       In State v. Jarzbek, supra, 204 Conn. 704, our Supreme Court held that “in criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible.” (Internal quotation marks omitted.) In re Tayler F., 296 Conn. 524, 540, 995 A.2d 611 (2010).

       This conclusion is a factual determination of the trial court and is not within the purview of this court; see State v. Jarzbek, supra, 204 Conn. 706; unless there has been an abuse of discretion in the court’s ruling; see State v. Bronson, 258 Conn. 42, 49, 779 A.2d 95 (2001) (trial court abused discretion when it denied request to appoint expert to examine child prior to Jarzbek hearing); or a factual finding which is clearly erroneous. See Auerbach v. Auerbach, 113 Conn. App. 318, 327, 966 A.2d 292 (“[a] factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made” [internal quotation marks omitted]), cert. denied, 292 Conn. 901, 971 A.2d 40 (2009).

       The defendant maintains that our standard of review is whether the court abused its discretion because “an evidentiary ruling is reviewed under an abuse of discretion standard.” The videotaped testimony however, is not hearsay; its introduction by the court is not an evidentiary exception to the hearsay rule and it is the functional equivalent of testimony in court. State v. Jarzbek, supra, 204 Conn. 697. As such, we review the court’s findings to determine if they were clearly erroneous. See State v. Alterisi, 47 Conn. App. 199, 205, 702 A.2d 651 (1997); see also Practice Book § 60-5.

       General Statutes § 54-86g (a) provides: “In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. If the defendant is excluded from the room or screened from the sight and hearing of the child, the court shall ensure that the defendant is able to observe and hear the testimony of the child, but that the child cannot see or hear the defendant. The defendant shall be able to consult privately with his attorney at all times during the taking of the testimony. The attorneys and the judge may question the child. If the court orders the testimony of a child to be taken under this subsection, the child shall not be required to testify in court at the proceeding for which the testimony was taken.”

       We note that our Supreme Court in State v. Arroyo, supra, 284 Conn. 622 n.18, squarely rejected the defendant’s argument that Crawford undermined the constitutional underpinnings of Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), in which the United States Supreme Court upheld a Maryland statute that permitted a child to testify outside the defendant’s presence. “The court in Craig expressly declined to hold that the child witness’ closed circuit testimony constituted out-of-court statements. . . . Therefore, Craig’s reliance on [Ohio v. Roberts, 448 U.S. 56, 66,100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), overruled in part by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)], among other precedents, for its conclusion that the right to face-to-face confrontation properly may be balanced against competing public interests, does not invalidate its holding that such a balancing is proper.” (Citation omitted; internal quotation marks omitted.) State v. Arroyo, supra, 622-23 n.18.

       “Once prosecutorial impropriety has been alleged ... it is unnecessary for a defendant to seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and it is unnecessary for an appellate court to review the defendant’s claim under Golding. . . . The reason for this is that the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by [our Supreme Court] in . . . [State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)].” (Internal quotation marks omitted.) State v. Jordan, 117 Conn. App. 160, 163, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d 648 (2009).

       The statements in which the defendant’s counsel stated or implied that N had admitted fabricating an unrelated incident include: “[C]ould this child be telling the truth on this date even though she didn’t tell the truth about a lot of things on that date? . . .
      “This Md with a history of telling stories .... [D]o you know what was going on in her head when she said some of the things that she said that now everyone agrees simply are not true? Her counselor up to the other day was still holding onto the knife story. . . .
      “[S]he didn’t want to go to school and face the consequences of her story until . . . last week or so when she admitted it clearly, that it was just a story.”

       The following excerpts are from the state’s rebuttal argument. The defendant challenges those statements that are italicized. In his rebuttal, the prosecutor read to the jury an exchange that occurred between the defendant’s counsel and N during counsel’s cross-examination of N during her videotaped testimony.
      “[Defense Counsel]: But that isn’t the reason you didn’t want to go to school, you didn’t want to go to school because you didn’t want to get your brother in trouble on a made-up story about a knife?
      “[N]: Yeah.
      “[The Prosecutor]: Well, which part of that question was she answering yeah to? Did she hear the whole thing? Yeah. The trained person on the [witness] stand yesterday, the person was trained in communications, trained to listen to people, and it was a question that was asked of her where even she admitted she missed part of it and answered to it a different part. You got a kid we’re talking about. And in order to believe that she is coming up with the story, concocting the story, she has to be an intellectual genius to be able to get by the people who are trained in this field, to get by somebody who has interviewed thousands of children, hundreds of children by Ms. [Theresa] Montelli [a forensic interviewer employed by Yale-New Haven Hospital in its child sexual abuse clinic] ....

        “Does she have the intellect to be able to come up with this story? . . . You have to believe it’s a giant conspiracy if you want to believe that each of these caretakers, each of these workers has found a job that they are trained to do, falls for a story /rom a young girl. Well, if that’s the case, they should be in a different line of work. If a young girl can buffalo them to that point, they should be in a different line of work. . . .

      “The idea is to get you to believe that the story she told to the counselor about the knife incident, well, that’s a lie, but there [were] a whole bunch of other lies before that. Where were they? We didn’t hear any of that. . . . [You need to] use your own intuition, your own intellect in making your decision as to whether the story makes sense. Because in order for [IV] to make up the story and this plot from nine years old up until now, she has to know the ways and means of [department] protocols to get by them so she could get herself into new places. . . .

      “So, what information do you have? You have to take what you believe, you have to take your intuition, your common sense, apply it as you listen to her tell her account of what happened to her, and then apply the law because otherwise you would have to believe that these people that we entrust to do these investigations, the people we entrust our children to be safe with and look out for the children, they have no idea what they’re doing. We might as well close [the department] down because they have a pointed view and that’s to go out and get people like [the defendant]. Or is their training and experience from that they are told in regard to the research, the training that they continue to go to, is it more right than wrong?" (Emphasis added.)


author: LAVERY, J.

text:
    RONALD VESTUTI v. JOHN V. MILLER
    (AC 31042)
    Alvord, Flynn and Lavery, Js.
    Argued April 15
    officially released September 28, 2010

      John R. Williams, for the appellant (plaintiff).

      Benjamin D. Gettinger, with whom, on the brief, was Hugh F. Keefe, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Ronald Vestuti, appeals from the summary judgment rendered by the trial court in favor of the defendant, John V. Miller. The issue presented in this appeal is whether the court properly determined that there was no genuine issue of material fact regarding the plaintiffs ability to bring this action under the accidental failure of suit statute, General Statutes § 52-592. Because we conclude that a genuine issue of material fact does exist, we reverse the judgment of the trial court.

The following facts and procedural history are relevant to our review of the plaintiffs appeal. In September, 2004, the plaintiff filed an excessive force claim against the defendant, an East Haven police officer (original action), alleging that his rights under the fourth amendment to the United States constitution were violated. On March 6, 2006, the court scheduled a mandatory pretrial conference for November 29, 2006. The notice of the pretrial stated that the parties must appear and that the failure to do so risked nonsuit, dismissal or default.

On November 29, 2006, defense counsel appeared for the pretrial. Because neither the plaintiff nor the plaintiffs counsel was present, the court, Lager, J., granted the defendant’s motion for a judgment of non-suit. Subsequently, the plaintiff filed a motion to open the nonsuit. The plaintiff did not contest the fact of nonattendance at the pretrial conference. Rather, he claimed that, although his attorney was aware of the conference, she was on trial in a separate matter at the same time and at the same courthouse. Although his attorney acknowledged that she should have requested a break in the trial to attend the conference, due to inadvertence and the difficult nature of the litigation she was involved with, she failed to schedule the conference properly with the plaintiff and to request a recess to cover the conference. Because the other attorneys in her office were not available at the time of the pretrial conference and they had assumed that she would attend, alternate arrangements were not possible. The motion to open the nonsuit was not supported by any affidavits or other evidence. On January 3, 2007, the court denied the motion to open. The plaintiff did not appeal from the court’s decision.

Instead, on November 26, 2007, the plaintiff commenced the present action, alleging the same claim as pleaded in the original action that he filed in September, 2004. In the complaint, the plaintiff asserts that the timely, original action was dismissed for a “matter of form” within the meaning of § 52-592 (a), and, thus, the statute of limitations was tolled. In response, the defendant filed a motion for summary judgment on April 1, 2009. He argued that summary judgment was appropriate because the plaintiffs claim was barred by the statute of limitations and the plaintiff cannot use § 52-592 (a) to revive his otherwise stale claim. Specifically, the defendant argued that the plaintiffs attorney knew about the pretrial conference and, thus, made a conscious decision not to attend. Thus, the defendant asserted that the plaintiffs attorney did not merely forget about the pretrial but, rather, ignored it.

In opposition, the plaintiff relied on his motion to open the nonsuit, which the defendant had attached to . his summary judgment motion, to establish the evidentiary foundation to demonstrate the existence of a genuine issue of material fact. The plaintiff offered no evidence of his own. The plaintiff argued that the conduct involved in the original action was not so egregious as to preclude his reliance on the accidental failure of suit statute. Rather, he asserted that the conduct that led to the disciplinary nonsuit was a classic illustration of the kinds of inadvertent mistakes that can bedevil the life of any busy trial attorney.

The court, Cronan, J., granted the defendant’s motion for summary judgment on April 21, 2009. In its memorandum of decision, the court framed the issue as whether the disciplinary nonsuit was the result of “ ‘mistake, inadvertence or excusable neglect’ ”—the applicable standard in order for the plaintiff to successfully save his cause of action under the accidental failure of suit statute. See Ruddock v. Burrowes, 243 Conn. 569, 576-77, 706 A.2d 967 (1998). In determining that the plaintiff had not met the requisite standard, the court stated: “In this matter, the plaintiffs attorney was in the same courthouse on a different floor. It appears that no effort was made to contact the presiding judge or the case flow coordinator to inform either party that she was on trial despite months of notice that the pretrial was to go forward. The court must also reach the assumption that since the plaintiff was not present, he may not have been informed of the pretrial or was not otherwise aware of the proceeding at which he was required to appear. [Under Connecticut precedent] the courts enforce the pace of litigation, not the parties to the litigation.” (Citations omitted.) This appeal followed.

“The standard of review of a trial court’s decision to grant summary judgment is well established. [W]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citation omitted; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000). “A material fact is a fact which will make a difference in the result of the case. . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Citation omitted; internal quotation marks omitted.) Curley v. Kaiser, 112 Conn. App. 213, 220, 962 A.2d 167 (2009).

“The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citations omitted; internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996). “Where the trial court is presented with undisputed facts, as it was here, our review of its conclusions is plenary, as we must determine whether the court’s conclusions are legally and logically correct [and find support in the facts that appear in the record].” (Internal quotation marks omitted.) Raynor v. Hickock Realty Corp., 61 Conn. App. 234, 237, 763 A.2d 54 (2000).

We believe it helpful to begin our discussion with an examination of the case law interpreting § 52-592 (a). Section 52-592 (a) allows a plaintiff to commence a new action for the same cause, within one year, if the original action failed “to be tried on its merits ... for any matter of form . . . .” “Deemed a saving statute, § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations. ... In order to fall within the purview of § 52-592, however, the original lawsuit must have failed for one of the reasons enumerated in the statute.” (Citation omitted; internal quotation marks omitted.) Skinner v. Doelger, 99 Conn. App. 540, 553, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007). Here, the court rejected, as a matter of law, the plaintiffs claim that the disciplinary nonsuit in the original action was “for any matter of form” within the meaning of § 52-592 (a).

In the seminal case of Ruddock v. Burrowes, supra, 243 Conn. 576-77, our Supreme Court considered whether a disciplinary dismissal may be characterized as a dismissal “for any matter of form” for purposes of obtaining relief pursuant to § 52-592. The court concluded that “disciplinary dismissals are not excluded categorically from the relief afforded by § 52-592 (a)”; id., 576; rather, whether the dismissal of a prior proceeding permitted a plaintiff recourse to the statute “depends upon the nature and the extent of the conduct that led to the disciplinary dismissal.” Id., 570. Accordingly, the court instructed that the egregiousness of the conduct precipitating the dismissal must be examined in determining whether § 52-592 applies in a given instance. Id., 576-77.

Our Supreme Court in Ruddock continued by cautioning that “[w]hether [§ 52-592] applies cannot be decided in a factual vacuum. . . . Instead, the propriety of applying § 52-592 depends on whether the plaintiff has made a factual showing that the prior dismissal was a matter of form in the sense that the plaintiffs noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.” (Citation omitted; internal quotation marks omitted.) Skinner v. Doelger, supra, 99 Conn. App. 554. “The [Supreme Court in Ruddock] provided additional guidance by explaining that failing to appear at scheduled hearings might constitute egregious conduct if a party exhibits a pattern of behavior that interferes with proper judicial management of cases.” Gillum v. Yale University, 62 Conn. App. 775, 783, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001). “The inquiry under § 52-592, therefore, may be conceptualized as a continuum whereupon a case must be properly placed between one extreme of dismissal for mistake and inadvertence, and the other extreme of dismissal for serious misconduct or cumulative transgressions.” Skinner v. Doelger, supra, 554.

Based on the foregoing, we conclude that a genuine issue of material fact exists, and, thus, we reverse the judgment of the trial court. The court’s memorandum of decision fails to consider the claimed justification for the failure of the plaintiffs attorney to attend the pretrial conference. We hold that this alleged justification creates a genuine issue of material fact as to whether the plaintiff can establish that the disciplinary nonsuit was a “matter of form in the sense that the plaintiffs noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.” Ruddock v. Burrowes, supra, 243 Conn. 577.

Although we conclude that summary judgment is inappropriate in this case, we go on to note that the Supreme Court in Ruddock stated that one incident of unjustifiable misconduct, such as missing a conference and failing to offer the court a credible excuse for such behavior, could suffice to preclude application of the statute. Ruddock v. Burrowes, supra, 243 Conn. 576 n.12. From a policy perspective, we also note that although § 52-592 should be broadly construed because of its remedial nature, “[o]ur judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system. To reduce delay while still maintaining high quality justice, it is essential that we have judicial involvement in maintaining cases. . . . Judges must be firm and create the expectation that a case will go forward on the specific day that it is assigned.” (Internal quotation marks omitted.) Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 32-33, 474 A.2d 787 (1984).

In light of the above, an unresolved issue raised by the plaintiffs motion to open the nonsuit exists. In direct opposition to the allegation of inadvertence that the plaintiffs attorney relies on, the defendant contends . that the accidental failure of suit statute is inapplicable because the plaintiffs attorney missed the scheduled pretrial conference not due to inadvertence but, rather, due to her conscious decision to disregard the court-ordered pretrial. Furthermore, we note again that “[w]hether the statute applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form in the sense that the plaintiffs noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.” (Emphasis added; internal quotation marks omitted.) Ruddock v. Burrowes, supra, 243 Conn. 576-77.

Consequently, the plaintiff should be afforded the opportunity to have the court determine this issue— that the judgment of nonsuit entered due to the mere inadvertence of the plaintiffs attorney—especially given the surrounding circumstances in which the plaintiffs attorney knew for months in advance the date of the mandatory pretrial conference and yet still failed to notify both the plaintiff of the conference and the presiding judge that she would not attend. Without the trial court appropriately weighing the evidence and determining credibility, there is an insufficient evidentiary basis for this case to be accurately placed on the § 52-592 continuum. See Skinner v. Doelger, supra, 99 Conn. App. 554; see also Ruddock v. Burrowes, supra, 243 Conn. 578.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion for summary judgment and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       General Statutes § 52-592 entitled “Accidental failure of suit; allowance of new action,” provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits ... for any matter of form . . . the plaintiff . . . may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. . . .”

       “Summary judgment may be granted where the claim is barred by the statute of limitations.” Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Filing an action beyond the date established by the applicable limitations is an appropriate ground on which to grant a motion for summary judgment when the “material facts concerning the statute of limitations [are] not in dispute . . . Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

       The plaintiff has not challenged the defendant’s argument that, if § 52-592 (a) does not permit this action, the action would be barred by the otherwise applicable statute of limitations.

       In granting the defendant’s motion for summary judgment, the court made no reference in its memorandum of decision to the factual issues raised in the plaintiffs motion to open the nonsuit regarding the plaintiffs attorney and her claimed “inadvertent” failure to attend the pretrial conference due to the complexity of the trial she was litigating and her failure to request a recess to attend the pretrial conference. We also note that the court in the original action did not make any findings of fact about the reasons for the plaintiffs nonattendance at the pretrial conference.

       “Disciplinary dismissals refer to cases dismissed for a variety of punitive reasons, such as the failure to attend a scheduled pretrial conference . . . or the failure to close the pleadings in a timely maimer.” (Internal quotation marks omitted.) Skinner v. Doelger, supra, 99 Conn. App. 553-54. Although in the original action in this case the court rendered judgment of nonsuit for disciplinary reasons and did not dismiss the case for disciplinary reasons, it does not change the analysis a court applies in determining the availability of § 52-592 (a). See Stevenson v. Peerless Industries, Inc., 72 Conn. App. 601, 603, 806 A.2d 567 (2002).

       As we noted in Skinner v. Doelger, supra, 99 Conn. App. 557-58, “our Supreme Court [has drawn] a critical distinction between categories of cases involving, for instance, [njonappearances that interfere with properjudicial management of cases, and cause serious inconvenience to the court and to opposing parties . . . and those involving things such as a mere failure to respond to a notice of dormancy . . . .” (Citation omitted; internal quotation marks omitted.)