author: BEACH, J.

text:
    CELIA ZAHRINGER v. GEORGE J. ZAHRINGER III
    (AC 31056)
    Flynn, C. J., and Beach and West, Js.

      Argued March 15
    officially released November 2, 2010

      Wesley W. Horton, with whom was Daniel J. Krisch, for the appellant (defendant).

      Gary I. Cohen, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

BEACH, J.

The defendant, George J. Zahringer III, appeals from the judgment of the trial court modifying the unallocated alimony and child support awarded to the plaintiff, Celia Zahringer, at the time of the dissolution of the marriage of the parties. The defendant claims that the court erred by (1) finding that payments from the plaintiffs father, Eugene Goldberg, were loans, (2) not taking these payments into account, regardless of whether or not they were loans, in fashioning its order for unallocated alimony and child support, (3) incorporating the defendant’s capital accumulation plan (CAP) distribution into the determination of the plaintiffs alimony award, and (4) employing the dates of the 1999 hearing on the plaintiffs motion for modification of alimony and child support and the parties’ gross income in fashioning its financial orders. We agree that the court erred in employing the dates of the 1999 hearing and accordingly reverse the judgment of the trial court.

This appeal follows a retrial after our Supreme Court reversed the decision of this court affirming the original decision of the trial court and remanded the case for a new hearing on the plaintiffs motion for modification. See Zahringer v. Zahringer, 262 Conn. 360, 815 A.2d 75 (2003). The record reflects the following factual and procedural history that is relevant to this appeal.

“The parties’ marriage of almost fourteen years was dissolved on August 28, 1995. Prior to the dissolution, three children were bom of the marriage. The judgment of dissolution incorporated by reference the terms of a separation agreement (agreement), also signed and dated August 28, 1995. Article III, paragraph 3.3 of the agreement provides in relevant part that [c]ommencing January 15, 1996 for the month of January 1996, the [defendant] shall pay to the [plaintiff] the sum of $25,000 per month as unallocated alimony and child support, said order shall be non-modifiable as to amount through December 1998. Article III, paragraph 3.5 further provides in relevant part that either party may petition the Court for a review of the monthly unallocated alimony and support payment at any time after January 1, 1999. The Court shall at that time consider the totality of the financial circumstances of the parties and by application of the criteria set forth in Connecticut General Statutes Section 46b-82 determine whether the then existing unallocated alimony and support award should continue unmodified, should be increased, or should be reduced. Any modification shall be made retroactive to January 1, 1999.

“On April 8, 1999, the plaintiff filed a motion for modification of the existing unallocated alimony and support award. In her motion, the plaintiff represented that the defendant currently had a substantially greater disposable income than he did at the time of the judgment dissolving the marriage. The plaintiff also asserted in the motion that the cost of the children’s various activities had increased substantially given their change in age since the time of the judgment. A hearing on the plaintiffs motion took place on December 8, 9 and 10, 1999. . . .

“Thereafter, the [trial] court rendered a decision on the plaintiffs motion for modification.” (Citation omitted; internal quotation marks omitted.) Zahringer v. Zahringer, supra, 262 Conn. 362-63. “[T]he court ordered the defendant to pay the sum of $50,000 monthly to the plaintiff as unallocated alimony and child support, effective as of January 1, 1999, pursuant to paragraph 3.5 of the parties’ . . . agreement. Because the new order was to be retroactive and, as a result, created an arrearage, the court ordered that the arrearage be paid in monthly installments of $37,500 until paid in full, commencing April 15, 2000.” (Internal quotation marks omitted.) Id., 364.

On appeal to this court, the defendant claimed that the trial court improperly had failed to consider the contributions made to the plaintiff by her parents in its alimony award. Id. This court determined that the record was inadequate to review that claim. Id., 361. The defendant then appealed to our Supreme Court, claiming that the record was adequate to review his claim. Id. The Supreme Court agreed and reversed the decision of this court. Id., 362. Our Supreme Court remanded the case to us with direction to reverse the judgment of the trial court and to remand the case for a new hearing on the motion for modification. Id., 371. The Supreme Court provided the following direction to the trial court: “The issue of whether any loan, regardless of whether it is the result of an arm’s-length transaction and irrespective of its terms, properly may be considered by the trial court in fashioning financial orders is not yet ripe for our consideration in this case because the trial court made no finding in this regard. Following our remand, should the trial court determine that the fund was not a gift, the trial court may make the necessary findings in connection with that issue. We further note that on remand the trial court will have before it the issue of whether paragraph 3.5 of the . . . agreement approved by the court requires it to consider the funds, regardless of how they are characterized.” (Emphasis in original.) Id., 369-70 n.2.

Following the remand by our Supreme Court, the defendant filed a motion for modification in September, 2003. A hearing was conducted on the plaintiffs 1999 motion for modification and the defendant’s 2003 motion for modification on various days in 2007 and 2008. On December 3, 2008, the trial court filed its memorandum of decision on both motions. On the plaintiffs 1999 motion for modification, the court increased the unallocated alimony and support order from $25,000 to $50,000 per month retroactive to January 1, 1999. On the defendant’s 2003 motion for modification, the court granted the motion to reduce payments to $43,750 per month effective October 15, 2003, as a result of the three children of the marriage having reached the age of majority. Additional facts will be set forth as necessary.

We begin by setting forth the well settled standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Cifaldi v. Cifaldi, 118 Conn. App. 325, 330-31, 983 A.2d 293 (2009).

I

The defendant first claims that the court erred when it determined that the payments from the plaintiffs father to her were loans and not gifts. We disagree.

The following additional facts, found by the trial court, are necessary to our resolution of the defendant’s claim. In January, 1998, the plaintiff received $110,000 from her father. In January, 1999, the plaintiff received $120,000 from her father. These two payments were placed in a joint checking account on which the plaintiff was authorized to draw checks. Each payment was accompanied by a note signed by the plaintiff indicating that the money deposited for her benefit was a loan from her father. From February, 2000, through some time in 2008, the plaintiff received additional funds from her father, and she signed corresponding notes. The total value of the notes exceeded $2 million. These additional funds were not placed into the joint account but, rather, were wired to the plaintiff by her father when she informed him that she needed additional funds to supplement her income from alimony. On June 1, 2005, the plaintiff executed a mortgage deed in favor of her father for $650,000. This mortgage was then modified on February 2, 2006. The indebtedness recited in the mortgage was increased to $1,330,000. The plaintiff has never paid any of the principal on the loans but has paid some interest “[f]rom time to time.”

The court relied on the testimony of the plaintiff and her father. The plaintiff testified that she had begun borrowing money from her father because her alimony “funds that [she] had to maintain the life for [herself] and [her] children in a manner that [they] had lived prior to [the parties’] divorce were insufficient.” She further testified that if her motion for modification were granted, she could then repay her father. If her motion for modification were not granted, then she had planned possibly to sell her house in order to repay him.

The plaintiffs father also testified as to his understanding of the agreement between himself and the plaintiff regarding the funds he provided to her, which testimony the court found credible. He stated that he had loaned the plaintiff the money with the intention that she would repay him. Her father testified that he did not give the plaintiff any money because it was not his place to give her money. He declared that he required the plaintiff to sign a second mortgage on her home in his favor because “I want to get my money back. I’ll do anything I can to get it back. I don’t want it to go in any other direction . . . other than to me, when I’m entitled to it.” He also stated, “I do not look upon myself as a source of income for my daughter.” He explained that the debt reflected in the mortgage was less than the total amount of the outstanding notes because he wanted to keep the mortgage to an amount that realistically could be collected. His accountant, Stuart Kotler, also testified and confirmed that he had had discussions with the plaintiffs father regarding the loans to the plaintiff and the tax implications arising therefrom. The court subsequently found that the plaintiffs father had “presented credible evidence of bona fide loans.”

The defendant argues that the payments were a series of gifts “notwithstanding the thin veneer of a loan [the plaintiff] and her father have attempted to put on those payments.” “As an appellate court, we do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . . The goal of our analysis is simply to decide whether the trial court’s conclusion was reasonable.” (Citation omitted; internal quotation marks omitted.) Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987).

The court specifically commented on its credibility determinations in its memorandum of decision. The court concluded, on the basis of the demeanor, attitude and credibility of the plaintiffs father, that the funds provided to her were not gifts but were loans that must be paid back. “It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses. ... It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Rubenstein v. Rubenstein, 107 Conn. App. 488, 497, 945 A.2d 1043, cert. denied, 289 Conn. 948, 960 A.2d 1037 (2008). In light of the court’s findings of credibility regarding the intent of the plaintiff and her father as to the loans, we cannot conclude that the court’s findings were clearly erroneous.

II

The defendant next claims that the court improperly failed to take into account the plaintiffs loans from her father in fashioning the alimony award. Specifically, the defendant claims that the court should have considered the loans from the plaintiffs father as income to her, even if they technically were determined to be loans, because they were not handled on an arm’s length basis and they affected the totality of the plaintiffs financial circumstances. Because the defendant did not provide an adequate record, we decline to review this claim.

As discussed previously, in our Supreme Court’s decision remanding the case to the trial court, it ordered that the trial court determine whether the funds provided by the plaintiffs father to the plaintiff were gifts or loans. It then directed that “should the trial court determine that the fund was not a gift, the trial court may make the necessary findings in connection with that issue. We further note that on remand the trial court will have before it the issue of whether paragraph 3.5 of the . . . agreement approved by the court requires it to consider the funds, regardless of how they are characterized.” Zahringer v. Zahringer, supra, 262 Conn. 369-70 n.2. On remand, the trial court did not determine specifically and expressly whether the loans should be considered income because they were not handled on an arm’s length basis, nor did it consider specifically and expressly whether paragraph 3.5 of the agreement required it to consider the loans as part of the totality of the financial circumstances of the parties.

“It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record [when] the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Emphasis added; internal quotation marks omitted.) Mickey v. Mickey, 292 Conn. 597, 609, 974 A.2d 641 (2009). The defendant failed to meet this burden, and, accordingly, we decline to review this claim.

Ill

The defendant further claims that the court erred in taking his 2007 CAP 6distribution of $1.2 million into account in determining the plaintiffs alimony award. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. The agreement, signed by the plaintiff and the defendant, contained the following language in paragraph 3.3 regarding alimony and support, which provides in relevant part: “[C]ommencing July 15, 1996, the [plaintiff] shall be entitled to one-third (1/3) of all amounts contributed by [the defendant] to the Bear Steams Capital Accumulation Plan between the period July 1, 1996 and June 30, 1999. The [plaintiffs] entitlement shall be limited to one-third (1/3) of the gross amounts contributed to the said Plan during the dates stated herein, together with all incremental increases (and subject to all incremental decreases) occasioned by the change in the value of [the defendant’s] units in the Plan. The [plaintiffs] share of the Plan shall not be deductible by him or taxable to her until distributions are received by the [defendant]. The [defendant] shall immediately pay to the [plaintiff] as deductible alimony one-third (1/3) of all distributions received by him on account of his participation in the Plan for the period July 1, 1996 through June 30,1999, even if the [plaintiff] shall have remarried, cohabited or died after June 30, 1999; but before the [defendant] goes into pay status for the CAP plan contributions made between July 1, 1996 and June 30, 1999. The [plaintiff] waives her right to participation in the CAP plan for any years other than these expressly provided to her in paragraph 3.3.”

Paragraph 3.5 of the agreement provides: “If alimony has not previously terminated . . . either party may petition the Court for a review of the monthly unallocated alimony and support payment at any time after January 1, 1999. The Court shall at that time consider the totality of the financial circumstances of the parties and by application of the criteria set forth in Connecticut General Statute [s] Section 46b-82 determine whether the then existing unallocated alimony and support award should continue unmodified, should be increased, or should be reduced. Any modification shall be made retroactive to January 1, 1999.”

“[I]t is familiar law that a marital dissolution agreement is a contract. . . . Thus, in reviewing it, we are guided by the law that the interpretation of a contract may either be a question of law or fact, depending on whether the language of the contract is clear and unambiguous. . . . When the language of the agreement is clear and unambiguous, its meaning is a question of law subject to plenary review.” (Internal quotation marks omitted.) Sutherland v. Sutherland, 107 Conn. App. 1, 5, 944 A.2d 395 (2008). Moreover, such a contract “must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Id., 5-6. We conclude that the language of the agreement is clear and unambiguous.

We find unpersuasive the defendant’s argument that the court improperly determined that paragraph 3.3 of the agreement precluded the court from considering any CAP distributions as part of the defendant’s income. The defendant, contends that the agreement was crafted to exclude any CAP distributions from consideration as part of his income when modifying his alimony and support obligation. The defendant bases this interpretation on the language that states that the plaintiff “ ‘shall be entitled to one-third’ ” of the CAP distributions from 1996 to 1999 and the last sentence in that section that states that the plaintiff “ ‘waives her right to participation in the CAP plan for any years other than these expressly provided to her in paragraph 3.3.’ ” The defendant argues that by considering CAP distributions as part of his income, the court applied an improper definition of “ ‘participation’,” which permitted the plaintiff to continue to participate in the CAP after the 1999 agreed on limit. We agree with the court that although the plaintiff had waived further direct participation in the CAP after 1999, in the form of receiving a defined percentage of the distributions from it regardless of other circumstances, including remarriage, she did not expressly waive her ability to have any distributions made to the defendant deemed to be part of his income.

It is axiomatic that “[w]hen interpreting a contract, we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result.” (Internal quotation marks omitted.) Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, 288 Conn. 223, 232, 951 A.2d 1249 (2008). When paragraph 3.3 is read in conjunction with paragraph 3.5, instructing the court to consider the totality of the financial circumstances of the parties, the agreement allows consideration of any CAP distributions as part of the defendant’s income for purposes of modification.

IV

The defendant next claims that the court improperly fashioned its award of alimony by (1) using his income as of December, 1999, to determine whether alimony should increase, decrease or remain the same and (2) by comparing his gross income rather than his net income. We agree that the court erred in using the defendant’s income in December, 1999, to fashion its alimony award.

A

The defendant claims that the court erred when it compared his income in December, 1999, with his income in 1995. The agreement states that after January 1, 1999, either party may petition for a review of the alimony and “[t]he court shall at that time consider the totality of the financial circumstances of the parties . . . .” (Emphasis added.) The court determined that the proper process for determining whether alimony should increase, decrease or remain the same was to compare the defendant’s income in December, 1999, with his income at the time of dissolution in August, 1995.

“When a modification of alimony is requested on the basis of the separation agreement, the court must look to the agreement. Separation agreements incorporated by reference into dissolution judgments are to be interpreted consistently with accepted principles governing contracts.” (Internal quotation marks omitted.) Cushman v. Cushman, 93 Conn. App. 186, 191, 888 A.2d 156 (2006). The construction of a contract to ascertain the intent of the parties presents a question of law when the contract or agreement is unambiguous within the four comers of the instrument. Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999). “[T]he construction of a written contract is a question of law requiring plenary review.” Flaherty v. Flaherty, 120 Conn. App. 266, 269, 990 A.2d 1274 (2010). “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.” (Internal quotation marks omitted.) Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 288 Conn. 231.

“When the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990). “A word is ambiguous when it is capable of being interpreted by reasonably well informed persons in either of two or more senses. . . . Ambiguous can be defined as unclear or uncertain, or that which is susceptible of more than one interpretation, or understood in more ways than one.” (Internal quotation marks omitted.) Reichenbach v. Kraska Enterprises, LLC, 105 Conn. App. 461, 476, 938 A.2d 1238 (2008). “In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) Wolosoff v. Wolosoff, 91 Conn. App. 374, 381, 880 A.2d 977 (2005). “[A]ny ambiguity in a contract must emanate from the language used by the parties. . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so.” (Internal quotation marks omitted.) Detels v. Detels, 79 Conn. App. 467, 472, 830 A.2d 381 (2003). In giving effect to all of the language of a contract, “the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous.” (Internal quotation marks omitted.) Honulik v. Greenwich, 293 Conn. 698, 711, 980 A.2d 880 (2009).

Paragraph 3.5 of the agreement states: “If alimony has not previously terminated by the occurrence of an event described in the preceding paragraph, then in such event either party may petition the Court for a review of the monthly unallocated alimony and support payment at any time after January 1, 1999. The Court shall at that time consider the totality of the financial circumstances of the parties and by application of the criteria set forth in Connecticut General Statute [s] Section 46b-82 determine whether the then existing unallocated alimony and support award should continue unmodified, should be increased, or should be reduced. Any modification shall be made retroactive to January 1, 1999.”

We conclude that the agreement is ambiguous because it is susceptible to more than one interpretation. The defendant argues that the court should have interpreted this provision of the agreement such that the court should consider the financial circumstances of the parties as of either the date of filing the motion for modification or the dates that the second hearing was held. The court interpreted this provision such that it should determine the financial circumstances of the parties at the time of the first hearing on the motion to modify, conducted by Judge Harrigan and subsequently overturned by our Supreme Court. We agree with the defendant that the court improperly determined both the current and the retroactive alimony by reference to the date of the first hearing.

When construing a contract, we may consider circumstances surrounding the transaction. See Lawson v. Whitey’s Frame Shop, 241 Conn. 678, 686, 697 A.2d 1137 (1997). The parties seem to have constructed this provision of their agreement to provide for a second look at alimony to be performed after January 1, 1999. The parties eliminated the need for the court to determine whether a significant change in circumstances had occurred that would warrant a change in alimony; the percentage participation in CAP contributions and increments would have expired. The phrase “at that time” must then apply to the time when the court must determine whether to increase, to decrease or to maintain the plaintiffs current alimony award. The court determines whether to adjust the defendant’s alimony payments at the hearing on the motion for modification. Therefore, the logical meaning of the phrase “at that time” refers to the date of the actual hearing on the motion.

This interpretation of the parties’ agreement is also consistent with our case law. We have held that “the financial awards in a marital dissolution case should be based on the parties’ current financial circumstances to the extent reasonably possible.” (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 846, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005); see also Cuneo v. Cuneo, 12 Conn. App. 702, 709, 533 A.2d 1226 (1987). The parties drafted other sections of the agreement such that they clearly deviate from current case law, such as providing that any modification to the award would be retroactive to January 1,1999: The parties did not explicitly indicate that they wanted to bind themselves to a deviation from our case law on the issue of the relevant dates to use in defining income. We therefore are left to conclude that they did not intend to bind themselves to a rule requiring a different date of determination that would deviate from our case law. Accordingly, we conclude that the proper date for determining income, for the purpose of deciding whether the plaintiffs current alimony award should be increased, decreased or remain the same, is the date of hearing on the motion to modify following the remand from our Supreme Corut.

Consistent with our case law, the trial court has discretion in determining the amount of alimony to be paid retroactive to January 1,1999. See Hartney v. Hartney, 83 Conn. App. 553, 559, 850 A.2d 1098 (“[t]rial courts are vested with broad and liberal discretion in fashioning orders concerning the type, duration and amount of alimony and support, applying in each case the guidelines of the General Statutes”), cert. denied, 271 Conn. 920, 859 A.2d 578 (2004). The retroactive award may take into account the long time period between the date of filing a motion to modify, or, with this case, the contractual retroactive date, and the date that motion is heard, which in this case spans a number of years. The court may examine the changes in the parties’ incomes and needs during the time the motion is pending to fashion an equitable award based on those changes. The current alimony need not be uniformly retroactive, if such a result would be inequitable.

B

The defendant’s final claim is that the court improperly used his gross income to fashion the alimony award. Because we reverse the decision of the court for using an improper date to fashion the alimony award, we need not decide this claim. We do note, however, that it is well settled that a court must base its alimony award on the available net income of the parties, not their gross income. Morris v. Morris, 262 Conn. 299, 305-306, 811 A.2d 1283 (2003); see also Loughlin v. Loughlin, 280 Conn. 632, 659, 910 A.2d 963 (2006); Cleary v. Cleary, 103 Conn. App. 798, 801, 930 A.2d 811 (2007).

The judgment is reversed and the case is remanded to the trial court for a new hearing on the plaintiffs motion for modification.

In this opinion the other judges concurred.

       The defendant also claims that the court abused its discretion in increasing the plaintiffs alimony from $25,000 per month to $50,000 per month and in finding an arrearage of more than $3 million. Because we reverse the decision of the trial court on other grounds, we need not decide this claim.

       The children reached the age of majority on December 5,2001, November 8, 2003, and October 6, 2005, respectively.

       We have not overlooked the arguments of the defendant suggesting that the finding of a series of loans is implausible. We conclude, however, that the arguments do not overcome the specific credibility assessments.

       The court did state in its decision that “[t]he totality of the financial circumstances must include a determination of whether the sums advanced by . . . Goldberg to his daughter constitute gifts or loans, section 3.5 [of the agreement] cannot be read with any other meaning.” This statement, however, does not indicate whether and to what extent such sums advanced to the plaintiff affected her financial circumstances.

       The defendant testified to the following information to explain the CAP plan: “[I]t’s a deferred compensation plan, and the purpose of the plan was to link the performance of Bear Steams and the compensation of the employees at Bear Steams [who] participated in the plan, which were senior managing directors, with the performance of Bear Steams stock. [Bear Steams was] then a public company. So, the plan was constructed in such a way that the amounts that were deferred either grew or declined. Their performance was linked to the performance of the public security of Bear Steams, which trades on the New York Stock Exchange. . . .
      “On a monthly basis ... a certain amount of my income was deferred into the plan. At the end of the year, those moneys were translated into an equivalent number of shares of Bear Steams stock. So, if I, for the court’s benefit, deferred . . . $1000 and Bear Steams was selling for $100 a share, I would have gotten 10 CAP units at that point in time. . . .
      “There was a five year vesting period. So, amounts that were deferred in 1995 were automatically distributed in the year 2000. ... In 2000 . . . [i]t became mandatory participation by senior managing directors.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. GEOVANNY ZILLO
    (AC 30998)
    DiPentima, C. J., and Beach and Bear, Js.
    Argued September 2
    officially released November 2, 2010

      Timothy F. Sullivan, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence D. Mariani, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J. The defendant, Geovanny Zillo, appeals from the trial court’s judgment of conviction, following a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (2), three counts of risk of injury to a child in violation of General Statutes § 53-21 (1) and one count of risk of injury to a child in violation of § 53-21 (2). On appeal, the defendant claims that (1) the court erroneously admitted 2188 photographs into evidence and (2) he was denied his constitutional right to a fair trial on the basis of prosecutorial impropriety. We affirm the judgment of the trial court.

The following facts, which the juiy reasonably could have found, are relevant to our resolution of the issues on appeal. The family of the eleven year old victim in this case, all of whom emigrated to the United States from China, owned a Chinese restaurant that the defendant frequented during 1998 and early 1999. During this time, the defendant became friendly with the victim and her family, often assisting the children with their homework and with the English language. The defendant was invited to family gatherings and holiday celebrations, and he purchased several gifts for the family, including a computer for the children and a $500 translator. The victim’s parents eventually became concerned about the attention that the defendant was showing the victim, especially his attempts to speak with her privately, and the family told the defendant that he no longer was welcome at the restaurant. Accordingly, the defendant stopped going to the restaurant.

After the defendant stopped going to the restaurant, he began to follow the victim and to pick her up as she waited for the bus to take her to school. The defendant would take the victim to a house where he would sexually assault her. He also took her to a wooded area to take photographs of her, and he took her to a McDonald’s restaurant. The victim testified that the defendant, whom she called G-Bunny, repeatedly sexually assaulted her when she was eleven years old. The defendant made the victim remove her clothing, kissed her breasts, performed oral sex on her, digitally penetrated her vagina and her anus, licked her anus, made her hold his erect penis in her hand, made her urinate into his mouth so that he could taste her mine to see if it was as “sweet” as she and attempted to make her perform oral sex on him. The defendant instructed the victim not to tell anyone about his behavior, and he told her that he wanted to marry her. He also gave her money.

In 2005 or 2006, the defendant established an account on the social website Myspace.com (MySpace) using the name AnnaLuckyOne, where he purported to be an Asian female and included a photograph of an unknown Asian female on his profile. He soon contacted the victim, who also had a MySpace account, and he attempted to establish a relationship with the victim by telling her that he was a young Asian girl. The defendant, acting as this young Asian girl, subsequently told the victim that the defendant was AnnaLuckyOne’s friend and asked if she would be willing to resume a friendship with him. Suspicious that her new friend really was the defendant and not another young Asian female, the victim panicked and went to see her school counselor and her dormitory parent in whom she confided that the defendant previously had sexually assaulted her. Soon thereafter, the victim filed a police report, and a warrant was issued for the defendant’s arrest. The defendant was tried on eight counts as set forth earlier in this opinion; he elected to be tried by a jury.

The jury found the defendant guilty on all eight counts as charged. The court accepted the jury’s verdict and sentenced the defendant to a total effective term of thirty years imprisonment, execution suspended after fifteen years, with fifteen years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion in limine and permitted the state to introduce into evidence 2188 photographs of adult Asian women that the police had found on an external hard drive, which was confiscated from the defendant’s automobile pursuant to a search warrant. He argues that all of these photographs, with the exception of three photographs of one woman who was unclothed, were innocuous photographs of fully clothed adult women of Asian descent. He further argues that these photographs were irrelevant to the charges that he faced, charges that involved an eleven or twelve year old child, that the photographs were obtained in 2006, some eight years after the crimes alleged, and that the introduction of these photographs to the jury was highly prejudicial. He argues that the jury could have concluded that “because the defendant possessed these [photographs] in 2006, he ha[d] a proclivity to Asian women and, because of that proclivity, he committed the charged offenses [eight] years earlier against a child who happened to be Chinese.” In response, the state argues that “the trial court did not abuse its broad discretion in concluding that these photographs were admissible because they tendfed] to establish the fact of the defendant’s obsession with Asian females, and also in concluding that evidence of this obsession, in turn, tended to corroborate the testimony of the victim, as well as other witnesses, regarding the defendant’s fixation with the eleven to twelve year old Asian victim. . . . The jury reasonably could have viewed such evidence, when considered in conjunction with all the other evidence, as tending to corroborate the victim’s testimony that the defendant did, in fact, eventually engage in the prohibited sexual, and other, acts with the child.” Although we agree with the defendant that the court abused its discretion in admitting the 2188 photographs into evidence, we conclude that the defendant has failed to show that the improper admission was harmful in that it substantially affected the jury’s verdict.

Initially, we set forth the applicable standard of review. “Our analysis of the [defendant’s] . . . [claim] is based on well established principles of law. The trial court’s ruling on the admissibility of evidence is entitled to great deference . . . [and] will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 769-70, 991 A.2d 1086 (2010). “Despite this deferential standard, the trial court’s discretion is not absolute. . . . Thus, [i]n reviewing a claim of abuse of discretion, we have stated that [discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.” (Citation omitted; internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 627, 930 A.2d 628 (2007).

The following additional facts are relevant to our resolution of the defendant’s claim. The defendant filed a motion in limine to preclude, inter alia, the state from offering into evidence 2188 photographs of adult Asian women that the police had obtained from his external hard drive. Three of these photographs contained an image of one unidentified Asian female, who was unclothed. The remaining 2185 photographs were facial images of unidentified adult Asian women, all of whom appeared to be fully clothed. Additionally, there was no evidence as to when the defendant had downloaded these images, only that the police had obtained them in 2006, eight years after the defendant had last had physical contact with the victim. The state objected to the defendant’s motion, arguing that the photographs were relevant to show that the defendant had a sexual interest in Asian females. The court agreed with this argument and further found that the potential prejudice from the admission of these photographs was minimal. We conclude that the court abused its discretion in admitting the photographs. We further conclude, however, that the defendant has failed to demonstrate that the improper admission was harmful error.

Section 4-1 of the Connecticut Code of Evidence provides: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” As it is used in our code, relevance encompasses two distinct concepts, namely, probative value and materiality. Conn. Code Evid. § 4-1, commentary; State v. Jeffrey, 220 Conn. 698, 709, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992). “Conceptually, relevance addresses whether the evidence makes the existence of a fact material to the determination of the proceeding more probable or less probable than it would be without the evidence. ... In contrast, materiality turns upon what is at issue in the case, which generally will be determined by the pleadings and the applicable substantive law. ... If evidence is relevant and material, then it may be admissible.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Gombert, 80 Conn. App. 477, 488-89, 836 A.2d 437 (2003), cert. denied, 267 Conn. 915, 841 A.2d 220 (2004); see Conn. Code Evid. § 4-1, commentary.

“When determining admissibility, however, relevance and materiality are not the only factors. Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” (Internal quotation marks omitted.) State v. Gombert, supra, 80 Conn. App. 489, citing Conn. Code Evid. § 4-3.

In our decision in State v. Jacobson, 87 Conn. App. 440, 449, 866 A.2d 678 (2005), aff'd, 283 Conn. 618, 627, 930 A.2d 628 (2007), we determined that the trial court abused its discretion in admitting into evidence fifty-three photographs of young boys, some containing images of boys without shirts, because the photographs were not relevant or material to the issues concerning the defendant’s alleged sexual assault of male children. We explained that the photographs “did not have any direct connection with the crimes charged . . . nor were they sexually explicit . . . [and, therefore] that it was improper for the court to [have] admit[ted] those photographs into evidence.” (Citations omitted; internal quotation marks omitted.) Id.

Similarly, in examining the 2188 photographs in evidence in the present case, we conclude that they did not have a tendency to make the existence of a fact that was material to the determination of the defendant’s guilt of any of the offenses with which he was charged more probable or less probable than it would have been without the photographs and that, therefore, they were not relevant to the proceeding. See id.; Conn. Code Evid. § 4-1. The photographs had no connection to the offenses charged. Having even what might be considered an obsession with adult Asian women simply does not lead one to any reasonable conclusion that such a person would have a sexual attraction to a specific female Asian child of eleven or twelve years of age. It is not contested that these photographs contained images of adult Asian women, not female Asian children, and all but three of the photographs contained images of women appearing to be fully clothed. Furthermore, the photographs were seized by the police in 2006, and there was no evidence as to when the defendant had obtained them. We can ascertain no relevant connection between 2185 photographs of fully clothed adult women, in nonsexual circumstances, and the commission of sexual crimes against an eleven year old female child, even if the subjects of all of the photographs and the child victim were of Asian descent. Accordingly, we conclude that the court abused its discretion in admitting the photographs into evidence.

Our inquiry, however, does not end here. Because the admission of the photographs raises an evidentiary, rather than a constitutional issue, the defendant must demonstrate that the court’s improper ruling was harmful. “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... As we have . . . noted, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [0]ur determination that the defendant was harmed by the trial court’s [evidentiary ruling] is guided by the various factors that we have articulated as relevant [to] the inquiry of evidentiary harmlessness . . . such as the importance of the [evidence] in the prosecution’s case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [evidence] on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.” (Internal quotation marks omitted.) State v. Jacobson, supra, 283 Conn. 641-42.

In Jacobson, our Supreme Court agreed with our conclusion that the improper admission of fifty-three photographs of young boys was harmless in that it was unlikely that it affected the jury’s verdict. Id., 642-44; State v. Jacobson, supra, 87 Conn. App. 450. The court explained that although the photographs may have tended to demonstrate that the defendant had an interest in young boys, other evidence also demonstrated that fact. State v. Jacobson, supra, 283 Conn. 642. It further explained that the case against the defendant had been strong, the boys that he was accused of assaulting sexually had testified at trial and several constancy witnesses also had testified. Id., 643. Taken together, these facts supported our conclusion that the admission of the photographs was harmless in that there was no indication that it substantially affected the jury’s verdict. Id., 643-44.

In the present case, even if we were to agree with the defendant’s argument that the admission of the photographs, although only tending to demonstrate that the defendant had an interest in adult Asian women, might persuade the jury that he also had an interest in female Asian children, we, nevertheless, conclude that the admission of the evidence was harmless in that it was unlikely that it had any substantial effect on the jury’s verdict. The evidence in this case against the defendant was strong. Witnesses testified that the defendant had an unusual preoccupation with the specific child victim in this case and that he repeatedly found ways to be alone with her. The victim testified about the repeated sexual assaults committed by the defendant when she was a child. She also testified as to why she finally came forward with her allegations; she explained that the defendant had established a MySpace Internet account under the guise that he was a young Asian girl, and that many years after the assaults in question, he had contacted her, pretending to be this Asian girl in an attempt to see if she would agree to resume a friendship with him. She and others testified about the trauma that the defendant’s assaults had had on her throughout her young life, how she tried to keep them a secret because she believed that her family would be dishonored and she would be disowned, and how traumatic it was when the victim discovered that the young Asian immigrant girl with whom she was chatting on the Internet really was the defendant, who was attempting to reestablish a relationship with her.

We conclude, therefore, that the defendant has failed to demonstrate that the court’s improper admission of the photographic evidence was harmful in such a way as to substantially affect the jury’s verdict.

II

The defendant next claims that “the prosecutor’s comments during closing argument were improper and thus deprived the defendant of a fair trial.” He argues that “[t]he prosecutor made numerous statements to the jury during the state’s closing argument that amounted to prosecutorial [impropriety] because the prosecutor vouched for the credibility of one of the state’s key witnesses; his statements appealed to and inflamed the jury’s emotions; and, his comments distracted the jurors from making their own independent judgment based on the evidence properly before the court. ” We are not persuaded that the prosecutor’s comments were improper.

Initially, we set forth the applicable principles 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. . . .

“Prosecutorial impropriety can occur during both the cross-examination of witnesses and in the course of closing or rebuttal argument. ... In the event that such impropriety does occur, it warrants the remedy of a new trial only when the defendant can show that the impropriety was so egregious that it served to deny him his constitutional right to a fair trial. ... To prove prosecutorial [impropriety], the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the [impropriety] so infected the trial with unfairness as to make the conviction a denial of due process. ... In weighing the significance of an instance of prosecutorial impropriety, a reviewing court must consider the entire context of the trial, and [t]he question of whether the defendant has been prejudiced by prosecutorial [impropriety] . . . depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Citations omitted; internal quotation marks omitted.) State v. Long, 293 Conn. 31, 36-37, 975 A.2d 660 (2009). With these principles in mind, we now turn to the allegedly improper statements made by the prosecutor during closing and rebuttal argument.

The defendant claims that he was deprived of a fair trial due to the improper remarks of the prosecutor made during closing and rebuttal argument. Specifically, he argues that the prosecutor attempted to demonstrate to the jury that he believed the victim, especially by his repeated use of the words “I think.” He further argues that although the court added an instruction to the jury on improper vouching, the additional language was insufficient to erne the effect of the alleged impropriety. We are not persuaded.

The following additional facts are relevant to this issue. During the state’s closing argument, the defendant objected to some of the prosecutor’s argument, alleging that he was attempting to vouch for the victim’s credibility. The court stated that it would give an appropriate instruction to the jury on the issue. At the conclusion of closing arguments, out of the presence of the jury, the court and counsel for both the state and the defendant had an exchange as to whether an instruction on vouching was necessary and, if so, what it should entail. Although the court stated that it did not find that the state improperly had vouched for the victim, it was willing to give an instruction to the jury on the issue during its final charge, and it proposed the following language: “No attorney may personally vouch for the credibility of any witness. An attorney may argue, however, ways—argue why you should find a witness’ testimony truthful. To the extent you believe that an attorney has personally vouched for the credibility of any witness, you should disregard it.” The prosecutor stated that he did not agree that the additional language was necessary, but he also agreed that the statement was correct in law. The defendant specifically asked the court to add the additional language to its final jury instructions, which it did.

“We consistently have held that it is improper for a prosecuting attorney to express his or her own opinion, directly or indirectly, as to the credibility of witnesses. . . . 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. . . . Put another way, the prosecutor’s opinion carries with it the imprimatur of the [state] and may induce the jury to trust the [state’s] judgment rather than its own view of the evidence. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Citation omitted; internal quotation marks omitted.) State v. Long, supra, 293 Conn. 38. “The prosecutor, however, is not barred from commenting on the evidence presented at trial or urging the jury to draw reasonable inferences from the evidence that support the state’s theory of the case, including the defendant’s guilt. . . . We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade [it] to draw inferences in the state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand. The [prosecutor] should not be put in the rhetorical straitjacket of always using the passive voice, or continually emphasizing that he is simply saying I submit to you that this is what the evidence shows, or the like.” (Internal quotation marks omitted.) Id., 38-39.

The defendant likens the prosecutor’s use of the words “I think” in this case to the use of those same words in State v. Gibson, 114 Conn. App. 295, 309, 969 A.2d 784, cert. granted, 292 Conn. 916, 973 A.2d 1276 (2009), in which we found such use to be improper. In Gibson, the prosecutor had asked rhetorical questions of the jury and then answered those questions by making such statements as, “I think he did.” Id., 305. We concluded that such statements were expressions of personal opinion and were improper. Id., 309. The present case, however, is inapposite to Gibson.

Here, the prosecutor’s use of the words “I think” was consistently tied to the evidence or the reasonable inferences that could be drawn therefrom; the prosecutor argued such things as “I think the evidence is” or “I think the evidence shows . ...” In this case, the use of the words “I think” was similar to the use of the words “I submit” and was not improper. As our Supreme Court has explained: “Although prosecutors generally should try to avoid using phrases that begin with the pronoun I, such as I think or I believe, we recognize that the use of the word I is part of our everyday parlance and . . . because of established speech patterns, it cannot always easily be eliminated completely from extemporaneous elocution. . . . Therefore, if it is clear that the prosecutor is arguing from the evidence presented at trial, instead of giving improper unsworn testimony with the suggestion of secret knowledge, his or her occasional use of the first person does not constitute misconduct.” (Citations omitted; internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 436, 902 A.2d 636 (2006). We conclude in this case that the prosecutor’s use of the words “I think” was not improper.

The defendant also argues that the prosecutor improperly testified to the jury when he argued during rebuttal that “the defendant [was] sitting at a computer screen pretending to be somebody else, not for one chat. The only one that was put into evidence was from February 6, 2006.” The state argues that the prosecutor was asking the jury to make a reasonable inference, on the basis of the evidence, that there had been more than one communication between the defendant, posing as AnnaLuckyOne, and the victim in this case. We agree with the state. The February 6,2006 chat clearly evinced prior chats between the defendant and the victim. As such, this comment was not improper.

The defendant also argues that the prosecutor’s rhetorical questions to the jury were improper. He cites the following questions that were posed by the prosecutor during various parts of his closing and rebuttal arguments: “Why would she say that? Why would you make that up? . . . [Y]ou can’t come to any other conclusion but that he’s guilty. . . . Why would she risk bringing that shame on her parents if it wasn’t true? . . . [W]hy would you risk that if what you were saying wasn’t true? . . . Why else would she come in and say it if it wasn’t true? ... If she’s not telling the truth, then what’s the explanation for it?” (Internal quotation marks omitted.) We conclude that these comments were not improper.

Our Supreme Court “clearly has established the propriety of a prosecutor’s comments on [the motives of a witness to he], as long as the remarks are based on the ‘ascertainable motives of the witnesses rather than the prosecutor’s personal opinion.’ . . . State v. Fauci, [282 Conn. 23, 37, 917 A.2d 978 (2007)]; see also State v. Warholic, [278 Conn. 354, 365, 897 A.2d 569 (2006)] (‘the state may argue that a witness has no motive to he’); State v. Bermudez, 274 Conn. 581, 593, 876 A.2d 1162 (2005) (prosecutor properly argued that witness ‘had nothing to gain by testifying falsely’); State v. Ancona, 270 Conn. 568, 607, 854 A.2d 718 (2004) (‘[i]t is permissible for a prosecutor to explain that a witness either has or does not have a motive to lie’), cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed. 2d 780 (2005); State v. Burton, 258 Conn. 153, 170, 778 A.2d 955 (2001) (‘the state may properly argue that the witnesses had no apparent motive to lie’).” State v. Long, supra, 293 Conn. 45.

The comments made by the prosecutor in the present case simply asked the jury to use its common sense to draw reasonable inferences from the facts of the case to ascertain whether the victim had a motive to he. Such comments repeatedly have been deemed proper by our Supreme Court. See, e.g., id.; State v. Fauci, supra, 282 Conn. 37; State v. Warholic, supra, 278 Conn. 365; State v. Bermudez, supra, 274 Conn. 593; State v. Ancona, supra, 270 Conn. 607; State v. Burton, supra, 258 Conn. 170. Accordingly, we conclude that the use of such comments in this case was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that both the defendant and the state in setting forth the procedural history of this case state that the defendant was convicted of three counts of sexual assault in the first degree, one count of attempt to commit sexual assault in the first degree, two counts of risk of injury to a child pursuant to § 53-21 (1) and one count of risk of injury to a child pursuant to § 53-21 (2). The defendant’s appeal form also contains a similar error. In the interest of justice, we assume this is nothing more than a scrivener’s error. The record clearly reflects that the defendant was convicted of three counts of risk of injury to a child pursuant to § 53-21 (1) in addition to the conviction of the other listed charges.

       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 family included the female victim, her mother, her father, her older sister and her younger brother.

       The three photographs of the unclothed Asian female contain an image of a young Asian female who may or may not be of majority age. The court, however, found that because there was no evidence to indicate that the female in these photographs was not of majority age, this did not constitute uncharged misconduct on the part of the defendant. Neither the state nor the defendant contests this finding, nor does the defendant allege that the female in these photographs was a child.

       None of the 2188 photographs were identified as containing an image of the victim.

       See footnote 4 of this opinion.

       The ages of the females who appear in these photographs do not appear in the record. Neither the state nor the defendant contests the court’s finding that all of the females were adults.

       See footnote 7 of this opinion.

       We do not mean to imply that had these photographs contained images of Asian children they would have been admissible.

       We also cannot ascertain any relevance between the three photographs of an unclothed Asian woman and the repeated sexual assault of a female child of Asian descent.

       In State v. Long, supra, 293 Conn. 31, the prosecutor made, inter alia, the following statements to the jury: “You still haven’t heard the motive. If you are going to make something up, why not just say he went all the way to sexual intercourse? He made me perform oral sex on him. He made me do this, he made me do that, he made me do this. It wasn’t there. She explained the three different types of violations that were done to her by [the defendant]. And she stayed with that and gave you the details of that. If you are going to lie, why not just keep on lying and lying and lying? We didn’t hear that.” (Internal quotation marks omitted.) Id., 46. In his rebuttal, the prosecutor in Long also asked the jurors: “[I]n your own mind[s], do you think [that the victim is] clever enough to fabricate, to come up with details to fool everybody throughout the system? ... Is she going to put herself through [an embarrassing physical examination]? For what?” (Internal quotation marks omitted.) Id., 47. At the close of rebuttal argument, the prosecutor argued: “To subject herself to the physical examfination], the discussions with her mother, the discussions with the family, surely, other people that she does not know, to put herself through that, for what benefit? I haven’t heard of that. You have to ask yoursel[ves], is that because what she was telling was true?” (Internal quotation marks omitted.) Id. All of these comments were deemed proper argument by our Supreme Court. Id., 47-48.