text:
    STATE OF CONNECTICUT v. CHRISTOPHER WEINER
    (AC 18871)
    Laveiy, C. J., and Dranglnis and Daly, Js.

      Argued December 1, 2000
    officially released February 13, 2001

      William R. Moller, with whom were Jerome J. Larra-cuente, and, on the brief, Frederick D. Paoletli, Jr., for the appellant (defendant).

      Richard F. Jacobson, special assistant state’s attorney, with whom, on the brief, was Stephen J. Sedensky III, supervisory assistant state’s attorney, for the appel-lee (state).
   Opinion

DRANGINIS, J.

The defendant, Christopher Weiner, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a) and risk of injury to a child in violation of General Statutes § 53-21 (2). On appeal, the defendant claims that the trial court improperly failed to grant his (1) motion for judgment of acquittal notwithstanding the verdict with respect to the charge of risk of injury to a child, (2) motion to dismiss the charge of risk of injury to a child on the basis that the statute is unconstitutionally vague as applied to him and is, therefore, in violation of the constitutions of Connecticut and the United States, and (3) petition for a new trial. The defendant further claims that he was deprived of a fair hearing on the petition for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In February, 1997, the victim was fourteen years old and a freshman in high school. On the evening of February 7, 1997, she attended a party with her friends at a club where she was introduced to the defendant for the first time.

The victim and the defendant talked and danced together. As they continued to dance, they began kissing, and the defendant moved them further onto the dance floor. The defendant then tried to get the victim to go into the men’s rest room with him and coerced her into a small, dark storage room. At first, the victim and the defendant continued kissing, but as things progressed, the victim protested.

The defendant unbuttoned her pants and, because they were loose, her pants fell to the floor. When she bent over to pull them back up, he forced her head and shoulders down. When she was allowed to stand up, the defendant picked her up and sat her on a desk. The victim’s pants were at her knees. The defendant continued to kiss her as she was telling him to stop. He then forcibly penetrated her vagina. She told him to stop and pushed him off her. She started to head for the door, but the defendant stood in front of her and attempted to penetrate her vagina again. This time, she slid down the wall crying. While she was on the floor, the defendant took her hand and forced her to masturbate him. Afterward, he said he would be right back and left the room. The victim gathered her things and left the room, still crying.

As the victim left, she swore at the boy who had introduced her to the defendant. She then saw a friend who had accompanied her to the club. They went to the women’s rest room where the victim continued crying and related what had happened. She then drank some beer and liquor, became intoxicated and subsequently went home.

The following Tuesday at school the victim was involved in a fight with a friend of the defendant’s girlfriend when the girl called the victim a “slut” and punched the victim in the face. The school notified the victim’s mother, and, while the victim and her mother were in the vice principal’s office, the victim related the incident that had taken place at the club the preceding Friday and stated that the fight had started because the other girl thought that the victim was fooling around with the defendant.

The victim and her mother then went to Saint Vincent’s Hospital where the victim was physically examined and spoke with a police officer. She later gave the police a letter written by the defendant in which he apologized for the grief he had caused and pleaded with her family not to press charges.

Criminal charges followed. Count one of the state’s amended substitute information charged the defendant with sexual assault in the first degree by compelling another person to engage in vaginal intercourse by the use of force in violation of General Statutes § 53a-70 (a) (l); count two charged the defendant with sexual assault in the third degree by compelling another person to submit to sexual contact, namely, masturbation, by the use of force; count three charged the defendant with unlawful restraint in the second degree; and count four charged the defendant with risk of injury to a child by subjecting a child under sixteen years of age to contact with his intimate parts, namely, his penis.

At trial, several witnesses, including the victim and the defendant, testified as to the events in question. On July 13,1998, the jury returned a guilty verdict on counts two, three and four. The jury found the defendant not guilty on count one. On August 28, 1998, the court sentenced the defendant to a total effective sentence of six years imprisonment, execution suspended after three years, with ten years probation with the conditions that the defendant have no contact with the victim and attend sex offender treatment. This appeal followed.

I

The defendant first claims that the court improperly failed to grant his motion for judgment of acquittal notwithstanding the verdict with respect to count four, the charge of risk of injury to a child. The defendant argues that, in light of the testimony and evidence presented and the facts and circumstances of the case, it is legally and logically inconsistent for the jury to have found the defendant not guilty of sexual assault in the first degree, but guilty on the charge of risk of injury to a child, and, therefore, the court improperly denied his motion for judgment of acquittal notwithstanding the verdict. We reject this claim.

We must first consider the nature of directed verdicts and our standard of review. “Our Supreme Court has repeatedly stated that directed verdicts are not favored. . . . Nevertheless, the trial court has the power to set aside a jury verdict that, in its opinion, is contrary to either the law or the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. . . . The verdict should not be set aside and judgment directed if the jury could reasonably and legally have reached its conclusion.” (Internal quotation marks omitted.) Kurti v. Becker, 54 Conn. App. 335, 337, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).

“When we are requested to determine whether the jury could not legally have reached its decision, we must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. . . . [0]ur sole responsibility is to decide whether, on the evidence presented, the jury could fairly have reached the conclusion it did. . . . While the trial judge has discretion in deciding whether to grant such a motion, the decision will be overturned if it constitutes an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Outlaw v. Meriden, 43 Conn. App. 387, 391, 682 A.2d 1112, cert. denied, 239 Conn. 946, 686 A.2d 122 (1996).

A

The defendant contends that the court abused its discretion in not granting his motion for judgment of acquittal because the jury’s finding of not guilty of sexual assault in the first degree is legally inconsistent with a finding of guilty on the charge of risk of injury to a child because it indicates that the state failed to establish that the defendant subjected the victim to contact with the intimate parts of his person in a sexual and indecent manner as required by § 53-21 (2). We disagree and conclude that the verdict is not inconsistent as a matter of law.

“[Wjhere the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration. . . . If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other.” (Citations omitted; internal quotation marks omitted.) State v. Milner, 46 Conn. App. 118, 122-23, 699 A.2d 1022 (1997).

The two statutes at issue in this case clearly contain different elements. The risk of injury statute requires that the state show that the defendant subjected a child under sixteen years of age to contact with the intimate parts of his person in a sexual and indecent manner likely to impair the health or morals of the child. The fourth count of the state’s information alleged that the defendant subjected “a child under sixteen years of age to contact with his intimate parts, to wit: his penis.” The sexual assault statute, by contrast, requires a showing that the defendant compelled another to engage in sexual intercourse by the use of force or threat of force. With respect to this charge, the state alleged vaginal intercourse. Because the necessary elements of the two statutes are distinct, we conclude that the defendant’s claim that the jury’s conclusion was legally incorrect is entirely without merit.

B

Notwithstanding our well settled rule that a factually inconsistent verdict will not be overturned on appeal; State v. DeCaro, 252 Conn. 229, 243, 745 A.2d 800 (2000) (inconsistency in verdict not objectionable in itself); State v. Martin, 189 Conn. 1, 6-7, 454 A.2d 256 (trial court improperly relied on inconsistency as ground for setting aside conviction on risk of injury charge where defendant acquitted on related assault charge), cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983); State v. Morgan, 179 Conn. 617, 620 & n.2, 427 A.2d 429 (1980) (acquittal on assault charge did not require acquittal on less serious charge of reckless endangerment); the defendant further urges this court to reverse the trial court’s judgment of conviction on the charge of risk of injury to a child on the ground that the acquittal on the sexual assault charge is factually inconsistent with the conviction on the risk of injury charge.

The defendant’s claim of factual inconsistency appears to be based on his theory that the jury could not reasonably believe the victim’s testimony that the defendant forced her to masturbate him and simultaneously disbelieve her testimony that he forced her to have sexual intercourse with him. We are not persuaded.

“The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise. . . . [inconsistency of the verdicts is immaterial. ... As Justice Holmes long ago observed in the case of Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932): The most that can be said in such cases [i.e., of inconsistent verdicts] is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We inteipret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity. . . . That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” (Internal quotation marks omitted.) State v. DeCaro, supra, 252 Conn. 242-43. “Indeed, [i]t was the jury’s prerogative to act as they did and it is essential to the preservation of the right to a trial by jury that their conclusions be respected. . . . Moreover, the fact that the inconsistency may be the result of lenity, coupled with the Government’s inability to invoke review [of the acquittal], suggests that inconsistent verdicts should not be reviewable.” (Citation omitted; internal quotation marks omitted.) State v. Milner, supra, 46 Conn. App. 125. “While an inconsistent verdict is not objectionable in itself, its inconsistency may be considered insofar as it supports a claim that the jury’s conclusion was not reasonably and logically reached.” State v. Manning, 162 Conn. 112, 123, 291 A.2d 750 (1971).

We are not persuaded that the acquittal on the charge of sexual assault in the first degree supports a claim that the jury’s conclusion that the defendant was guilty of the charge of risk of injury is not reasonably and logically reached. The jury reasonably could have found that, although sexual intercourse did not occur or was not forced, the defendant forced the victim to have contact with his intimate parts, namely, his penis, by forcing the victim to masturbate him.

II

The defendant next claims that the court improperly failed to grant his motion to dismiss count four charging him with risk of injury to a child in violation of § 53-21 (2) because the statute is vague as applied to him and, therefore, violates the constitutions of the United States and Connecticut. We disagree.

We must first consider the standard of review where a claim is made that the court failed to grant a motion to dismiss. “Our standard of review of a trial court’s findings of fact and conclusions of law in connection with a motion to dismiss is well settled. A finding of fact will not be disturbed unless it is clearly erroneous. . . . [W] here 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 .... Thus, our review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Citations omitted; internal quotation marks omitted.) State v. Wiggs, 60 Conn. App. 551, 553-54, 760 A.2d 148 (2000).

“As a general rule, when a statute is attacked as void for vagueness, its validity is determined by its application to the particular facts at issue. ... In challenging the constitutionality of a statute, the defendant bears the heavy burden of establishing beyond a reasonable doubt that the statute is in fact unconstitutional. ... On appeal, a court will indulge in every presumption in favor of a statute’s constitutionality. ... If a penal statute provides fair warning, it will survive a vagueness attack. . . .

“If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness .... This court must also look to see whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding.” (Citations omitted; internal quotation marks omitted.) State v. Branham, 56 Conn. App. 395, 399-400, 743 A.2d 635, cert. denied, 252 Conn. 937, 747 A.2d 3 (2000).

The defendant’s specific constitutional claim is that because the victim’s and the defendant’s birthdays are within two years of each other, the victim had the capacity to consent to sexual activity with the defendant. He claims that § 53-21 (2) is unconstitutional because it automatically presumes that subjecting the victim to contact with the defendant’s intimate parts is likely to impair her health or morals and does not give regard to the age of the parties, specifically, whether the victim was capable of consenting to the contact. The defendant further argues that the purpose of § 53-21 (2) is “to protect young, innocent minors from corrupt, manipulative adults,” not to subject sixteen year old defendants to the same consequences that “defendant[s] two, three or four times [his] age” would face were they also convicted of risk of injury to a child. The defendant mischar-acterizes the purpose of the statute.

“It is well settled that § 53-21 proscribes two general types of behavior likely to injure physically or impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.” (Internal quotation marks omitted.) State v. Jason B., 248 Conn. 543, 567, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999). A myriad of cases provide notification to potential offenders that subjecting or perpetrating acts on an unwilling victim under the age of sixteen is prohibited. In re John C., 20 Conn. App. 694, 696, 569 A.2d 1154 (1990); see also State v. Perruccio, 192 Conn. 154, 162, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984), citing State v. McCall, 187 Conn. 73, 444 A.2d 896 (1982); State v. Shaw, 186 Conn. 45, 438 A.2d 872 (1982); State v. Smith, 183 Conn. 17, 438 A.2d 1165 (1981); State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980); State v. Manning, supra, 162 Conn. 112; State v. Gelinas, 160 Conn. 366, 279 A.2d 552 (1971); State v. Anderson, 152 Conn. 196, 205 A.2d 488 (1964); State v. Dennis, 150 Conn. 245, 188 A.2d 65 (1963); State v. Coulombe, 143 Conn. 604, 124 A.2d 518 (1956); State v. Silver, 139 Conn. 234, 93 A.2d 154 (1952). Moreover, as we stated in In re John C., “[General Statutes §] 53-21 provides that ‘any person’ who engages in the proscribed conduct is in violation of the statute.” (Emphasis added.) In re John C., supra, 696.

We conclude that the defendant in this case had notice that forcing a fourteen year old to perform a sexual act on him, namely, forcing her to masturbate him, is an act “directly perpetrated on the person of the minor injurious to [her] moral or physical well-being.” (Internal quotation marks omitted.) State v. Jason B., supra, 248 Conn. 567.

The defendant further relies on State v. Perruccio, supra, 192 Conn. 154, to support the proposition that the statute is vague as applied to him because he was less than two years older than the alleged victim and was not on notice that sexual acts with a person under age sixteen who consented to those acts are proscribed by § 53-21. The defendant’s reliance, however, is misguided. In Perruccio, our Supreme Court held that “ [w]hen a person legally capable consents to or initiates sexual contact and activity, the case law and statute itself provide no fair warning or notice of statutory prohibition.” Id., 165. The court ordered a new trial because the jury was not instructed that consent was a defense to the risk of injury charge and because the facts of that case were open to the interpretation that the victim did in fact consent to sexual activity with the defendant. Id., 165-66. In the present case, however, the court instructed the jury that it could not find the defendant guilty of risk of injury to a child unless it found that the victim did not consent to contact with the defendant’s penis. Because the jury found the defendant guilty, we conclude that the act was noncon-sensual and that the statute is, therefore, not vague as applied to the defendant.

Ill

The defendant’s next claim is that the court improperly denied his petition for a new trial. He claims that the existence of new evidence, specifically, testimony of witnesses unknown at the time of trial, requires a new trial in the interest of justice. We reject the defendant’s claim.

The following additional facts are necessary for our resolution of this claim. During the hearing on the petition for a new trial, the defendant presented as a witness, B, a sixteen year old student at the victim’s high school, who testified that after the incident at the club, the victim spoke with her and told her that she had not been raped. B did not contact authorities, however, until after the trial. Also, after the trial, B mentioned to the defendant’s girlfriend that she knew something about the case. Another witness, J, testified that at a pool party, the victim stated that she lied about the incident, while a third witness, D, testified that at a party in 1997, the victim admitted that she lied about what the defendant had done to her.

The state presented evidence that the victim was not friends with B. Specifically, two witnesses testified that they were close friends with the victim and that they never heard the victim mention B’s name. The victim’s mother also testified that she never heard of B. The victim herself testified that she did not know B and never spoke with her about the incident. Defense counsel argued that B had inscribed the victim’s high school yearbook, imputing “friendship.” That claim, which was before the court on the motion, in conjunction with the other evidence adduced, was rejected.

“Connecticut has long recognized petitions for new trials based on newly discovered evidence. . . . The modem standard, or an equivalent formulation, adopted by a majority of state and federal courts for granting such a petition is based on the landmark case of Berry v. State, 10 Ga. 511 (1851). Connecticut adopted this general standard as early as 1880 in Hamlin v. State, 48 Conn. 92, 93 (1880), and has since applied it in a long line of cases. . . . Under this standard, a new trial is granted if the petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence (1) is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence, (2) would be material on a new trial, (3) is not merely cumulative, and (4) is likely to produce a different result in a new trial. ... In analyzing the foregoing factors, trial courts are guided by the general principle that a new trial should be granted because of newly discovered evidence only if an injustice was done or it is probable that on a new trial a different result would be reached. . . . The scope of review of a trial court’s decision to grant a new trial on the basis of newly discovered evidence is limited to whether the trial court abused its discretion.” (Internal quotation marks omitted.) Channer v. State, 54 Conn. App. 620, 626-27, 738 A.2d 202, cert. denied, 251 Conn. 910, 739 A.2d 1247 (1999). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Id., 628-29.

“This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered it is to be considered final . . . and should be left undisturbed by post-trial motions except for a good and compelling reason.” (Internal quotation marks omitted.) Gray v. State, 51 Conn. App. 689, 692, 725 A.2d 364 (1999).

In this case, in a well reasoned memorandum of decision, the court found that the defendant failed to show by a preponderance of the evidence that a new trial should be granted. In particular, the court found that the new evidence presented was not likely to produce a different result. We agree with the judgment of the trial court.

At a new trial, each new witness would have offered testimony that would have impeached the victim’s testimony. “Only under most exceptional circumstances, even in a capital case, could a witness’ testimony be so important and influential that a court could, within the limits of a sound discretion, determine that new evidence merely impeaching the witness’ credibility would probably produce a different result. . . . The rule restricting the right to a new trial when one is claimed on the basis of newly discovered evidence merely affecting the credibility of a witness is necessary because scarcely has there been an important trial, with many witnesses, where [after the trial] diligent search would not have discovered evidence [to impeach the character of] some witness on the trial.” (Internal quotation marks omitted.) State v. Edwards, 10 Conn. App. 503, 515-16, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987).

In this case, the court found that a cross-examination of the new witnesses would have undermined their credibility and the weight that would be given to their testimony. For instance, B was close friends with the defendant’s girlfriend, met the defendant several times over the past year and double-dated with the defendant and his girlfriend on at least one occasion, but never came forward with her story until after the trial, even though she knew that the defendant was arrested in 1997. Her testimony would be further undermined because the victim’s supposedly confidential statement to B that she lied about the defendant occurred in a lavatory at school filled with ten or twelve other people. Evidence also would suggest that B was not friends with the victim and was, therefore, an unlikely confidant.

Likewise, J would have testified that the victim told him that “the story is not completely true.” Although J’s testimony would raise some doubt in the minds of jurors, the court concluded that it is unlikely that the jury would give it great weight because the statement was so vague and, incredibly, was never brought to the defendant’s attention until much later. D also would have testified that the victim told him that it was a lie, but that he, despite being at least an acquaintance of the defendant, failed to come forward until after the trial. Furthermore, evidence indicated that both J and D had poor relationships with the victim’s family, which suggested that they would be biased against the victim. The court further noted that the victim appeared credible because she consistently presented the same version of the facts throughout the proceedings and that the jury so found her.

The trial judge in this case presided at the trial and at the hearing on the petition for a new trial and was, therefore, in the unique position to assess whether a new trial would produce a different result. Under these circumstances and giving every reasonable presumption in favor of its action, we conclude that the court reasonably could have found that the new evidence presented would likely not produce a different result. The court, therefore, properly found that justice did not require a new trial and did not abuse its discretion in denying the defendant’s petition for a new trial.

rv

The defendant’s final claim is that he was not given a fair hearing on the petition for a new trial. Specifically, he claims that (1) the prosecution overzealously attacked the credibility of several witnesses resulting in a misconception by the court as to the scope of its power in granting a new trial, and, as a result, the court improperly considered the credibility of the witnesses, which is a matter reserved for the jury, and (2) the social atmosphere in Fairfield County as a result of the Alex Kelly sexual assault trial made it impossible for any male wrongly accused of sexual assault to be acquitted. We are not persuaded.

The defendant’s first claim of error is muddled. In support of his claim of prosecutorial misconduct, the defendant refers to several excerpts from the trial transcript where the court sustained some of the prosecution’s objections and refers to various exceptions to the hearsay rule, including the spontaneous utterance exception and the effect on the listener exception. Thus, although couched in terms of prosecutorial misconduct, his argument appears to challenge the court’s eviden-tiary rulings, rather than any particular actions on the part of the prosecution. We do not see how these rulings by the court relate to the defendant’s claim of overzealous conduct and decline to address these claims of misconduct.

The defendant further directs us to excerpts where the prosecution cross-examined witnesses and claims that the prosecution intimidated the witnesses. He claims that in its closing argument, the prosecution “continues the denunciation of honest, intelligent students attempting to prevent injustice [and] attempts character assassination over a complainant that blithely under oath states that she never in her life had a conversation with [B].” He further argues that the prosecution improperly argued that the defendant “met [the victim] serendipitously at [the club] and within almost a matter of minutes of [meeting] you were insisting on an intimate contact with the victim, much to her surprise and much to her rejection.”

It is well established that “[t]he burden [falls] on the defendant to demonstrate that the remarks [made by the prosecution] were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Internal quotation marks omitted.) State v. Briley, 55 Conn. App. 258, 263, 739 A.2d 293, cert. denied, 251 Conn. 927, 742 A.2d 363 (1999). The defendant has failed to meet his burden. In fact, the defendant fails to provide this court with anything more than a recitation of the prosecution’s questions, the witnesses’ responses and one quote from the prosecution’s closing argument. Nor has the defendant provided this court with a single citation to the appropriate authority or with a legal analysis that would translate these recitations from the transcript into a claim of prosecutorial impropriety. We repeatedly have held that nothing more than bare statements of error will not be reviewed by this court. Burke v. Avitabile, 32 Conn. App. 765, 772, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993).

The defendant further appears to claim that the court improperly considered the credibility of the witnesses in determining whether a new trial would produce a different result. We again note the defendant’s failure to address this claim adequately; notwithstanding, our review of the court’s memorandum of decision indicates that the court fully understood its role in considering the petition for a new trial.

The defendant’s claim that he was deprived of a fair hearing due to the atmosphere following the Alex Kelly case is likewise unsupported by legal argument. Moreover, if the defendant was concerned that he could not receive a fair trial, he should have moved for a transfer of prosecution to another court location. See Practice Book § 41-23 (1). Having failed to do so, the defendant waived his right to such a pretrial request. See Practice Book § 41-4.

We conclude that the court correctly stated the standard for determining whether to grant a petition for a new trial and properly applied each of its four prongs. We, therefore, see no reason to conclude that the defendant was deprived of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person . . . .”

       General Statutes § 53a-96 (a) provides: “A person is guilty of unlawful restraint in the second degree when he restrains another person.”

       General Statutes § 53-21 provides in relevant part: “Any person who . . . (2) has contact with the intimate parts, as defined in 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 a class C felony.”

       The letter provided: “I am writing this letter to apologize for any grief I have caused your family. I would like to tell you this in person, but in respect to your family I did not think you wanted to see me, so I am writing this letter. From my knowledge you are thinking of taking legal actions against me. I would like you to know how sorry I am and I know how serious this is. I would like you to know that if I am convicted of the charges you plan to [charge] me with ... I may spend time in jail be kicked off the football and wrestling teams. I also plan on going to college and if convicted I do not think I will be able to. [Therefore] I would like you to reconsider pressing charges, because I am very sorry and don’t want to pay for the mistakes I malee now for the rest of my life.
      “My Deepest Regrets “Chris Weiner”

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       The court’s instruction to the jury, with respect to the risk of injury charge, provided in relevant part: “The focus is on whether the act was likely to impair the morals of the victim. In this case, the alleged victim was fourteen years old at the time of the incident in question, and the defendant claims that she consented to the sexual conduct which the state claims is the act perpetrated on her person likely to impair her morals. In this situation, where the alleged victim was age fourteen at the time in question, if she in fact consented to the sexual conduct the law provides that her consent is a defense. You must determine whether the victim consented to the sexual conduct involved. And such consent, however, in order to constitute a defense must have been freely and voluntarily given by her and not have been simply acquiescence induced by fear or shock or the product of coercion or the overpowering of her will by the defendant. ... As the charge of risk of injury to a minor the consent of the victim as a defense . . . and to find the defendant guilty of risk of injury to minor you must be satisfied beyond a reasonable doubt that the victim did not consent to the defendant subjecting her to contact with his penis.”

       To determine whether the evidence would be likely to produce a different result if a new trial were granted, it was necessary for the court to consider the credibility of the witnesses to determine whether it was probable that the testimony of those witnesses would result in a different verdict had a new trial been ordered. See, e.g., Lombardo v. State, 172 Conn. 385, 392-93, 374 A.2d 1065 (1977) (trial court notpersuaded that new witness’ exculpatory testimony credible enough to result in different verdict); Taborsky v. State, 142 Conn. 619, 631, 116 A.2d 433 (1955) (new trial required where new evidence indicated that key witness, without whose evidence accused could not have been convicted, was insane at time of trial); State v. Edwards, supra, 10 Conn. App. 516 (trial court properly denied petition for new trial where only new evidence was disputed testimony of defendant’s sister claiming that state’s witness recanted testimony).


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    TOWN OF SOUTHINGTON v. COMMERCIAL UNION INSURANCE COMPANY
    (AC 18088)
    Landau, Sehaller and Dupont, Js.
    Submitted on briefs October 18, 2000
    officially released February 13, 2001

      Bradford R. Carver, Adam G. Cohen and James J. Mercier filed a brief for the appellant (defendant).

      Marjorie S. Wilder, Thomas A. Rouse and Talbot A. Welles filed a brief for the appellee (plaintiff).
   Opinion

LANDAU, J.

Our Supreme Court remanded this appeal concerning an action on a subdivision surety bond (bond) to this court to resolve the remaining claims of the defendant, Commercial Union Insurance Company. Southington v. Commercial Union Ins. Co., 254 Conn. 348, 369, 757 A.2d 549 (2000). In addition to those claims that the defendant raised in its original appeal to this court, our Supreme Court has directed this court to resolve another issue, i.e., “whether the plaintiff, [the town of Southington] which acquired the property through foreclosure, was precluded from calling the bond because it had become, in effect, a successor developer of the subdivision.” Id., 356 n.6. Although many of the issues on remand are not related to whether the plaintiff was a successor developer, we decline to address any of those issues until the trial court has decided the issue identified by our Supreme Court. We therefore remand the case to the trial court for a factual determination of whether the plaintiff “had become, in effect, a successor developer of the subdivision.” Id.

The facts and procedural history are not in dispute. “The [plaintiff] brought an action against the defendant for payment under a performance bond that the defendant had posted as surety. Michael J. Martinez was the president, sole director and sole shareholder of A.M.I. Industries, Inc. (AMI). In 1988, AMI applied to the [plaintiffs] planning and zoning commission (commission) for approval of an industrial subdivision in the town on Captain Lewis Drive. At the time, the real property was owned by Southington Land Associates, Inc. (SLA). On October 4,1988, the commission approved the application subject to AMI’s furnishing a $590,000 subdivision or public improvement bond.

“On November 1, 1988, Martinez, as principal, and the defendant, as surety, executed a subdivision bond for the real property, and on February 9,1989, SLA sold the property to MJM Land Investments, Inc. (MJM). Martinez was the president and sole stockholder of MJM. By April, 1995, Martinez, AMI and MJM had failed to complete the improvements required under the subdivision approval. The [plaintiff] informed the defendant that the subdivision had not been completed and that if it was not completed by October 3, 1995, the [plaintiff] would have to call the bond. Martinez declared personal bankruptcy and the [plaintiff] purchased the real property in a foreclosure auction on June 27, 1995. None of the lots in the subdivision was sold prior to the expiration of the subdivision application.

“When the defendant refused to pay the money that the [plaintiff] claimed under the bond, the [plaintiff] commenced suit alleging, in its amended complaint, breach of contract and negligence and, in the alternative, promissory estoppel and identity/unity of interest, seeking damages of $175,000 to complete the subdivision improvements. The trial court rendered judgment in favor of the [plaintiff] on the breach of contract and negligence counts of the complaint.” (Internal quotation marks omitted.) Southington v. Commercial Union Ins. Co., supra, 254 Conn. 354-56, quoting Southington v. Commercial Union Ins. Co., 54 Conn. App. 328, 330-31, 735 A.2d 835 (1999), rev’d, 254 Conn. 348, 757 A.2d 549 (2000). The defendant appealed to this court.

This court reversed the judgment of the trial court on the basis of just one of the issues that the defendant raised on appeal. The plaintiff appealed to our Supreme Court, which reversed the judgment of this court and remanded the case to us for further consideration. See Southington v. Commercial Ins. Co., supra, 254 Conn. 369.

In its memorandum of decision, the trial court did not make findings of fact related to the issue on remand, i.e., whether the plaintiff is a successor developer, although both parties acknowledged in their original briefs to this court that the town had purchased the subdivision in a foreclosure auction for economic development. The court did not make factual findings concerning the purpose and scope of the plaintiffs economic development of the subdivision. More specifically, the court did not determine the time, place, manner and circumstances under which the plaintiff purchased the subdivision, nor did it make other relevant factual determinations such as, but not limited to, the plaintiffs expenses and profits, and whether the plaintiff was a successor developer of the subdivision.

It is well established that appellate courts are not triers of fact and rely on the trial court’s findings and conclusions related thereto. New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 609, 717 A.2d 713 (1998); Karp v. New Britain, 57 Conn. App. 312, 316, 748 A.2d 372 (2000); Perkins v. Fasig, 57 Conn. App. 71, 79, 747 A.2d 54, cert. denied, 253 Conn. 925, 754 A.2d 797 (2000). We therefore are unable to address the issue raised by our Supreme Court, and remand the case to the trial court to make the factual findings and conclusions necessary for our review of whether the plaintiff was precluded from calling the bond because it had become, in effect, a successor developer of the subdivision.

The case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The following claims of the defendant remain unresolved: “[T]hat the trial court improperly (1) failed to [conclude] that the town violated its statutory and regulatory obligations thereby prejudicing the defendant and discharging its surety obligation because the trial court (a) did not conclude that the town, as a successor in interest, was required to provide a substitute bond, (b) did not conclude that the defendant was prejudiced by the town’s failure to give it timely notice of the breach of contract; (2) failed to apply the law of the case to the count sounding in contract; (3) failed to conclude that the town had not met its burden of proof on the contract and negligence claims; and (4) awarded damages because it failed to conclude (a) that the town was required to complete the subdivision improvements before making a claim, (b) that the defendant was entitled to a refund for funds not expended by the town, (c) that the town’s proof was insufficient in that it did not establish the date of the breach and the cost of completing the improvements on that date, (d) that for equitable reasons, pursuant to General Statutes § 52-238 (a), no damages were due the town and (e) that the town’s evidence of the cost of completing the improvements was speculative.” Southington v. Commercial Union Ins. Co., 54 Conn. App. 328, 330 n.2, 735 A.2d 835 (1999), rev’d on other grounds, 254 Conn. 348, 757 A.2d 549 (2000).


author: PER CURIAM.

text:
    FRANK A. PERRELLI v. ALAN WITKIN
    (AC 20971)
    Foti, Dranginis and Daly, Js.
    Submitted on briefs January 12
    officially released February 13, 2001

      Frank A. Perrelli, pro se, the appellant (plaintiff), filed a brief.

      Thomas M. McKeon filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Frank A. Perrelli, appeals from the judgment of the trial court dismissing his action for damages for his failure to post a bond in recognizance in the amount of $250 within thirty days of the order of the court.

The order to post the bond was entered on August 10, 1999. The plaintiff posted the required bond on August 18, 1999, within the thirty day period allowed by the court. Thereafter, the defendant moved to dismiss the action, claiming that the bond had not been posted. The court granted the defendant’s motion on October 18,1999. The record discloses that the plaintiff complied with the court’s order and that an inadvertent ministerial error led to the dismissal of the action. We, therefore, reverse the judgment of the trial court dismissing the action and order that the matter be restored to the docket.

The judgment is reversed and the case is remanded with direction to restore the case to the docket.

       See Practice Book § 8-6.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. KATHY RIVERA
    (AC 18695)
    Foti, Dranginis and Dupont, Js.
    Argued November 27, 2000
    officially released February 13, 2001

      Richard A. Reeve, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Kathy Rivera, appeals from the judgment of conviction, rendered after a jury trial, of two counts of conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-48 and 53a-92 (a) (1) (A). The defendant claims that the prosecutor made certain improper comments during his closing arguments to the jury that deprived her of her constitutional right to a fair trial. We disagree with the defendant’s claims and affirm the judgment of the trial court.

From the evidence presented at trial, the jury reasonably could have found the following facts. The defendant and the victim, Quintina Texidor, knew one another in high school and socialized. Sometime after midday on February 25, 1997, the victim, her two year old daughter and the defendant were at the victim’s house in Hartford watching television. At the defendant’s suggestion, the victim and her daughter accompanied the defendant to her home in West Hartford. The defendant drove them to her house in her Cadillac automobile.

Upon entering the defendant’s house, the defendant grabbed the victim’s daughter from the victim’s arms and took her somewhere upstairs in the house. Two men came into the first floor from the basement of the house. The victim later identified the men, both of Jamaican descent, as “Patrick” and “Dred.” Patrick grabbed the victim by the neck and told her that she had something that belonged to him. The men took her to the living room and repeatedly told her that she had a package containing fifteen pounds of marijuana that belonged to them. The victim denied having the package.

At that point, the defendant left the victim’s daughter upstairs and came to the living room. The defendant called the victim’s boyfriend, Ismael Sanchez, told him that she had his daughter and his girlfriend, and said, “Please tell me you got eight Gs or I’m gonna let them take her to the Bronx and kill her, do whatever they want with her.” The defendant’s boyfriend, Carmelo Rivera, arrived at the house. He and the defendant argued in Spanish in the kitchen. The victim understood their argument and testified that Carmelo Rivera wanted the defendant to settle the dispute, but that the defendant wanted to proceed with the scheme and handle things her way. At one point, Carmelo Rivera called Sanchez and said, “It’s not me. They want the money.” The defendant grabbed the telephone from Carmelo Rivera and told Sanchez, “Yo, just get the money. Yo, you got a daughter. I keep telling you they gonna take her. You ain’t never gonna see them again.”

Patrick and Dred later led the victim into a car outside the defendant’s house. The victim’s daughter remained, screaming and crying, with Carmelo Rivera at the defendant’s house. While Dred pointed a gun at the victim in the backseat of the car, Patrick drove and the defendant rode in the passenger seat of the car. The four individuals traveled around for several hours. The defendant smoked marijuana and laughed while in the car; she acted “like everything was a joke to her.”

During the afternoon, the defendant repeatedly spoke with Sanchez by telephone and demanded money from him. Patrick eventually drove to a shopping center in Bloomfield and met with Carmelo Rivera. At that time, the defendant exited the car, got into Carmelo Rivera’s car and drove away. Carmelo Rivera informed Patrick that the police were involved and that they should release the victim. The men took the victim to the Hartford train station and threatened to come after her if anything happened to the defendant or to Carmelo Rivera. The victim’s daughter already had been returned to the victim’s home.

Sanchez had reported the matter to the police shortly after the defendant called him and demanded money. The police first visited the defendant’s home to investigate the dispute. The police did not find anyone connected to the incident at the defendant’s home. After the victim returned home, she filed a formal written statement that led to the defendant’s arrest and prosecution.

On appeal, the defendant claims that several portions of the prosecutor’s closing arguments to the jury infringed on her right to a fair trial. Specifically, the defendant claims that the prosecutor improperly (1) attacked the ethics and conduct of defense counsel, (2) relied on evidence that had been admitted only against another defendant who no longer was on trial, (3) vouched for the credibility of the state’s key witness, (4) expressed his belief that the defendant had lied during her testimony, (5) urged the jury to draw infer-enees on the basis of impermissible speculation and prejudicial stereotypes, and (6) suggested to the jury that if it found the defendant not guilty, it would be “violating] the law.”

We will address each of the defendant’s claims of impropriety in turn and set forth additional facts as they become necessary in the context of her claims.

I

During his rebuttal argument to the jury at the conclusion of the trial, the prosecutor responded to defense counsel’s closing argument to the jury. The prosecutor noted that defense counsel’s comments concerning the innocence of the defendant or the credibility of witnesses constituted “unprofessional conduct and it so states in the mies of practice.” After the prosecutor concluded his argument, the court dismissed the jury for the weekend. After the jury’s departure, defense counsel made an oral motion for a mistrial. Defense counsel’s motion rested solely on his objection to the prosecutor’s comment that he had violated the Rules of Professional Conduct in his closing argument. Following a brief hearing on the issue, the court denied the defendant’s motion, noting that the comment did not “reach the severity level that would require a mistrial . . . .’’On the next day of trial, a Monday, the defendant, out of the jury’s presence, renewed her motion for a mistrial, reiterating that the prosecutor had directed the comments at defense counsel for the sole purpose of convicting the defendant. The court permitted defense counsel to file a written motion for a mistrial and additional requests to charge the jury that included an instruction concerning the comments the prosecutor made about defense counsel to the jury.

The court again denied the defendant’s motion for a mistrial. The court indicated to counsel that it would provide a curative instruction to the jury and discussed with counsel the substance of the court’s proposed curative instruction. The court also considered defense counsel’s comments regarding its curative instruction. When the jury entered the courtroom, the court instructed it to disregard that portion of the state’s rebuttal argument that alleged unprofessional conduct by defense counsel. At a later point in the charge, the court again instructed the jury that the arguments of the attorneys did not constitute evidence in the trial. At the conclusion of the court’s instructions to the jury, defense counsel did not take exception to any of those relevant portions of the court’s charge. The defendant now claims that although the court denied her motion for a mistrial, the court’s curative instruction did not cure the prejudice the prosecutor’s rebuttal argument caused and that the argument deprived her of her right to a fair trial. We will review this claim because the defendant at trial raised the need for a mistrial and adequately preserved for review her claim that the court improperly refused to grant her motion for a mistrial.

“When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury. . . . [B]y reason of his [or her] office, [a prosecutor] usually exercises great influence upon jurors. His [or her] conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because [a prosecutor] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.” (Internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 336, 746 A.2d 761 (2000).

“Prosecutorial misconduct may . . . occur in the course of closing argument. . . . Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact. . . . State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . Id., 539-40.” (Internal quotation marks omitted.) State v. Heredia, 253 Conn. 543, 561, 754 A.2d 114 (2000).

“[T]o determine whether claims of prosecutorial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant. State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989). State v. Garrett, 42 Conn. App. 507, 515-16, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996). To make this determination, we must focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case. State v. Williams, 41 Conn. App. 180, 190, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996). State v. Garrett, supra, 516.” (Internal quotation marks omitted.) State v. Forde, 52 Conn. App. 159, 172, 726 A.2d 132, cert. denied, 248 Conn. 918, 734 A.2d 567 (1999).

“When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial. . . . The trial court’s ruling is entitled to weight because of the vantage point from which it can observe and evaluate the circumstances of the trial. The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful. . . . [T]he trial court’s determination that the prosecutor’s remarks did not require a new trial must be afforded great weight.” (Citation omitted; internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 353, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). “The general principle is that a mistrial should be granted only as a result of some occurrence on the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial. . . . [T]he trial judge is the arbiter of the many circumstances which may arise during a trial . . . [and] [t]he trial court has a wide discretion in passing on motions for mistrial.” (Citations omitted; internal quotation marks omitted.) State v. Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980).

Scrutiny of a challenged remark made during closing arguments to the jury, therefore, does not occur in a vacuum; an appellate court examines such remarks in light of the entire trial. In the present case, we cannot say that the defense counsel’s argument did not invite, to some extent, the prosecutor’s argument to the jury. Our review of the record reveals that defense counsel’s arguments to the jury took a similarly personal tone and that the prosecutor properly objected to portions of the argument several times. Rather than referring to the “state’s case,” defense counsel addressed the prosecutor personally in his argument. At one point, he referred to the prosecutor, stating, “one other thing and then I’ll be finished with [the prosecutor]—he’ll have his chance to get back at me.” Defense counsel at least implied several times in his argument that the prosecutor was trying to pull something over on the jury by putting a “spin” on the evidence in the case. The record also reveals that defense counsel interjected his opinions about the evidence by telling the jury that it would have a “very easy decision” in acquitting the defendant on the second count. The tone of defense counsel’s closing argument lessened the “prejudicial impact” of the prosecutor’s comment. See State v. Falcone, 191 Conn. 12, 23-24, 463 A.2d 558 (1983).

Although the prosecutor’s comment was inappropriate, the comment was neither severe nor part of a recurring line of argument. We also must examine the prosecutor’s remark in the context of his entire closing argument. Immediately preceding the comment, the prosecutor responded to the tone of defense counsel’s argument by stating to the jury, “I don’t want it to boil into a vendetta between the two of us because I’m not going to play that game . . . .” The prosecutor tempered any prejudice that he could have caused the defendant by next remarking that “[n]o opinion in this court amounts to one hill of beans except yours: [N]ot mine; not [defense counsel’s].” The argument also did not relate to a specific critical issue in the case.

Moreover, in light of the strength of the state’s case, we cannot say that the prosecutor’s remark improperly influenced the jury. Although the state’s case rested to a large extent on the credibility of the victim’s account, the state corroborated the victim’s account by offering Sanchez’s testimony that the defendant repeatedly called him on the telephone and demanded money.

The court determined that the prosecutor’s remark did not to rise to the level of improper argument so as to require the granting of a motion for a mistrial. The court concluded that its instruction concerning the arguments of the attorneys would adequately remove any prejudice to the defendant caused by the comment. As we previously noted, that decision is afforded great weight. The court also gave a curative instruction at the earliest practicable time in the proceedings. The court’s instruction reminded the jury of the prosecutor’s argument about unprofessional conduct, informed the jury that the prosecutor’s argument was not proper, and instructed the jury to “completely disregard that portion of the rebuttal argument by the state and not consider it in any way in your deliberations in this case.”

The primacy of the instruction in the context of the court’s charge, and its meaning “sufficiently and forcefully directed the jury’s attention to its obligation not to consider that argument.” State v. Lasky, 43 Conn. App. 619, 629, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997). The court later instructed the jury that it must base its decision on the evidence presented alone and that the lawyers’ arguments do not constitute evidence. In the absence of an indication to the contrary, we presume that the jury followed the instructions given to it by the court. State v. Mills, 57 Conn. App. 202, 212, 748 A.2d 318, cert. denied, 253 Conn. 914, 915, 754 A.2d 163 (2000). After the court instructed the jury, “[d]efense counsel did not object or except to this charge or claim that it was inadequate to offset the prosecutor’s remarks. We conclude that the prosecutor’s remarks were not so prejudicial as to render the curative instruction ineffective.” (Internal quotation marks omitted.) State v. Boone, 15 Conn. App. 34, 54, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988). Although the defendant preserved her claim regarding a mistrial, she waived any claim regarding the adequacy of the court’s curative instruction. “In order [properly] to . . . preserve for appeal a claimed error in the trial court’s charge to the jury, a party must take an exception when the charge is given that distinctly states the objection and the grounds therefor.” State v. Miller, 186 Conn. 654, 657, 443 A.2d 906 (1982). Any challenge, at that point, to the adequacy of the curative instruction or that the court improperly instructed the jury on this issue was waived. See State v. Clark, 48 Conn. App. 812, 829, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998).

The defendant’s reliance on State v. Alexander, 50 Conn. App. 242, 718 A.2d 66 (1998), rev’d in part, 254 Conn. 290, 755 A.2d 868 (2000), in support of her claim that improper comments during closing arguments deprived her of a fair trial is misplaced. In Alexander, we held that certain comments by the prosecutor during closing arguments concerning the defendant’s right to be present during trial, the prosecutor’s personal opinions about the case, arguments about facts not in evidence, and appeals to the passion and emotions of the jury deprived the defendant of his right to a fair trial. In Alexander, however, we concluded that the defense counsel did not in any way invite the comments, the prosecutor frequently made inappropriate comments during his argument, the comments directly addressed a critical issue in the case, the state did not present a particularly strong case and, importantly, the court did not adopt curative instructions to alleviate the potential that the comments prejudiced the defendant.

In the present case, even if we were to consider, as the defendant suggests, the prosecutor’s remark along with the defendant’s other unpreserved claims of inappropriate comments by the prosecutor, we cannot say that in the context of the entire trial; see State v. Rolli, 53 Conn. App. 269, 279, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999); that the defendant met her burden of proving that the argument deprived her of a fair trial. The fact that all of the defendant’s claims focus on allegedly prejudicial remarks made only during closing argument demonstrates that such comments were not a pervasive quality of the entire proceeding. See, e.g., State v. Kenney, 53 Conn. App. 305, 324-25, 730 A.2d 119, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999).

II

The defendant next claims that the prosecutor, during his closing argument, improperly vouched for the victim’s credibility and that this deprived her of a fair trial. The defendant did not object to that statement during trial and seeks review of the remark pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We review the claim because the record is adequate for review and the claim is of constitutional magnitude. We, however, do not find that the prosecutor’s comments in this regard clearly deprived the defendant of a fundamental right.

It is well settled that “[a] prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses . . . .” (Internal quotation marks omitted.) State v. Turner, 252 Conn. 714, 726, 751 A.2d 372 (2000). “Such expressions of personal opinion are a form of unsworn and unchecked testimony. . . . These expressions of opinion are particularly difficult for the jury to ignore because of the special position held by the prosecutor. . . . The jury is aware that he has prepared and presented the case and consequently, may have access to matters not in evidence . . . which the jury may infer to have precipitated the personal opinions.” (Internal quotation marks omitted.) State v. Chasse, supra, 51 Conn. App. 366. “Theprosecutor may, however, argue to the jury that the evidence and the reasonable inferences to be drawn therefrom should lead the jury to a conclusion as to the credibility of witnesses.” (Emphasis in original; internal quotation marks omitted.) State v. Sherman, 38 Conn. App. 371, 396, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995).

We are well aware that counsel is afforded “generous latitude” when arguing to the jury. (Internal quotation marks omitted.) State v. Chasse, supra, 51 Conn. App. 358. In the present case, the fact that the prosecutor couched his comment in terms more appropriately characterizing the jury’s function of gauging credibility of witnesses lessens the comment’s prejudicial impact. When read in its context, the prosecutor’s statement lacked the characteristics of vouching. Rather, his argument conveyed the message that if the jury believes the victim then the state has proven the elements of the crimes. It seems somewhat obvious that the prosecutor would also implicitly argue that the jury should believe the victim. While we would expect more artful language choice and the absence of the personal pronoun “I,” we cannot say that this argument suggested that the prosecutor either “personally guaranteed the witness’ credibility” or that he “implied that he had knowledge of the witness’ credibility outside the record.” State v. Hicks, 56 Conn. App. 384, 392, 743 A.2d 640 (2000). We also conclude that the court’s instruction to the jury that it had the task of finding facts in the case and judging credibility mitigates against a determination that the comment affected the fairness of the trial. See State v. Smith, 49 Conn. App. 252, 265, 714 A.2d 1243, cert. denied, 247 Conn. 914, 722 A.2d 809 (1998); State v. Sherman, supra, 38 Conn. App. 398. This also is not a case in which impermissible vouching recurred frequently during the trial. See State v. Williams, supra, 204 Conn. 541. For those reasons, the defendant has failed to establish that a constitutional violation clearly exists that deprived her of a fair trial.

Ill

The defendant claims that the prosecutor, during his closing argument to the jury, resorted to “prejudicial racial and class based stereotyping to urge the jury to draw an inference which was not supported by any evidence, namely that [the defendant] was ‘in the drug business.’ ” The defendant argues that the prosecutor supported the argument by referring to her young age, the type of car she drove, where she lived, her marijuana use and her marriage to a “young Spanish man.” The defendant seeks Golding review of her claim because she failed to preserve it by raising an objection during trial. We will review the claim because the record is adequate for review and the defendant alleges a deprivation of a constitutional right. Because, however, a constitutional violation does not clearly exist that deprived the defendant of a fair trial, we find no merit to her claim.

Juries are instructed to decide the facts of a dispute on the basis of the evidence in the record. To that end, a prosecutor must not divert a jury from its task by engaging in arguments that appeal to “the emotions, passions and prejudices of the jurors.” (Internal quotation marks omitted.) State v. Rolli, supra, 53 Conn. App. 280.

The state conceded at oral argument that the prosecutor’s argument was not appropriate in that regard. The comment, however, did not deprive the defendant of a fair trial. The failure to object to certain arguments at trial often is an indication that “counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized.” (Internal quotation marks omitted.) State v. Iovieno, 14 Conn. App. 710, 724, 543 A.2d 766, cert. denied, 209 Conn. 805, 548 A.2d 440 (1988). Counsel might make a tactical decision not to object to a marginally objectionable argument because he or she does not want to draw the jury’s attention to it or because he or she wants to later refute that argument. The record reflects that defense counsel rebutted those arguments and the inferences that the prosecutor sought to have the jury draw from them during his closing arguments. For example, defense counsel rhetorically asked why the state had failed to prove that the defendant’s affluent lifestyle resulted from drug activity. The defense arguments to the jury also challenged the victim’s credibility through an appeal to consider the victim as a Hispanic, drug-using, unmarried welfare recipient living in a housing project.

In contrast to both counsel’s arguments to the jury, the court instructed the jury that it could draw whatever reasonable inferences from the evidence that it deemed proper. In any event, because the focus of the trial was on the defendant’s actions during the afternoon of the victim’s kidnapping rather than on her lifestyle, those arguments may have been irrelevant. Any arguments in that regard also did not represent a “blatant and egregious pattern of misconduct”; State v. Daniels, 42 Conn. App. 445, 460, 681 A.2d 337, cert. denied, 239 Conn. 928, 683 A.2d 397 (1996); that undermined the fairness of the trial. The prosecutor restricted those remarks to a minor portion of his closing argument, and we conclude, after reviewing the remarks in the context of the entire record, that they “did not rise to the level of egregious conduct that so infected the trial with unfairness that the defendant was denied [her] constitutional right to a fair trial.” State v. Rolli, supra, 53 Conn. App. 280.

IV

The defendant further claims that she did not receive a fair trial because the prosecutor, during his closing arguments, improperly relied on evidence that had been admitted only against another defendant who no longer was on trial, expressed his belief that the defendant had lied during her testimony at trial and suggested to the jury that finding the defendant not guilty would violate the law. We set forth each of the defendant’s claims separately. We will, however, discuss them together.

During his closing argument to the jury, the prosecutor referred to certain evidence concerning Carmelo Rivera’s rental of the car used during the kidnapping. The court admitted that evidence solely against Carmelo Rivera, who was a defendant in the trial until the court granted his motion for a judgment of acquittal. Immediately following the prosecutor’s reference to that testimony, defense counsel objected, and the court heard argument outside of the jury’s presence. The court sustained the objection and instructed the jury that it must disregard such evidence in the case before it. The court reiterated a similar instruction to the jury in its charge. Defense counsel failed to object to the court’s instruction to the jury on that issue in either instance.

As we noted in part I of this opinion, the absence of an objection to the court’s curative instruction often is an indication of the instruction’s adequacy. In any event, the prosecutor referred to the evidence about the rental car only once, the jury already had learned about it when the representative from the car rental company testified, the evidence had only slight, if any, prejudicial effect on the defendant, and the court’s immediate and direct curative instruction adequately removed the evidence from the jury’s consideration. To the extent, therefore, that the defendant now challenges the adequacy of the court’s curative instruction on that issue, the claim is unpreserved.

The defendant also claims that the prosecutor expressed his belief that the defendant lied during her testimony, under oath, during the trial. The defendant cites to only one instance of that alleged misconduct in the record. Specifically, she points out that the prosecutor argued to the jury that “[w]hen [the defendant] tells you or tells us [that] she does not know . . . what [Dred’s] last name is when she’s known him the way she knows him, I respectfully submit that it’s not true.” The defendant failed to object to that argument.

The defendant also claims that one of the prosecutor’s arguments directly suggested to the jury that “ ‘the law’ was on the state’s side, that the defendant’s arguments were somehow counter to or against the law and that a not guilty verdict could come only at the expense of the jurors violating the law.” Again, the defendant failed to object to that perceived improper comment during trial.

The defendant seeks review of her claims under State v. Golding, supra, 213 Conn. 233. We previously have noted that we may dispose of claims under a Golding analysis by “focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Rolli, supra, 53 Conn. App. 277-78. We are persuaded that the defendant’s unpreserved claims are “merely masquerading” as constitutional claims and should be summarily dismissed. See State v. Lasky, supra, 43 Conn. App. 632. Nothing about those claims raises issues of due process. Our review of the entire transcript of the trial does not reveal a pattern of misconduct that compromised the fairness of the defendant’s trial. “[W]here the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial, we have consistently held that the second prong of Golding has not been met.” (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 416, 743 A.2d 626, cert. denied, 253 Conn. 902, 753 A.2d 938 (2000); see State v. Rolli, supra, 278; State v. Moore, 49 Conn. App. 13, 30, 713 A.2d 859 (1998).

We conclude that the defendant’s claims do not rise to constitutional dimension, and therefore we decline to review them. See State v. Alamo, 57 Conn. App. 233, 236, 748 A.2d 316, cert. denied, 253 Conn. 912, 754 A.2d 161 (2000).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides in relevant part: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and: (1) His intent is to compel a third person (A) to pay or deliver money or property as ransom . . . .”

       The defendant in her brief also claimed that the prosecutor based certain portions of his closing argument on facts not in evidence. The defendant withdrew that claim during oral argument to this court.

       The following excerpt from the prosecutor’s argument provides greater context for those remarks: “First off, I was somewhat—not totally amazed, but somewhat amazed at some of the remarks made by counsel in his closing argument to you. First, off, I don’t want it to boil into a vendetta between the two of us because I’m not, going to play that game—I’ve been doing this too long—but what I will say is this. I heard on numerous occasions [defense counsel] give you his opinions about the guilt or the not guilt or innocence of his client and also [the] credibility of witnesses. That is unprofessional conduct and it so states in the rules of practice. No opinion in this court amounts to one hill of beans except yours: [N]ot mine; not his. You will note [that] the court will never give you its opinion about the facts in the case. That’s solely within your jurisdiction.”

       The relevant portion of the court’s charge was as follows: “During the second argument of the prosecutor on Friday afternoon, references were made to—claimed unprofessional conduct on the part of defense counsel. That was not a proper argument to make. And so you should completely disregard that portion of the rebuttal argument by the state and not consider it in any way in your deliberations in this case.”

       The court charged in relevant part as follows: “The evidence from which you are to decide what the facts are consists of: (1) the sworn testimony of witnesses both on direct and cross-examination, regardless of who called the witness; and (2) the exhibits that have been received into evidence. In reaching your verdict, you should consider all the testimony and exhibits received into evidence. Certain things are not evidence, and you should not consider them in deciding what the facts are.”

       The court instructed the jury in relevant part that “[t]he lawyers are not witnesses. What they have said in their closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.”

       The context of the prosecutor’s remark is as follows: “If the elements of the crime have been proved with credible evidence, and I respectfully submit to you, while it’s subject to your review, that the testimony of Quintina is true, then this young lady is guilty of those crimes as charged. I can only ask this jury to do its best in finding truth. I don’t care about anything else. And, quite frankly, neither do the people of this state.”

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial 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.) State v. Golding, supra, 213 Conn. 239-40.

       The court instructed the jury as follows: “Some evidence in this case came in only against Carmelo Rivera and not against [the defendant]. And, specifically, there was evidence from an official from Hertz Rent-a-Car, who testified about renting a car, and some documents and a photograph were put into evidence in connection with his testimony. That evidence only came in as to Carmelo Rivera and, therefore, should not be considered by you in the case that you’re going to decide, which is state against [the defendant]. I was going to tell you that in my charge, and I will repeat it in the charge. So, references to that in this argument shouldn’t be considered by you, either.”


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. RONDELL CHAMBERS
    (AC 19853)
    Foti, Dranginis and Dupont, Js.
    Argued November 27, 2000
    officially released February 13, 2001

      Carlos E. Candal, for the appellant (defendant).

      Robin S. Schwartz, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O’Connor, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Rondell Chambers, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction (commissioner) for a period of ten years. The defendant claims that (1) the state produced insufficient evidence to support a finding that he violated his probation and (2) the court abused its discretion by imposing the maximum sentence of ten years. We affirm the judgment of the trial court.

The following facts are relevant to our discussion of the issues. On November 8,1995, the defendant pleaded guilty to assault in the first degree in violation of General Statutes § 53a-59. On November 22,1995, the court sentenced the defendant to ten years imprisonment, execution suspended, and three years probation. On June 19, 1998, the police arrested the defendant for violating the terms of his probation. An alleged kidnapping and sexual assault that took place on January 10, 1998, led to the defendant’s June 19, 1998 arrest. The state charged the defendant with violating the terms of his probation, namely, that he not violate the laws of the state of Connecticut.

At the defendant’s violation of probation hearing, the alleged victim, K, testified as to the events that occurred on January 10, 1998. At approximately 7:20 p.m., K was walking on Albany Avenue in Hartford to pick up dinner for herself and her mother as she passed the defendant at a pay telephone. She recognized the defendant from the neighborhood, specifically, from a local club where he had attempted to dance with her the previous night. The defendant initiated a conversation with K and offered to drive her to the restaurant. K agreed and entered the passenger side of the defendant’s car. She testified that the defendant then drove several blocks in the opposite direction of the restaurant before stopping in a residential area on Hebron Street.

K testified that the defendant then made unwelcome advances and started rubbing her legs. K testified that she told him to stop, but that the defendant did not. He then reclined her seat. K testified that she told him to stop, but that the defendant continued. He then began pulling up her dress, and she told him to stop. The defendant did not. He then climbed on top of her and told her that she would be his “bitch.” K testified that she told the defendant to get off of her. Still, the defendant did not relent.

While on top of K, the defendant asked her if she had stabbed his friend, Adrian Young. K testified that she told the defendant that she had stabbed Young. The defendant then pulled her panties to the side and penetrated her with his penis. According to K’s testimony, the assault lasted around ten minutes, during which she cried, repeatedly insisted that he get off of her, moved her head from side to side, tried to pull him off her and even told him that she had AIDS, hoping that that proclamation would make him stop. The cries, the pleas and the threat of HIV infection did not deter the defendant. K’s efforts to push him off of her also proved unsuccessful given the defendant’s superior physical size and strength. According to K’s testimony, the defendant continued the sexual assault.

K testified further that the defendant eventually stopped after some ten minutes and then ordered her into the backseat to retrieve a pair of clean boxer shorts. She did as he demanded, and he threw his soiled boxers in her face, telling her to keep them as a souvenir. She threw the boxers back at him and fixed her clothing. The defendant then drove báck to the restaurant where K had been heading and dropped her off. K purchased dinner and returned home. Upon her return, she did not eat and climbed into the bathtub and cried. K’s mother tried to coax her out of the bathroom and eventually summoned the police. Two uniformed officers arrived at the house, and K informed them of the assault. They then asked her for the dress that she had worn and transported her to the hospital for medical attention. K gave a statement to the police that was consistent with her testimony at the violation of probation hearing.

The defendant also testified at the hearing. He testified that K initiated the conversation on Albany Avenue and consented to the sexual intercourse while in the car. He testified that he too had recognized K from the neighborhood as she walked past him at the telephone booth, but denied pursuing her at the club the night before. Additionally, he testified that K approached him on January 10,1998, and asked where he was going. The defendant responded that he was going to his cousin’s house, and K said that she was getting dinner. The defendant testified that K entered his car before he even had an opportunity to offer her a ride and that they drove to his cousin’s house. According to the defendant, he visited with his cousin for approximately five minutes, leaving K alone in the car. He told her to help herself to a beer while she waited. The defendant testified that she was drinking a beer when he returned. He entered the car and began driving around. The defendant testified that K began rubbing his legs, reclined her seat and grabbed his penis several times as he drove. The defendant then pulled the car over on Hebron Street. She continued touching and kissing him, and he reciprocated. According to the defendant’s testimony, he and K engaged in consensual sex, during which K never asked him to stop.

The defendant testified that he asked K to retrieve a pair of clean boxers from a bag in the backseat after the sexual encounter. K did so and commented on the nice clothes in the backseat. The defendant then told her that he was going out that night to celebrate his birthday. The defendant testified that K then asked him for money so that she could buy him a birthday gift, to which he responded that he should be receiving gifts because it was his birthday. The defendant then told K that instead of giving her money, he would give her the boxers. He threw them at her, and she playfully tossed them back at him.

The defendant testified that as he dressed, the two of them discussed their respective plans for the evening. He mentioned that he would be going out with a few friends, one of whom was Adrian Young. At that point, according to the defendant, K grew angry and began cursing. She told him that she had stabbed Young because she hated her. The defendant testified that he told K to “chill” and dropped her off at the restaurant. According to his testimony, she waved as he pulled away. The defendant testified further that when he saw K one week later, she smiled, stuck her tongue out at him and did not act hostilely toward him. At the hearing, the defendant denied that he told K she would be his bitch and denied that she cried or asked him to stop during the intercourse.

On June 9, 1999, the court found by a fair preponderance of the evidence that the defendant had violated the terms of his probation by sexually assaulting K. The court then determined that the defendant’s probation no longer served its rehabilitative purposes, revoked it and committed the defendant to the custody of the commissioner for a period of ten years. This appeal followed.

Before we address the defendant’s claims, we note our well settled standard of review in probation revocation cases. “The hearing itself involves two distinct components. Initially, the court conducts an adversarial evidentiary hearing to determine whether the defendant has indeed violated a condition of probation. State v. Davis, 229 Conn. 285, 289, 641 A.2d 370 (1994); State v. Gaston, 56 Conn. App. 125, 129, 741 A.2d 344 (1999). The state must establish a violation of probation by a fair preponderance of the evidence. State v. Davis, supra, 295. That is to say, ‘the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.’ Id., 302. This court will not disturb a trial court’s factual determination that a violation has occurred unless that determination is clearly erroneous. State v. Treat, 38 Conn. App. 762, 769, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995); State v. Scott, 31 Conn. App. 660, 668, 626 A.2d 817 (1993).

“Second, if the evidence supports a violation, the court exercises its discretion and determines whether the beneficial, rehabilitative purposes of probation are still being served or whether the need to protect the public outweighs the probationer’s interest in liberty. State v. Davis, supra, 229 Conn. 297. Thus, an appellate court will affirm an exercise of discretion reinstating an original sentence or ordering incarceration, absent a manifest abuse of discretion or injustice requiring reversal. Walker v. Commissioner of Correction, 223 Conn. 411, 414—15, 611 A.2d 413 (1992), overruled in part on other grounds, Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994).” State v. Reilly, 60 Conn. App. 716, 725-26, 760 A.2d 1001 (2000).

I

The defendant first claims that the evidence as to lack of consent was insufficient to support a finding by a preponderance of the evidence that he violated his probation on the basis of a sexual assault allegation, lie argues that a reasonable person would have believed that K had consented. The state argues that the court based its finding on reliable and probative evidence, and that the court’s factual findings are not clearly erroneous. We agree with the state.

The following additional facts are relevant to our discussion of the defendant’s first claim. At the violation of probation hearing, the defendant and K both testified that K entered the defendant’s car, that he drove to Hebron Street and that a sexual encounter occurred. The principal difference, of course, centered around whether K consented to having intercourse with the defendant.

The defendant argues in his brief that even if one fully credits K’s testimony, “it was still unclear whether ... a reasonable person in [the defendant’s] position would have believed that [K] had consented to having sex with [the defendant].” The defendant draws our attention to the fact that K agreed to accompany him in the car. The defendant also points to what K did not do. She did not tell anyone in the restaurant of the rape. She did not yell or scream. She did not attempt to open the passenger door. She did not run away or call the police immediately after she left his car. The defendant also makes much of the fact that she remained in the four door car when the defendant had his pants and boxers around his ankles as she retrieved a clean pair of boxers from the backseat.

We respond briefly to the defendant’s assertions. First, K testified as follows: “I was crying and I told him no, to get off of me and I tried to push him off of me. He wouldn’t get up, and I was crying and saying no, no, no get off of me, get off me, and I said I had AIDS and get off of me, you don’t even know me.” The court credited K’s testimony. We disagree, therefore, with the defendant’s proposition that K’s protests would have left a reasonable person confused as to whether she had consented. Second, voluntary acceptance of an invitation for a car ride in no way implies voluntary acceptance of an invitation for sex. Third, we refuse to credit the defendant’s rendition of events simply because K failed to inform a complete stranger in a restaurant of the rape, because she pleaded with the defendant to stop rather than scream for help, because she did not exit the locked car in a fearful state in an unfamiliar neighborhood after dark in the middle of winter or because she initially was reluctant to involve the police.

The court specifically stated that it found K both credible and believable, and the defendant noncredible. Moreover, the court stated that “[t]here is little in the record to warrant a finding of consen[t]. . . . [T]he reasonable inferences that can be drawn by the trier negate any finding of consen[t].”

We are unable to conclude that the court’s factual findings as to consent were clearly erroneous. The defendant must do more than state that he and K recounted differing stories or that doubt surrounded K’s credibility, as well as his own. Conflicting testimony and credibility determinations are better left to the trier, who, in this case, resolved those conflicts in favor of K. “The determination of a witness’ credibility is the special function of the trial court. This court cannot sift and weigh evidence.” (Internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 227, 673 A.2d 1098 (1996).

Simply stated, K testified that the defendant had

raped her, and the court credited that testimony while it discredited the defendant’s testimony. The medical records that the state introduced corroborated K’s testimony as to the scratches on her leg and conflicted with the defendant’s testimony that he had not been rough. Moreover, the court determined that K’s “accusations immediately after the assault to her sister, mother and the police were constant and consistent.” See State v. Troupe, 237 Conn. 284, 297, 677 A.2d 917 (1996) (en banc) (recognizing legitimacy of constancy of accusation doctrine). In sum, the court’s factual findings are not clearly erroneous, and its legal conclusions find support in the record. We, therefore, conclude that the court properly determined that the defendant violated the terms of his probation.

II

The defendant’s second claim is that the court abused its discretion in imposing the maximum sentence of ten years incarceration. We disagree.

The defendant argues that the court abused its discretion for several reasons. He claims that no aggravating factors existed, that his actions were, even crediting K’s account, not malicious, but, rather, a result of poor communication between himself and K, and that the state had nolled the underlying sexual assault charge and several other criminal allegations. The state counters that the court did not exceed its discretion in imposing a sentence that was within statutory limits, even though that sentence was the maximum one. We agree with the state.

We reiterate the substantial deference we accord the trial court during the dispositional phase of the probation revocation process. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988) (“defendant who seeks to reverse the exercise of judicial discretion assumes a heavy burden”). An abuse of discretion requires more than a harsh or severe sentence. See State v. Horton, 132 Conn. 276, 278, 43 A.2d 744 (1945). Reversal by this court would require the defendant to demonstrate that the court relied on information outside of the record that was materially false or unreliable. See State v. Collette, 199 Conn. 308, 320-21, 507 A.2d 99 (1986). It is here that the defendant’s claim must fail.

The defendant speculates that the state opted not to pursue the underlying charges because of perceived weaknesses in its case. It is of little moment whether infirmities in the case prompted the state to reduce or nolle the underlying charges against the defendant. Indeed, a judgment of acquittal on the underlying charges would similarly have limited effect on our review of a court’s determination to revoke a defendant’s probation because that probation no longer served its rehabilitative purposes. Such is the case because of the different standards of proof required in a criminal proceeding and a violation of probation hearing. “The proof of the conduct at the [violation of probation] hearing need not be sufficient to sustain a violation of a criminal law. ... In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” (Citations omitted; internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 484, 723 A.2d 817 (1999). If conviction of a lesser charge or an acquittal rarely has a bearing on our review of whether a court abused its discretion in revoking probation, we see no reason to allow a dismissal of the underlying charges to affect our review.

A review of the record reveals no impropriety on the part of the court. It properly considered the severity of the alleged sexual assault; see State v. Huey, 1 Conn. App. 724, 734-35, 476 A.2d 613 (1984), aff'd, 199 Conn. 121, 505 A.2d 1242 (1986); and the defendant’s extensive criminal history. See id. The court stated that, given its experience, it has “had the opportunity to view and consider many rap sheet arrests and conviction records. I need to say for a defendant of his tender years, age twenty-six, to have reached a point of thirty-seven total arrests, fourteen convictions, five felonies, several of them involving either arrests or convictions with firearms, and a clear pattern of drug abuse both in use and sale, this case could almost be a poster child for a criminal justice system that is presently gridlocked and incapable of prosecuting defendants at the earliest stage of their criminal careers.” The court did not abuse its discretion in sentencing the defendant to serve the maximum sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-86e provides in relevant part: “The name and address of the victim of a sexual assault . . . shall be confidential and shall be disclosed only upon order of the Superior Court, except that such information shall be available to the accused in the same manner and time as such information is available to persons accused of other criminal offenses.”

       We do not necessarily agree with the defendant’s suggestion that if the state opts not to prosecute a defendant, then it is logical to assume that the state based that decision solely on weaknesses in the case. Such a narrow view wholly ignores other valid considerations such as case backlog, resources and time.