author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. GWENDOLYN MCNAIR
    (AC 17459)
    Lavery, Spear and Sullivan, Js.

      Argued March 29
    officially released September 14, 1999

      Katharine S. Goodbody, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Gwendolyn McNair, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant claims that the trial court improperly (1) admitted statements made by a witness as evidence under the spontaneous utterance exception to the hearsay rule, (2) admitted evidence of the victim’s pregnancy at the time of the incident and (3) charged the jury on self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of September 19,1995, the victim, Crystal Hill, rode her bicycle to a housing project at 31 Annawan Street in Hartford to visit friends. The defendant lived in the housing project and was on the grounds. The defendant and an acquaintance, Clarence Jones, waited on an outside porch for a delivery man to bring food. Jones began arguing with his brother-in-law, a man named Donovan. Jones and Donovan continued to argue and walked around to the back of a building. The defendant saw the victim follow them and also went to the rear of the building. The defendant and the victim exchanged words, and tempers erupted. The victim disarmed the defendant of a bottle and shortly thereafter punched or slapped the defendant in the head. The defendant responded by stabbing the victim. The victim testified, “Every time I was hitting her she was stabbing me.” The defendant’s teenage son also joined the fight.

Officer Salvatore Abbatiello of the Hartford police department arrived at 11:40 p.m., moments after the stabbing, and tended to the victim’s wounds. Officer Nevile Brooks arrived shortly after midnight and was directed by Abbatiello to a potential witness in a nearby apartment. Brooks went directly to the apartment. The woman residing there was neivous and reluctant to talk to the officer, but, once Brooks asked if she saw what happened outside, the woman stated what she knew in detail without further prompting. The defendant was arrested that evening.

Meanwhile, the victim was taken to Hartford Hospital and treated for her injuries. Rocco Orlando, the attending trauma surgeon, testified at trial regarding the victim’s injuries. The victim received multiple stab wounds and suffered significant blood loss. Orlando further testified that medical personnel paid particular attention to the victim’s abdominal wounds because she was pregnant. The victim remained in Hartford Hospital for six days.

I

The defendant first claims that the admission of a witness’ statements reported by Brooks violated the rule against hearsay and did not fall within the bounds of the spontaneous utterance exception. We agree with the defendant that the trial court improperly admitted the statement. We conclude, however, that this error was not harmful.

“An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies.” State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998). “In Perry v. Haritos, 100 Conn. 476, 124 A. 44 (1924), our Supreme Court recognized the spontaneous utterance exception to the hearsay rule. This exception allows otherwise inadmissible statements into evidence to prove the truth of the matter asserted if it is proven that (1) the declaration follows some startling occurrence, (2) the declaration refers to the occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant. State v. Stange, 212 Conn. 612, 616-17, 563 A.2d 681 (1989); Perry v. Haritos, supra, 484.” State v. Cayouette, 25 Conn. App. 384, 387, 594 A.2d 1020 (1991). The excited utterance exception “rests on the view that such assertions, made in reaction to a startling event, are trustworthy and void of self-interest. Mei v. Alterman Transport Lines, Inc., [159 Conn. 307, 315, 268 A.2d 639 (1970)].” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.11.1, p. 373.

“As a preliminary matter, the trial judge must determine whether an utterance qualifies under this exception to the hearsay rule, and that decision will not be disturbed on appeal unless it constitutes an unreasonable exercise of discretion. State v. Stange, supra, [212 Conn. 616-17]; State v. Chesney, 166 Conn. 630, 638, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974); Perry v. Haritos, supra, [100 Conn. 484].” State v. Cayouette, supra, 25 Conn. App. 387.

“The requirement that a spontaneous utterance be made under such circumstances as to negative the opportunity for deliberation and fabrication by the declarant . . . does not preclude the admission of statements made after a startling occurrence as long as the statement is made under the stress of that occurrence.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Rodriguez, 39 Conn. App. 579, 603, 665 A.2d 1357 (1995), rev’d on other grounds, 239 Conn. 235, 684 A.2d 1165 (1996). “While the short time between the incident and the statement is important, it is not dispositive. ... All material facts should be weighed by the trial judge when determining whether a statement qualifies as a spontaneous utterance.” (Citations omitted.) State v. Cayouette, supra, 25 Conn. App. 388. “ ‘The ultimate question is whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation.’ ” State v. Stange, supra, 212 Conn. 617.

The crux of the state’s argument is that the statements of the witness held the requisite spontaneity and timeliness to be admissible under the doctrine enunciated in Perry v. Haritos, supra, 100 Conn. 484. In support of its argument, the state asserts that the witness was visibly nervous, reluctant to speak to the police and feared retribution from the defendant. Also, once the witness did talk with the officer, she provided most of what she knew with minimal prompting. The state maintains that, in light of these factors, the statements were made at a time and under circumstances in which the witness was incapable of cognitive, deliberate and reflective responses as required under Perry v. Haritos, supra, 484-85.

On appeal, the defendant does not dispute that the declarant’s statements followed a startling occurrence, were made with reference to the occurrence or that the declarant observed the occurrence. Nevertheless, the defendant argues that the statements were not made under circumstances that negate the opportunity for deliberation and fabrication for the witness.

Although not dispositive, the length of time between the startling event and the statement is a key factor. State v. Cayouette, supra, 25 Conn. App. 388. Traditionally, our Supreme Court has allowed a very narrow time frame within which a spontaneous utterance could arise. Rockville v. White Line Bus Co., 109 Conn. 706, 710, 145 A. 504 (1929) (three minutes too long); Perry v. Haritos, supra, 100 Conn. 483 (utterance permitted where made in such close proximity to accident as to be almost part of and contemporaneous with it). The presence or absence of a very brief time frame between the event and the spontaneous utterance was “decisive.” Perry v. Haritos, supra, 483. Recent decisions, however, have under certain circumstances expanded the acceptable time frame between an event and the spontaneous utterance to a significant period. State v. Stange, supra, 212 Conn. 614-15, 618 n.5 (fifteen to thirty minutes); State v. Guess, 44 Conn. App. 790, 804, 692 A.2d 849 (1997), aff'd, 244 Conn. 761, 715 A.2d 643 (1998) (one hour); State v. Cayouette, supra, 386-88 (between ten and twenty-nine minutes). In this case, the declarant did not speak to the officer until approximately thirty minutes after the stabbing.

At this point, however, the similarities between Stange, Guess, Cayouette and this case end. In all three of those decisions in which a significant time lapse was allowed, the declarant had undergone drastic personal trauma and remained in a severe emotional state from the time of the event until the time of the statement. In State v. Stange, supra, 212 Conn. 614, the declarant was the victim of multiple shotgun pellet wounds, was beginning to go into shock, and was found by police “covered in blood, rocking back and forth in a fetal position, rubbing his abdomen and screaming that he had been shot.” In State v. Guess, supra, 44 Conn. App. 793, the declarant had narrowly missed being harmed by fifteen to twenty gunshots and had witnessed his friend sustain critical wounds from the shooting. The police found the declarant “frantic and shaking.” Id. In State v. Cayouette, supra, 25 Conn. App. 386, the declarant had been bound, punched and raped by the defendant and had been found by police lying on the floor in “a kind of catatonic state.”

In this case, the agitation suffered by the witness, particularly in light of the significant lapse in time between the event and the statement, simply does not rise to the level of trauma necessary to “negate the opportunity for deliberation and fabrication . . . .’’Id., 387. The witness was not the actual or intended victim, or even a close bystander. The witness viewed the incident from the safety of her apartment. The thirty minute intervening period gave the witness “ample time to collect her thoughts” before making the statements at issue. State v. Bowman, 46 Conn. App. 131, 141, 698 A.2d 908 (1997). Accordingly, the trial court improperly allowed Brooks to testify as to the statements of the witness on the basis of a spontaneous utterance.

We must next determine whether the admission of the declarant’s hearsay statements constituted harmful error entitling the defendant to a new trial. Because this admission of the spontaneous utterance constituted an improper evidentiary ruling and did not rise to the level of a constitutional error, the defendant bears the burden of showing that admission of the testimony was harmful. State v. Williams, 30 Conn. App. 654, 656, 621 A.2d 1365 (1993). “One line of cases states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result. ... A second line of cases indicates that the defendant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict.” (Citations omitted; internal quotation marks omitted.) State v. Marshall, 246 Conn. 799, 812, 717 A.2d 1224 (1998).

Under either analysis, it does not appear that the exclusion of the witness’ brief statements would have caused a different result or that their admission undermined confidence in the verdict. Most significantly, the defendant conceded at oral argument that the witness, to the extent she testified about the altercation, did not contradict the testimony of the defendant. Further, the defendant also conceded at oral argument that the statements by the witness did not provide any additional information that was not already in evidence through other means. The witness’ statements, brief as they were, did not significantly vary from the statements of other witnesses to the event. See State v. Walsh, 52 Conn. App. 708, 720, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999) (“judgment need not be reversed merely because inadmissible evidence has been admitted, if permissible evidence to the same effect has also been placed before the jury” [internal quotation marks omitted]). Accordingly, the admission of the hearsay evidence was harmless because it was both merely cumulative and consistent with other testimony. State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983).

II

The defendant next claims that the trial court improperly admitted evidence of the victim’s pregnancy at the time of the incident. Specifically, the defendant claims that the admission of this evidence was not relevant and unduly prejudiced the jury. We disagree.

Evidentiary matters decided by the trial court will be overturned only on a showing of a clear abuse of discretion. State v. Avis, 209 Conn. 290, 298, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989). “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Emphasis in original; internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 788-89, 699 A.2d 91 (1997).

Applying these principles to the facts of this case, we conclude that the trial court did not abuse its discretion when it admitted the evidence relating to the victim’s pregnancy. The trial court allowed the state to present evidence to establish a continuum of treatment of the victim by medical professionals. The state may properly present evidence to show the sequence of events as they unfold. State v. Casey, 201 Conn. 174, 184, 513 A.2d 1183 (1986). The testimony was not unduly graphic in nature and was entered into evidence merely to allow the juiy to understand a chronological sequence of significant factual events—the course of medical treatment given to the victim. State v. Gant, 231 Conn. 43, 59, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995); compare State v. Castonguay, 218 Conn. 486, 503-505, 590 A.2d 901 (1991) (graphic testimony involving multiple gunshot wounds found irrelevant to show that gunshots were intended to cause death and were proximate cause of death).

In addition, admission of evidence of the victim’s pregnancy did not prejudice the defendant. “We have recognized that even where evidence is relevant there are four situations where prejudice to the defendant could outweigh the probative value of evidence. These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Internal quotation marks omitted.) State v. Coleman, supra, 241 Conn. 790-91.

The defendant contends that the evidence of the victim’s pregnancy unduly aroused the sympathy of the jurors toward the victim and created a side issue that distracted the jury. Even if we assume that a possibility of prejudice existed, events throughout the trial cured any potential problems of prejudice or distraction. The state and the defendant stipulated that the defendant did not know the victim was pregnant at the time of the stabbing and that the child was bom healthy. The testimony showed that no harm occurred to the fetus. No mention was made of the pregnancy during the final arguments of the state and defense. On several occasions, the trial court instructed the jury that it should not allow sympathy to influence its decision. See State v. Gray, 221 Conn. 713, 730, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992) (jury presumed to follow judge’s instructions in absence of evidence to contrary). In addition, testimony establishing that the victim used illegal drugs while pregnant may reasonably be viewed to lower the jurors’ sympathies toward the victim as one who disregards the needs of her unborn child. The cumulative effect of the previously mentioned evidence eradicates any possibility of prejudice or distraction by the jury.

Ill

The defendant’s final claim is that the trial court improperly instructed the jury regarding self-defense. We disagree.

“An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. ... In either instance, [t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. State v. Anderson, [227 Conn. 518, 526-27, 631 A.2d 1149 (1993)]. . . . State v. Ash, [231 Conn. 484, 493, 651 A.2d 247 (1994)]. In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. State v. Estep, 186 Conn. 648, 651-52, 443 A.2d 483 (1982); State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); Farlow v. Connecticut Co., 147 Conn. 644, 648, 166 A.2d 202 (1960); Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933). The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978); State v. Holmquist, 173 Conn. 140, 151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Mullings, 166 Conn. 268, 274-75, 348 A.2d 645 (1974). . . . State v. Ash, supra, 493-94, quoting State v. Dyson, 217 Conn. 498, 501-502, 586 A.2d 610 (1991).” (Internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284-85, 664 A.2d 743 (1995).

The defendant contends that the instruction could be expected to mislead the jury into applying an objective test, rather than a test that contains subjective elements from the perspective of the defendant in determining whether the defendant was justified in using deadly physical force against the victim. See State v. Scarpiello, 40 Conn. App. 189, 206-207, 670 A.2d 856, cert. denied, 236 Conn. 921, 674 A.2d 1327 (1996). When we view the jury charge as a whole, it is apparent that the jury was instructed to consider the perspective of the defendant in evaluating whether she acted in justifiable self-defense. Elsewhere, the trial court defined the law of self-defense as containing a subjective element. The trial court, in describing self-defense, commented that “[djeadly physical force may not be used unless the actor, meaning the defendant, reasonably believes that such other person, meaning the victim in this case, is using or [is] about [to] use deadly physical force.” The court further noted that “[t]he [self-defense] statute [focuses] on the person claiming self-defense. It focuses on what she reasonably believed under the circumstances. ... In other words, what is important is what the defendant reasonably believed under the circumstances in this case.” The court also defined the self-defense test as requiring the jury “to measure the justifiability of the defendant’s actions from a subjective perspective, that is, what the defendant reasonably believed under the circumstances presented in this case, and on the basis of what the defendant perceived the circumstances to be.” These instructions were given just prior to the charge the defendant claims constitutes reversible error. When we view the jury charge as a whole, it is clear' that the trial court adequately disclosed to the jurors the dimensions of the subjective-objective test inherent in the self-defense instruction. The trial court’s instructions to the jury were proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Over objection by the defendant, the statement of the witness was relayed by Brooks through his testimony at trial:
      “The Court: What did [the witness] tell you?
      “Brooks: That she witnessed the accused in a verbal argument with the victim . . . after which the accused’s son—or after which she began stabbing the victim and then the accused’s son joined in [and] the two of them [the defendant and her son] fled back to their apartment together.”

       The instruction at issue states: “In this case, if you find beyond a reasonable doubt that the victim was not using, or about [to] use deadly physical force, or inflict great bodily harm upon the defendant, or another, if you further find proven beyond a reasonable doubt that the defendant had no reasonable belief that the victim was using or about to use deadly physical force or about to inflict great bodily harm upon the defendant or another, then the defendant would not be justified in using deadly physical force upon the victim.”

       The trial court also articulated the objective element of the self-defense instruction: “Now, the test for the degree of force in self-defense is a subjective-objective test, meaning it has some subjective aspects and some objective aspects. Self-defense thus requires you as the jury to measure the justifiability of the defendant’s actions from a subjective perspective. . . . However, the defendant’s belief must have been reasonable, and not irrational or unreasonable under the circumstances. That is, would a reasonable person in the defendant’s circumstances have reached that belief. That is the objective [aspect] of the test. It is both a question of what her belief was and whether it was reasonable.”

       The defendant contends that the trial court improperly refused to provide an “imperfect self-defense” instruction to the jury. The defense of imperfect self-defense is not recognized in Connecticut. State v. Abdalaziz, 248 Conn. 430, 434, 729 A.2d 725 (1999).


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. JACK CANSLER
    (AC 17324)
    Lavery, Hennessy and Stoughton, Js.

      Argued February 25
    officially released September 14, 1999

      James Moreno, special public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Jack Cansler, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21. The defendant claims that the trial court improperly (1) allowed the state to present constancy of accusation evidence, (2) failed to issue a curative instruction concerning an alleged act of prosecutorial misconduct, (3) failed to grant his motion to strike the victim’s testimony, (4) instructed the jury on the standard for reasonable doubt and (5) failed to find that there was insufficient evidence to sustain the conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 25, 1995, the victim’s parents took her and her brother to the apartment of the defendant and his wife, Iris Cansler. Iris Cansler, a second cousin of the victim’s father, had agreed to babysit the victim and her brother while their parents attended religious services. The victim was five years of age at the time. The victim, who was six years of age at the time of trial, testified that on June 25,1995, “Jack” touched her “totico” with his tongue. The victim also testified that on the evening of June 25, 1995, when her mother was bathing her, she informed her of the incident and that the perpetrator was named Jack.

The victim’s mother testified that, aside from the defendant, she was not acquainted with anyone named Jack. Moreover, at the time of the incident, she was unaware of any other person named Jack who would have had access to the victim. Although the victim was not able to identify the defendant in open court, her mother testified that the defendant had altered his appearance since the date of the incident. The defendant’s wife testified that the victim and her brother stayed at the apartment on June 25, 1995, her husband was in the apartment and no one else named Jack visited the apartment on that date.

The state filed an information charging the defendant with one count of sexual assault in the first degree and one count of risk of injury to a child. The defendant entered a plea of not guilty and elected a trial by jury. On March 20, 1997, the jury found the defendant guilty on both counts. On March 24, 1997, the defendant filed motions for judgment of acquittal, for a new trial and in arrest of judgment, which were denied by the trial court. On May 2, 1997, the trial court sentenced the defendant to a total effective sentence of fifteen years imprisonment, execution suspended after ten years, with four years of probation, and this appeal followed.

I

The defendant first claims that the trial court improperly allowed the state to admit constancy of accusation evidence in violation of his right to confrontation and due process under the federal constitution and article first, § 8, of our state constitution. We do not agree.

At trial, on direct examination, the victim testified that on June 25, 1995, Jack touched her “totico” with his tongue. She also testified that later that same day, while her mother was bathing her, she informed her about the incident and that the perpetrator was named Jack. The trial court afforded the defendant the opportunity to cross-examine the victim, but he declined. On direct examination, the state asked the victim’s mother what happened when she bathed her daughter on the evening of June 25, 1995. Defense counsel objected, and the trial court excused the jury.

Outside the presence of the jury, the state conducted a voir dire of the victim’s mother. After allowing argument by counsel and reviewing relevant precedent, the trial court ruled that the victim’s mother could testily that while she was bathing her daughter, the victim had reported that she was experiencing pain in her vaginal area and that Jack had caused this pain. The court sustained defense counsel’s objection regarding the admission of testimony that the cause of the victim’s pain was the use of the defendant’s tongue. The court stated that the victim’s mother could not testify as to any additional details that were related by the victim. In the presence of the jury, the victim’s mother testified that, while she was bathing her daughter on the evening of June 25, 1995, her daughter informed her that she was experiencing pain in her vaginal area and that Jack had caused this pain.

It is well settled that the doctrine of constancy of accusation does not violate an accused’s constitutional rights to confrontation; State v. Troupe, 237 Conn. 284, 290-91, 677 A.2d 917 (1996); or to due process. State v. Villanueva, 44 Conn. App. 457, 460, 689 A.2d 1141, cert. denied, 240 Conn. 930, 693 A.2d 302 (1997). “[A] person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged pexpetrator. . . . Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” State v. Troupe, supra, 304-305. “[Constancy of accusation evidence is not admissible unless the victim has testified, and is subject to cross-examination, concerning the crime and the identity of the person or persons to whom the victim has reported the crime . . . .” Id., 293. “[Wjhether evidence is admissible under the constancy of accusation doctrine is an evidentiary question that will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996).

In the present case, the victim testified as to the facts of the incident, that the perpetrator was named Jack and that she had informed her mother of the incident when her mother was bathing her. The defendant was afforded the opportunity to cross-examine the victim but declined to do so. The defendant neither claims, nor does the record disclose, that the trial court placed any limitation on his ability to cross-examine the victim. The victim’s mother testified only that, while she was bathing her daughter, the victim reported the incident and informed her that the perpetrator was named Jack. The victim’s mother’s testimony regarding the identity of the alleged perpetrator was necessary to associate the victim’s complaint with the pending charge. After applying the principles set forth in Troupe to the record before us, we conclude that the trial court did not abuse its discretion by admitting this evidence under the constancy of accusation doctrine.

II

The defendant next claims that the state committed prosecutorial misconduct when, in the presence of the jury, it characterized the proposed testimony of a police officer as containing evidence of an admission of guilt by the defendant in violation of his due process right to a fair trial under the federal constitution and article first, § 8, of our state constitution. He further claims that the trial court improperly denied his request for a curative instruction. We do not agree with either of the defendant’s claims.

Detective Laura J. Buyak, a member of the youth and family services department of the Hartford police department, investigated the victim’s complaint, interviewed the defendant and informed him of the victim’s allegations. When the state asked Buyak whether the defendant had admitted or denied those allegations, defense counsel objected, claiming that this question violated the defendant’s right to remain silent. The state responded that Buyak’s proposed testimony was admissible as either an admission by the defendant or an admission by silence. The trial court then excused the jury.

Outside the presence of the jury, Buyak stated that the defendant had responded that the victim’s allegations were unfounded. After argument by counsel, the trial court sustained defense counsel's objection. Defense counsel argued that the jury was left with an impression that there was an admission by silence, which was highly prejudicial to the defendant, and that a mistrial or curative instruction was necessary. The trial court denied the defendant’s request, stating that it would instruct the jury to consider only the evidence presented in reaching its verdict, and that the evidence was limited to the testimony of witnesses and any items entered as full exhibits. Since Buyak had not responded to the state’s question in the presence of the jury, there was no testimony for the jury to consider. Defense counsel conceded that Buyak had not responded to the state’s question in the presence of the jury. When the jury returned, the state withdrew its question and asked no further questions of Buyak. On cross-examination, defense counsel asked Buyak what, if anything, the defendant had said when she confronted him with the victim’s allegations. Buyak stated that “[h]e responded that the allegations were unfounded.”

A

The defendant contends that the prosecutor’s statement was improper, and that it left the jury with the impression that he failed to respond to Buyak’s question and that this silence constituted an admission of guilt. As such, he claims that this alleged act of prosecutorial misconduct deprived him of his due process right to a fair trial. The defendant concedes that he failed to raise this prosecutorial misconduct claim at trial, and he now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Although the record is adequate to permit our review, the defendant has failed to satisfy the second prong of Golding, that the claim is of constitutional magnitude.

“We will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where 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. . . . State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994), quoting State v. Young, 29 Conn. App. 754, 766-67, 618 A.2d 65 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993). . . . State v. Ricketts, 37 Conn. App. 749, 762, 659 A.2d 188 (1995).” (Internal quotation marks omitted.) State v. Hansen, 39 Conn. App. 384, 395, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). “In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates .... [W]e must review the comments complained of in the context of the entire trial.” (Citations omitted; internal quotation marks omitted.) Id.

The prosecutor made the challenged statement in response to defense counsel’s objection to a question that the prosecutor had asked Buyak. Assuming arguendo that the prosecutor’s statement was improper, we nonetheless decline to review this unpreserved claim because, when considered in the context of the entire trial, this statement was an isolated and brief incident that did not constitute a pattern of conduct repeated throughout the trial or conduct that was blatantly egregious, nor did it implicate the defendant’s constitutional right to due process. See State v. Rogers, 50 Conn. App. 467, 479, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998); State v. Hansen, supra, 39 Conn. App. 396.

B

The defendant next contends that after the prosecutor claimed in the presence of the jury that Buyak’s proposed testimony was admissible as either an admission by the defendant or an admission by silence, the trial court improperly denied his request for a curative instruction. We do not agree.

Because the trial court was in the best position to evaluate the propriety of the prosecutor’s statement, we afford deference to the trial court’s decision to deny the defendant’s request for a curative instruction. See State v. Bova, 240 Conn. 210, 244, 690 A.2d 1370 (1997). After a careful review of the entire record, applying the appropriate standard of review, we conclude that the trial court properly denied the defendant’s request for a curative instruction.

The prosecutor made the challenged statement in response to defense counsel’s objection to a question that the state had posed to Buyak. Defense counsel requested a curative instruction, but the trial court denied this request, stating that it would later instruct the jury to consider only the testimony of witnesses and items entered as full exhibits in reaching its verdict. In its final charge, the trial court minimized any possible prejudice that may have been caused by the prosecutor’s statement by instructing the jury that the arguments of the attorneys did not constitute evidence. Additionally, any potential prejudice was further minimized by Buyak’s testimony. On cross-examination, in the presence of the jury, Buyak testified that when she confronted the defendant with the victim’s allegations, he responded that these allegations were unfounded. Buyak’s testimony directly contradicts the impression that the defendant claims the jury may have obtained from the prosecutor’s statement.

Ill

The defendant next claims that the trial court abused its discretion by failing to grant his motion to strike the victim’s testimony. Specifically, the defendant contends that the trial court should have granted his motion because the victim’s failure to identify him in court rendered all of her testimony irrelevant. We do not agree.

On several occasions, when the state asked the victim whether the perpetrator was present in the courtroom, she failed to identify the defendant as her assailant. After the victim completed her testimony, the defendant orally moved to strike her testimony in its entirety, claiming that her failure to make an in-court identification rendered her testimony irrelevant. The trial court denied the motion.

“Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue.” (Internal quotation marks omitted.) State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986). “It is well established that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Citation omitted; internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996).

After a careful review of the record, we conclude that the trial court did not abuse its discretion by denying the defendant’s motion to strike the victim’s testimony. The victim’s testimony was relevant to establish that she had been sexually assaulted and that the defendant was the perpetrator. Specifically, the victim’s testimony that someone named Jack had sexually assaulted her was relevant to establish that the defendant was the peipetrator when considered in conjunction with her mother’s testimony that the defendant was the only individual named Jack known to the victim and who had access to the victim at the time of the incident.

IV

The defendant next claims that the trial court improperly instructed the jury on the law of reasonable doubt. Specifically, he contends that the trial court’s use of the phrase “ingenuity of counsel” in its charge to the jury deprived him of his rights to the assistance of counsel and due process under the federal constitution and article first, § 8, of our state constitution. We do not agree.

The defendant concedes that he did not object to the challenged jury instruction but argues that review is proper under State v. Golding, supra, 213 Conn. 239-40. We will review this claim because the record is adequate for review and the defendant alleges the violation of a fundamental constitutional right. See State v. Morant, 242 Conn. 666, 687, 701 A.2d 1 (1997) (defendant’s unpreserved challenge to propriety of jury instruction on law of reasonable doubt satisfies second prong of Golding); State v. Otero, 49 Conn. App. 459, 470, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998) (same). We conclude, however, that the alleged constitutional violation did not clearly exist and did not deprive the defendant of a fair trial.

In State v. Taylor, 239 Conn. 481, 504, 687 A.2d 489 (1996), cert. denied, 521 U.S. 112, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997), our Supreme Court, acting under its supervisory powers, urged trial courts to avoid further use of the phrase “ingenuity of counsel” in instructing juries on the concept of reasonable doubt. See State v. Edwards, 247 Conn. 318, 330, 721 A.2d 519 (1998). The Taylor court stated that “the phrase ‘ingenuity of counsel,’ taken in isolation, conceivably could misdirect the jury’s attention, and we urge trial courts to avoid its further use.” (Emphasis added.) State v. Taylor, supra, 504. Our Supreme Court decided Taylor in December, 1996, and, in the present case, the trial court delivered the challenged instruction in March, 1997.

“At the outset, we note that under . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. ... In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Adorno, 45 Conn. App. 187, 198, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997); see State v. Delgado, 50 Conn. App. 159, 171, 718 A.2d 437 (1998); State v. Pearsall, 44 Conn. App. 62, 68, 687 A.2d 1301, cert. denied, 240 Conn. 910, 689 A.2d 473 (1997).

The defendant neither cites, nor can we locate, any precedent that establishes as a per se rule that a defendant’s unpreserved challenge to a trial court’s use of the phrase “ingenuity of counsel” in its jury instruction on the concept of reasonable doubt satisfies the third prong of Golding. Although we do not condone the trial court’s use of this phrase, after reviewing the jury instruction in its entirety, we conclude on the basis of the record before us that the alleged constitutional violation did not clearly exist and that the defendant was not deprived of a fair trial.

V

In his final claim, the defendant contends that there was insufficient evidence in the record to support the jury’s verdict that he was guilty of sexual assault in the first degree and risk of injury to a child in violation of his right to due process under the federal constitution and article first, § 8, of our state constitution. We do not agree.

The standard of review for a sufficiency of evidence claim is well settled. “Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993); State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).” (Internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997).

In Ingram, this court stated: “We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989). State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. State v. Perez, supra, 227 .... State v. Braxton, [196 Conn. 685, 691, 495 A.2d 273 (1985)]. . . . State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).” (Internal quotation marks omitted.) State v. Ingram, supra, 43 Conn. App. 810.

It bears emphasis that “[i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . State v. DeJesus, supra, 196; see also State v. Sivri, [supra, 231 Conn. 134].” (Internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 490, 698 A.2d 898 (1997).

Furthermore, “[w]e do not sit as the seventh juror when we review the sufficiency of the evidence; State v. King, [supra, 216 Conn. 602]; rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict of guilt beyond a reasonable doubt. Moreover, [ 1 ] n reviewing the jury verdict, it is well to remember that [j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct. . . . State v. Little, supra, 194 Conn. 674.” (Internal quotation marks omitted.) State v. Ford, supra, 230 Conn. 693.

The defendant first claims that there was insufficient evidence in the record to support the jury’s verdict that he was guilty beyond a reasonable doubt of sexual assault in the first degree in violation of § 53a-70 (a) (2) . To prove that the defendant was guilty of this offense, the state must establish beyond a reasonable doubt that (1) the defendant engaged in “sexual intercourse” with the victim, (2) the victim was under thirteen years of age at the time of the incident, and (3) the defendant was more than two years older than the victim at the time of the incident. General Statutes § 53a-70 (a) (2).

The defendant also claims that there was insufficient evidence in the record to support the jury’s verdict that he was guilty beyond a reasonable doubt of risk of injuiy to a child in violation of § 53-21. To prove that the defendant was guilty of this offense, the state must establish beyond a reasonable doubt that (1) the victim was less than sixteen years of age at the time of the incident, (2) the defendant performed an act that was likely to impair the victim’s morals, and (3) the defendant had a general intent to perform such act. General Statutes (Rev. to 1995) § 53-21. “State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980), established] the governing standard for prosecutions involving likely moral impairment of a minor. State v. Schriver, 207 Conn. 456, 465, 542 A.2d 686 (1988). Pickering made it clear that the deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner is violative of General Statutes § 53-21.” (Emphasis in original; internal quotation marks omitted.) State v. Zwirn, 210 Conn. 582, 588, 566 A.2d 588 (1989).

The jury reasonably could have found the following facts. The victim was born on May 28, 1990, and was five years of age at the time of the incident. At the time of the incident, the defendant was more than two years older than the victim. When asked by the trial court, the victim promised to tell the truth and agreed that it was improper to tell a falsehood. On June 25, 1995, the victim’s parents left her and her brother at the apartment of the defendant and his wife. The victim testified that she knew a person named Jack and that Jack did “something bad” to her. After once again promising to tell the truth, the victim testified that Jack touched her “totico,” which she identified as the part of her body that she used to urinate. She stated that Jack removed her pants and touched her “totico” with his tongue, and that Jack’s wife was asleep at the time of the incident. The victim also testified that later that evening when her mother was bathing her, she informed her of the incident and that the perpetrator was named Jack.

The victim’s mother testified that aside from the defendant, she was not acquainted with anyone named Jack. Moreover, at the time of the incident, she was unaware of any other person named Jack who would have had access to the victim. Although the victim was not able to identify the defendant in open court, her mother testified that the defendant had altered his appearance since the date of the incident; he was thinner, his hair was styled differently and his overall appearance was neater. The victim’s mother also testified that while she was bathing her daughter on the evening of June 25,1995, her daughter informed her that she was experiencing pain in her vaginal area and that Jack had caused this pain. The defendant’s wife testified that on June 25,1995, the victim stayed at her apartment, her husband was in the apartment and that no one else named Jack visited the apartment on this date.

We conclude that the cumulative effect of the evidence, including reasonable inferences drawn therefrom, viewed in the light most favorable to sustaining the verdict, was sufficient to justify the jury’s verdict that the defendant was guilty beyond a reasonable doubt of sexual assault in the first degree in violation of § 53a-71 (a) (2) and risk or injury to a child in violation of § 53-21.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1995) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair 1he health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both."

       The victim testified that the term “totico” referred to that part of her body that she used to urinate.

       The defendant offers no argument for separate treatment of his state constitutional claim. Accordingly, we will consider only his federal constitutional claim. See State v. Flanders, 214 Conn. 493, 500 n.4, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990); State v. Sherman, 38 Conn. App. 371, 376 n.3, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995).

       The following colloquy establishes that defense counsel declined to cross-examine the victim:
      "The Court: And as I understand it, the direct examination is completed of the child witness. Is that correct?
      "[Prosecutor]: Yes, Your Honor.
      “The Court: All right. And we will proceed with cross-examination.
      “[Defense Counsel]: Your Honor, I will not be cross-examining the minor child.”

       See footnote 4.

       In his brief, the defendant concedes: “Although defense counsel objected to [the prosecutor’s] statement and sought a curative instruction, counsel did not object on the grounds that the statement of the state’s attorney constituted prosecutorial misconduct.”

       “Under Golding, a defendant can prevail on an unpreserved claim of constitutional error 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. [State v. Golding, supra, 213 Conn. 239-40]. State v. Graham, 33 Conn. App. 432, 441-42, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Otero, 49 Conn. App. 459, 463 n.6, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998).

       We also note that even if we were to afford review of this claim the result would not change because the defendant fails to satisfy the third prong of Golding. After careful review of the entire record, we conclude that the alleged constitutional violation did not clearly exist and that the defendant was not deprived of a fair trial.
      The standard for reviewing this claim is set forth in State v. Garrett, 42 Conn. App. 507, 514-18, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996) (holding that alleged claim of prosecutorial misconduct failed to satisfy third prong of Golding). “In order to deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . 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. . . . State v. Atkinson, 235 Conn. 748, [769], 670 A.2d 276 (1996).” (Internal quotation marks omitted.) State v. Garrett, supra, 515. “In order to 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). In conducting our analysis, ‘we 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, 515-16. “We do not scrutinize each individual comment in a vacuum, but rather ‘we must review the comments complained of in the context of the entire trial.’ State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993).” State v. Chasse, 51 Conn. App. 345, 356, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999).
      Several factors establish that the prosecutor’s isolated statement, when considered in the context of the entire trial, did not so infect the trial with unfairness as to make the resulting conviction a denial of the defendant’s due process right to a fair trial. See State v. Garrett, supra, 42 Conn. App. 517. First, the prosecutor’s statement was made in response to defense counsel’s objection to a question the prosecutor hadposed to Buyak. Second, the statement represented an isolated incident and the defendant neither claims, nor does the record disclose, any additional acts of alleged prosecutorial misconduct. Third, the trial court minimized any potential prejudice by instructing the jury that the arguments of counsel did not constitute evidence. In its final charge, the trial court stated that it was the sole province of the jury to find facts based on the evidence, that the evidence consisted only of the sworn testimony of witnesses and items introduced as full exhibits, and that the arguments and comments of the attorneys did not constitute evidence. Lastly, Buyak’s testimony on cross-examination further minimized any prejudice that may have been caused by the prosecutor’s statement. The defendant contends that the prosecutor’s statement left the jury with the impression that he failed to respond to Buyak’s question and that this silence constituted an admission of guilt. On cross-examination, however, in the presence of the jury, Buyak testified that when she confronted the defendant with the victim’s allegations, he responded that these allegations were unfounded. Buyak’s testimony on cross-examination directly contradicts the impression the defendant claims the jury obtained from the prosecutor’s statement.
      On the basis of those factors, we conclude that the alleged constitutional violation did not clearly exist and that the defendant was not deprived of a fair trial. Having determined that the defendant failed to satisfy the third prong of Golding, further review of this claim is unwarranted.

       The trial court instructed the jury: “It is your function to decide what facts are in this case. And in that respect, you, and you alone, are the sole judges of what the facts are. My function is to instruct you on the law involved in the decision of this case. . . .
      “Now, as I indicated, you decide what the facts are from the evidence presented during the course of the trial. The evidence consists of, one, the sworn testimony of witnesses, both on direct and cross-examination. And, two, the full 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 may not consider them in deciding what that facts are. These include, one, the arguments and statements of the lawyers. That is not evidence. The lawyers are not witnesses. What they have said in their closing arguments or summations, or at other times, is intended to help you interpret the evidence. But it is not evidence. If the fads, as you remember them, differ from the way the lawyers have stated them to you, then, as stated, it is your recollections, your memories, that control.
      “Two. Questions and objections by the lawyers. That is not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by any objection or the court’s ruling on it.
      “Three. Testimony—any testimony that has been excluded or stricken or that you have been instructed to disregard by the court. None of that is evidence. If any evidence has been received for a limited purpose, then you are duty bound to follow any limited—limiting instruction with reference to that evidence and consider [it] only for the purpose for which it was admitted.”

       The defendant claims that this instructional error violated his right to the assistance of counsel under the federal and state constitutions. Because the defendant has failed to brief how the instruction violated his right to the assistance of counsel, we decline to review this claim as it is deemed abandoned. See Nazarko v. Conservation Commission, 50 Conn. App. 548, 550 n.2, 717 A.2d 850, cert. denied, 247 Conn. 940, 723 A.2d 318 (1998).

       See footnote 4.

       The trial court’s instruction on the concept of reasonable doubt in this case was as follows: “That brings me to the subject of burden of proof. The burden to prove the defendant guilty of the—of any crime with which he is charged is upon the state of Connecticut. The defendant does not have to prove his innocence. This means that the state must prove, beyond a reasonable doubt, each and every element necessary to constitute a crime charged.
      “Whether the burden of proof resting upon the state is sustained depends not on the number of witnesses nor the quantity of the testimony, but on the nature and quality of the testimony. Please bear in mind that one witness’ testimony is sufficient to convict if it establishes all the elements of the crime beyond a reasonable doubt.
      “That brings me, ladies and gentlemen, to the term reasonable doubt and the meaning of that term, reasonable doubt. The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture. Nor is it a doubt suggested by the ingenuity of counsel or of a juror not warranted by the evidence. It is such a doubt as, in the serious affairs that concern you, you would heed. That is, such a doubt as would cause reasonable men and women to hesitate to act on it in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused, for the victim or any other persons who might be affected by your decision.
      “It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is a doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.
      “Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law does require that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.
      “Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”

       See footnote 4.

       See footnote 1.

       Cunnilingus constitutes “sexual intercourse” within the meaning of § 53a-70 (a) (2). See General Statutes § 53a-65 (“ ‘[s]exual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingusbetweenpersons regardless of sex”).

       In charging the defendant with this crime, the state relies on the following portion of General Statutes (Rev. to 1995) § 53-21: “Any person who wilfully or unlawfully . . . does any act likely to impair the health or morals of any such child [under the age of sixteen], shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       In part I, we concluded that the trial court properly admitted this testimony from the victim’s mother under the constancy of accusation doctrine.