author: BISHOP, J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. JUAN V.

    (AC 28871)
    Bishop, Beach and Berdon, Js.

      Argued March 17
    officially released July 29, 2008

      Steven L. Seligman, for the appellant (defendant).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robin D. Krawczyk, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s lull name or to identity the victim or others through whom the victim’s identity may be ascertained. See General Statutes 154-86e.

   Opinion

BISHOP, J.

The defendant, Juan V., 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 § 53-21 (a) (2). On appeal, the defendant claims that the trial court made four improper evidentiary rulings and should have granted his motion for a judgment of acquittal on the ground that there was insufficient evidence to sustain the sexual assault conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Between July 5, 2003, and July 4, 2004, the victim, J, spent one to three mornings each week at the house of her grandmother and her grandfather, the defendant, while her parents worked. During this time, J was approximately four years old. Several times, while J was at the defendant’s home, the defendant and J engaged in a “game called break-it.” The game occurred both in the defendant’s bedroom and in the basement, and required that J take off her shirt, pants and underwear. The defendant would remove his shirt and pants and would then take his “peanut,” which J described as “long” with a “circle” and a “hole,” out “from a little hole in his pajama pants.” Then J would lie on top of the defendant or he would lie on top of her and they would both start “jumping on each other.” The defendant “put his peanut in [J’s] tolin” and got “white gooey stuff’ inside of J’s genitalia. After the game was over, the defendant cleaned J’s genitalia with a towel and told her to keep the game a secret.

At trial, both J and the defendant testified. Additionally, a significant amount of testimony was provided through the admission of the videotaped diagnostic and forensic interview that was conducted at the children’s advocacy center at Saint Francis Hospital and Medical Center (advocacy center) after J complained about the sexual assault. At the trial’s conclusion, the jury found the defendant guilty on both charges, and the court sentenced him to the custody of the commissioner of correction for a total effective term of twenty years, suspended after ten years, with twenty years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion by admitting the examining pediatrician’s report into evidence. Specifically, the defendant claims that the pediatrician’s report contained a statement that impermissibly vouched for J’s credibility. We disagree.

At trial, Frederick K. Berrien, a physician, testified for the state that, prior to conducting J’s physical examination, he had read a report, prepared by Annabella Agudelo, summarizing J’s interview at the advocacy center. Berrien relied on Agudelo’s report for J’s medical history and to tailor his examination to J’s allegations. Although the physical examination of J was normal, Berrien testified that a lack of physical findings does not disprove sexual abuse. Berrien explained that since the assault allegedly took place approximately one month before the examination, there would have been time for damage to J’s genitalia to heal. Furthermore, Berrien testified that penetration of the genitalia can occur without entrance as far as the hymen. In the course of Berrien’s testimony, the state moved to admit a copy of the report of J’s physical examination pursuant to the business record exception to the rule against hearsay. The state established, and the defendant did not dispute, that Berrien prepared the report, that it was prepared in the ordinary course of business and that it was completed at or near the time of the examination. The defendant objected to the following line in the report: “A normal exam can be found with sexual contact as revealed in the interview.” The defendant claimed that this sentence amounted to an illegal opinion on an ultimate issue in the case and impermissibly vouched for J’s credibility. The report was admitted over the defendant’s objections.

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) State v. Robles, 103 Conn. App. 383, 401, 930 A.2d 27, cert. denied, 284 Conn. 928, 934 A.2d 244 (2007).

“[A]n expert witness may not testify regarding the credibility of a particular victim.” State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001). Our Supreme Court has “found expert testimony stating that a victim’s behavior was generally consistent with that of a victim of sexual or physical abuse to be admissible, and ha[s] distinguished such statements from expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse. . . . [E]ven indirect assertions by an expert witness regarding the ultimate issue in a case can serve inappropriately to validate the truthfulness of a victim’s testimony.” (Citation omitted.) State v. Iban C., 275 Conn. 624, 635, 881 A.2d 1005 (2005).

Here, the defendant asserts that the phrase, “as revealed in the interview,” constitutes Berrien’s opinion that J’s interview statements alleging sexual assault were true. In making his argument, the defendant asserts that the phrase at issue in Berrien’s report falls into the category of expert opinions deemed to be improper bolstering in Iban C. and Grenier. We disagree.

The statement in question here is distinctly different from the expert testimony found inadmissible in Iban C. and Grenier. In Iban C., the defendant objected to the written report and the direct testimony of the state’s expert witness, a pediatrician, who diagnosed the victim in that case as having been sexually abused despite a normal physical examination. State v. Iban C., supra, 275 Conn. 632-33. On appeal, the Supreme Court found that the testimony under scrutiny usurped the role of the jury by impermissibly bolstering the victim’s credibility. Id., 636-37. In this case, unlike in Iban C., Berrien did not opine that J had been sexually abused; rather, he made the general statement that a normal physical examination is not necessarily inconsistent with sexual abuse.

Grenier is likewise distinguishable from the case at hand. In Grenier, a counselor’s testimony that the victim’s “ ‘statements were very credible’ ”; State v. Grenier, supra, 257 Conn. 802; was inadmissible because it amounted to “a direct assertion that validated the truthfulness of [the victim’s] testimony.” (Internal quotation marks omitted.) Id., 806. Additionally, a clinical psychologist’s testimony that she treated the victim for “ ‘the trauma of the abuse that [she] experienced’ ”; id., 804; was inadmissible because it “constituted an indirect assertion that validated the truthfulness of [the victim’s] testimony.” (Internal quotation marks omitted.) Id., 806. In this case, Berrien did not directly or indirectly validate the truthfulness of J’s testimony. He simply indicated that a normal examination does not belie the occurrence of sexual abuse.

We agree with the court that the segment of the report at issue did not improperly bolster J’s credibility. The statement at issue in Berrien’s report was merely a caveat to his conclusion that J’s physical examination was normal. It did not validate or credit the statements J made in her interview with Agudelo. Accordingly, we conclude that the court did not abuse its discretion by admitting Berrien’s report.

II

Next, the defendant claims that the court improperly permitted the state to bolster J’s credibility on direct examination. Specifically, the defendant argues that the state’s question, “Did you know you were supposed to tell the truth to [Agudelo]?” and J’s affirmative response vouched for her credibility before the defendant had put her credibility at issue on cross-examination. We disagree.

Because the defendant is challenging an evidentiary ruling, our standard of review is whether the court abused its discretion in permitting the testimony. State v. Robles, supra, 103 Conn. App. 401. Evidence that bolsters a witness’ credibility before it has come under attack is prohibited. Conn. Code Evid. § 6-11 (a); C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 6.27.2 (a), p. 342 (discussing prohibition of “[e]vidence accrediting or supporting a witness’s honesty or integrity [before] the witness’s credibility has first been attacked”).

The following additional facts from the trial are pertinent to this issue. At the beginning of the direct examination of J, the state asked:

“Q. Do you remember going to a hospital and talking to a lady named [Agudelo]?
“A. Yes.
“Q. And did you tell her things that happened also?
“A. Yes.
“Q. And the things that you told her, were they true?
“A. Yes.”

The defendant objected to the final question and answer on the ground that the state was improperly attempting to bolster the witness’ credibility. The court agreed to strike the question and answer from the record. Thereafter, as the direct examination of J continued, she related many of the details of the alleged assault; however, some details differed, in particular regarding the issue of penetration, from statements she had made during her videotaped interview with Agudelo at the advocacy center. The following exchange, which is the heart of this claim, ensued:

“Q. And you talked to [Agudelo] about what happened. Right?
“A. Yes. . . .
“Q. And when you were—when you were telling [Agudelo] those things, did you know that you were supposed to tell the truth then?
“[Defense Counsel]: Objection, Your Honor. It improperly seeks to bolster the credibility of an unimpeached witness.
“[The Prosecutor]: No. I’m seeking to lay a foundation in the terms of a six year old.
“The Court: I’ll allow it.
“Q. Did you know that you were supposed to tell the truth to [Agudelo]?
“A. Yes.”

The court did not abuse its discretion in permitting the state to ask J whether she knew she was supposed to tell the truth during her interview with Agudelo because it is reasonable to conclude that the state was attempting to lay a proper foundation for admissibility of the videotape. Shortly after the court permitted the question at issue, the state concluded its direct examination of J and informed the court that it was going to seek to introduce portions of the videotaped interview under the Whelan and past recollection recorded exceptions to the rule against hearsay. Both of these exceptions to the rule against hearsay require the moving party to show that the out-of-court statements were reliable. Consequently, it was reasonable for the court to conclude that the state’s question was not intended to bolster the veracity of J but, instead, was part of the state’s effort to lay the requisite foundation for admissibility of the videotaped interview.

Furthermore, the state’s question about whether J knew she was supposed to tell the truth during the interview is readily distinguishable from the impermissible and previously stricken question of whether she was, in fact, telling the truth. The latter is an improper invasion of the province of the jury, as it seeks to bolster J’s credibility before it has come under attack. In contrast, the former seeks to discern the state of mind of the witness during the interview as a prelude to the admissibility of the videotaped interview.

III

The defendant next claims that the court abused its discretion by admitting portions of the videotaped interview of J pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Specifically, the defendant claims that the state failed to prove that J had personal knowledge of the contents of the videotape, and, therefore, her availability for cross-examination was meaningless. The defendant’s argument is without merit.

The following additional facts are relevant to our disposition of the defendant’s claim. After J reported being sexually assaulted by the defendant, she provided a detailed account of the assaults in a videotaped interview with Agudelo at the advocacy center. J related many of the details of the sexual assaults in her testimony at trial; however, when asked, “[D]id his front private go inside or outside your front private?” she replied, “Outside.” Additionally, when asked, “Did his front private go in your front private?” J responded, “No.” These assertions were inconsistent with the details J provided in the videotaped interview. As a result, the state sought to admit segments of the interview that were inconsistent with her trial testimony under the Whelan exception to the rule against hearsay. The defendant objected, arguing that because J could not recall the substance of her prior videotaped statements, she had no personal knowledge of them; and her lack of memory would deny the defendant meaningful cross-examination. The court overruled the objection and permitted segments of the interview into evidence pursuant to Whelan.

“The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the . . . discretion of the trial court. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 56, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006); accord State v. Saucier, 283 Conn. 207, 217-18, 926 A.2d 633 (2007) (en banc) (adopting “hybrid” approach to review of hearsay claims and concluding that “[w]e review the trial court’s decision to admit evidence, if premised on a correct view of the law ... for an abuse of discretion”). In Whelan, our Supreme Court adopted “a rule allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” State v. Whelan, supra, 200 Conn. 753.

“As with any statement that is admitted into evidence under a hearsay exception, a statement that satisfies the Whelan criteria may or may not be true in fact. But, as with any other statement that qualifies under a hearsay exception, it nevertheless is admissible to establish the truth of the matter asserted because it falls within a class of hearsay evidence that has been deemed sufficiently trustworthy to merit such treatment.” (Internal quotation marks omitted.) State v. Watkins, 72 Conn. App. 804, 810, 806 A.2d 1072 (2002), cert. denied, 263 Conn. 923, 823 A.2d 1216 (2003).

The defendant does not contest that the admitted portions of the videotaped interview were inconsistent with J’s trial testimony or that the process of videotaping satisfied the writing requirement. Rather, the defendant asserts that the witness lacked personal knowledge at the time of trial of the accuracy of her videotaped statements.

“In evaluating whether a declarant has personal knowledge of the facts contained within a prior inconsistent statement, we look to the statement itself. If the statement itself indicates that the basis of the information contained in that statement is the declarant’s personal knowledge, that is sufficient to satisfy the criteria of personal knowledge established by Whelan.” Id., 812. In this case, through an interview, J related events that happened directly to her. This interview was captured on a videotape. The jury was shown the actual tape. Despite the obvious demonstration that J had personal knowledge of the facts that she related in the videotaped interview, the defendant argues that her inability to remember some of the interview at trial rendered her lacking in personal knowledge. Whether a witness repudiates a prior inconsistent statement has no bearing on the reliability of such statement. See State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993). Furthermore, “[allowing a party to circumvent the exception to the hearsay rule established by Whelan merely by repudiating the foundation for his knowledge when that foundation is an element of the statement itself would eviscerate the Whelan exception, potentially leaving no statement admissible under the pertinent rule.” State v. Watkins, supra, 72 Conn. App. 812.

As to the defendant’s claim that J’s faulty memory deprived him of meaningful cross-examination, we are unpersuaded. J was in court, testified as to her ability to distinguish between the truth and a he, and was available to respond to the defendant’s questions. See United States v. Owens, 484 U.S. 554, 561, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988). The defendant was able to avail himself fully of the opportunity to cross-examine J about the inconsistencies between her testimony and the videotaped interview. Her inability at trial to remember certain details about the interview does not render her unavailable for cross-examination. “[Meaningless cross-examination] is not produced by the witness’ assertion of memory loss—which ... is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior statement.” Id., 562; State v. Pierre, supra, 277 Conn. 81. We conclude that the court did not abuse its discretion by admitting segments of the videotaped interview pursuant to Whelan.

IV

The defendant also asserts that the entire videotaped interview was admitted improperly by the court under the medical treatment exception to the rule against hearsay. The defendant contends that because J was not suffering from any physical symptoms, the state failed to prove that J knew that she was providing a statement for the purpose of medical treatment. We disagree.

The following additional facts are pertinent to the defendant’s claim. After J reported the alleged sexual abuse to her parents, her father consulted with members of his church about her complaints. Thereafter, the police received a report of the sexual abuse and sent an officer and an investigator from the department of children and families to speak with J. On May 24, 2004, J was brought to the advocacy center for a diagnostic and forensic interview with the social worker, Agudelo. J was shown the interview room as well as an adjoining room, and she was told that there would be people, including a police officer, in the adjoining room.

After the interview, Agudelo made recommendations to J’s family concerning J’s future care and provided details of the interview for the examining pediatrician, Berrien. Berrien testified that the purpose of his examination was to determine if J needed further medical treatment. In addition, he relied on the details provided by Agudelo in order to understand J’s medical history and to inform his physical examination.

At trial, portions of the videotaped interview were admitted under the Whelan exception to the rule against hearsay, but the state sought to introduce the entire videotape pursuant to the medical treatment exception to the rule against hearsay. To this end, the state elicited testimony from J that she knew that the interview with Agudelo occurred at a hospital and that she thought Agudelo was a physician. J testified that she had been examined by two physicians, Agudelo and a man, who both “checked me [to see] if there was anything wrong.” The defendant objected, inter alia, to the state’s offer on the ground that the state had failed to prove that the statements were made by J for the purpose of obtaining medical treatment. The court admitted the entire videotape over the defendant’s objections.

To the extent that a court admits evidence relying on an interpretation of the Connecticut Code of Evidence, our review is plenary; but here, where the court’s decision was an application of the facts to the law, we afford the trial court’s ruling deference and will only reverse for an abuse of discretion. See State v. Saucier, supra, 283 Conn. 218-20.

Section 8-3 (5) of the Connecticut Code of Evidence (2000) contains an exception to the hearsay rule for “[a] statement made for purposes of obtaining medical treatment or advice pertaining thereto and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical treatment or advice.” “Regardless of whether the statements were made to a physician, they must all have been made in furtherance of medical treatment.” (Internal quotation marks omitted.) State v. Slater, 285 Conn. 162, 186, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008). In fact, the medical treatment exception is not limited to physicians and has been extended to include social workers, as long as the social worker is found to have been “acting within the chain of medical care . . . .” State v. Cruz, 260 Conn. 1, 10, 792 A.2d 823 (2002). “Although [t]he medical treatment exception to the hearsay rule requires that the statements be both pertinent to treatment and motivated by a desire for treatment ... in cases involving juveniles, our cases have permitted this requirement to be satisfied inferentially.” (Citation omitted; internal quotation marks omitted.) State v. Telford, 108 Conn. App. 435, 441-42, 948 A.2d 350, cert. denied, 289 Conn. 905, 957 A.2d 875 (2008).

The record provides ample basis that J gave the statements to obtain medical treatment. J testified that she was brought to a hospital, she believed Agudelo was a physician and the purpose of the interview was to see “if there was anything wrong.” Not only did J believe that she was interviewed for diagnostic purposes, but she did, in fact, receive medical treatment. Agudelo testified that she made recommendations to J’s parents after the interview. Furthermore, the interview fell within the chain of medical care because Berrien adapted his physical examination to J’s reported experiences. On the basis of this evidence, the court did not abuse its discretion by admitting the entire videotaped interview under the medical treatment exception to the rule against hearsay.

V

Finally, the defendant claims that the court improperly denied his motion for a judgment of acquittal as to the count of sexual assault in the first degree because the evidence was insufficient to prove the necessary element of sexual intercourse. Specifically, the defendant contends that the state failed to present any evidence of penetration from which the jury could conclude that he engaged in sexual intercourse with J. We disagree.

“In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every elementproven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . 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 [finder of fact], 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 [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007) (en banc).

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 . . . .” The defendant claims that the state failed to prove beyond a reasonable doubt that the defendant engaged in sexual intercourse with J. General Statutes § 53a-65 (2) defines “sexual intercourse,” in relevant part as, “vaginal intercourse . . . between persons regardless of sex. . . . Penetration, however slight, is sufficient to complete vaginal intercourse . . . and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital . . . opening of the victim’s body.” Connecticut follows the common-law least penetration doctrine in that “the phrase ‘ [p] enetration, however slight’ . . . was intended to cover penetration of the labia majora.” (Citation omitted; internal quotation marks omitted.) State v. Albert, 252 Conn. 795, 806, 750 A.2d 1037 (2000).

The evidence, when construed in the light most favorable to sustaining the jury’s verdict, is sufficient to sustain the defendant’s conviction of sexual assault in the first degree. The court admitted segments of the videotaped interview between J and Agudelo under the Whelan exception to the rule against hearsay during redirect examination of J. J described the defendant’s penetration of her genitalia in her videotaped interview with Agudelo in the following manner:

“Q. So, grandpa took out his peanut. And then what happened? . . .
“A. Grandpa took it out. He had it in a zipper. And he took off his shirt. He took off his pants. And then he had a little hole in his pajama pants. So, he took that out.
“Q. Uh-huh.
“A. And then when I went on top of him, that was gooey.
“Q. It was gooey. What was gooey?
“A. This was a little hole in there that made gooey stuff on it.
“Q. Yeah. A hole in what?
“A. It had a—it had a little hole this small—
“Q. Uh-huh.
“A. —that you can’t really see. And what happened is that—oh. I went—I went on him.
“Q. Uh-huh.
“A. He started making me gooey.
“Q. He made you gooey?
“A. Uh-huh.
“Q. Where were you gooey?
“A. Well, he (unintelligible) tolin, [because] I have a tolin. And he put it right in there. So, it got me gooey.
“Q. Yeah. He put what in your tolin?
“A. He put white gooey stuff.
“Q. White gooey stuff? Where did the white gooey stuff come from?
“A. From his peanut. . . .
“Q. So, he put his peanut in your tolin?
“A. Uh-huh.
“Q. What did that feel like?
“A. It feels like something was going on me. And it started sending a lot of gooey.
“Q. A lot gooey?
“A. Yes.
“Q. What was he doing with his peanut in your tolin? What was he doing?
“A. He started jumping around and doing this.”

Additionally, on recross-examination, the following exchange took place between counsel for the defense and J:

“Q. Okay. Did you hear yourself say on the tape that grandpa got gooey stuff in your tolin? Did you hear yourself—
“A. Yes.
“Q. —on tape say that?
“A. Yes.
“Q. Do you remember—now that we have seen the tape, do you remember saying that?
“A. Yes.
“Q. Is that true that he got gooey stuff in your tolin?
“A. Yes.
“Q. And how do you know that it was in your tolin? Did you feel something that made you think it was in your tolin?
“A. I think so.
“Q. Okay. What did you feel?
“A. I think it—I think . . .
“Q. [J], did you feel any pain?
“A. No.
“Q. No pain at all? You sure about that?
“A. Yes.
“Q. When I say, ‘Did you feel any pain?’ I mean, specifically, in your front private part?
“A. No. There was no pain.”

We agree with the court that J’s testimony reasonably supports the inference that the defendant penetrated J. Specifically, J stated that “he put it right in there,” and she responded affirmatively to the question, “So, he put his peanut in your tolin?” Though J testified during direct examination that the defendant did not penetrate her with his “front private,” after watching the admitted videotaped segments, she did not give any indication that her videotaped testimony was incorrect. In fact, on recross-examination she confirmed that the defendant ejaculated in her and that she thought she felt something inside of her genitalia. Furthermore, to the extent that the jury chose to believe J’s videotaped statements rather than her testimony at trial, “[i]t is well settled that [w]hether [a witness’] testimony [is] believable [is] a question solely for the jury. It is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . [T]he [jury] can . . . decide what—all, none or some—of a witness’ testimony to accept or reject. . . . [Questions of whether to believe or to disbelieve a competent witness are beyond our review . . . .” (Internal quotation marks omitted.) State v. Betancourt, 106 Conn. App. 627, 632 n.1, 942 A.2d 557, cert. denied, 287 Conn. 910, 950 A.2d 1285 (2008).

The defendant also asserts that Agudelo’s question, “So, he put his peanut in your tolin?” was a leading question and, therefore, unreliable. The use of leading questions with children, when appropriate, does not necessarily render their responses untrustworthy. J. Myers, Child Witness Law and Practice (1987) § 4.6, pp. 129-34. Here, the defendant had ample opportunity to cross-examine J about her testimony and to expose weaknesses in her credibility. Ultimately, the determination of what weight to afford particular testimony is the exclusive province of the jury.

Because the jury reasonably could have determined that penetration occurred, we conclude that the court properly denied the defendant’s motion for a judgment of acquittal.

The judgment is affirmed.

In this opinion BEACH, J., concurred.

BERDON, J.,

dissenting. This is a difficult case, not because of the applicable law, but because it involves allegations of sexual assault and abuse of J, a four year old child, allegedly perpetrated by the defendant, Juan V., her grandfather, the thought of which would arouse the emotions of anyone. But we are a nation of laws, and a jury must decide the guilt or innocence of a defendant on the basis of legally admissible evidence. In such cases, it is the duty of this court to rule on claimed errors even when its decision would result in a new trial. In the present case, I believe that the trial court committed error, that the defendant’s conviction of sexual assault in the first degree and risk of injury to a child should be reversed and that a new trial should be ordered on both counts.

After the allegations with respect to the sexual abuse of J came to the attention of the East Hartford police department, a police officer brought J to the Saint Francis Hospital and Medical Center’s children’s advocacy center (advocacy center), a program that is partially funded by the office of the chief state’s attorney. At the advocacy center, J was interviewed by Annabella Agudelo, a “clinical child interview specialist.” The police officer recorded and observed the interview through a one-way mirror. Although J, in her courtroom testimony, denied penetration, a necessary element of sexual assault in the first degree pursuant to General Statutes § 53a-65 (2), during this interview, in response to leading questions by Agudelo, a statement was elicited indicating that there was penetration.

Shortly thereafter, Frederick K. Berrien, a pediatrician and the director of the advocacy center, examined J. At trial, Berrien testified that his examination of J revealed no abnormal findings, and the state offered into evidence his written report, which included the following statements under the heading of “Assessment”: “The anogenital exam on [J] is normal. A normal exam can be found with sexual contact as revealed in the interview [with Agudelo].” (Emphasis added.) Counsel for the defendant timely objected to the admission of the italicized portion of that statement and sought its redaction, arguing that the language improperly vouched for J’s credibility. In fact, during the limited argument that counsel was forced to make in the presence of the jury, counsel was able to refer the court to a Connecticut Supreme Court case that supported his position.

I recognize that the “trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . .

“The determination of the credibility of a witness [however] is solely the function of the jury. ... It is the trier of fact which determines the credibility of witnesses and the weight to be accorded to their testimony. . . . Expert witnesses cannot be permitted to invade the province of the jury by testifying as to the credibility of a particular witness or the truthfulness of a particular witness’ claims. ... An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact.” (Citations omitted; internal quotation marks omitted.) State v. Iban C., 275 Conn. 624, 634-35, 881 A.2d 1005 (2005).

Here, the majority tries to minimize Berrien’s statement by characterizing it as a “general statement that a normal physical examination is not necessarily inconsistent with sexual abuse.” Berrien, however, did not write what the majority would like us to believe. He wrote of the “sexual contact as revealed in the interview” with Agudelo, which, at the very least, was an indirect assertion that J was telling the truth in her interview and should be believed. Our Supreme Court has “noted that even indirect assertions by an expert witness regarding the ultimate issue in a case can serve inappropriately to validate the truthfulness of a victim’s testimony.” (Emphasis added.) State v. Iban C., supra, 275 Conn. 635; see also State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001). The error of allowing this statement into evidence was compounded by the fact that it was in writing and also was made available to the jury as a full exhibit during its deliberations. To make matters worse, the court forced defense counsel to argue his objection regarding the admissibility of Berrien’s statement without first excusing the jury. This must have underscored for the jury its importance in this case. The error of bolstering the credibility of J’s statements made during the interview was further exacerbated when the court permitted the state to elicit from J, over the timely objection of the defendant, that she knew that she had to tell the truth to Agudelo during the interview.

It is clear that “[w]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) State v. Ritrovato, 280 Conn. 36, 56, 905 A.2d 1079 (2006). This requirement is satisfied by showing that “it is more probable than not that the erroneous evidentiary ruling affected the result.” (Internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 353, 904 A.2d 101 (2006).

I come to the conclusion that the error was harmful because of the admission of Berrien’s report into evidence as a full exhibit, because the court required defense counsel to argue the statement’s admissibility in the presence of the jury and because the court allowed the state to elicit from J that she knew that she was required to tell the truth during the interview. Furthermore, because there was no physical evidence of sexual assault or abuse and the only evidence was from J, the case must be characterized as “not particularly strong, especially when the victim is a minor.” State v. Ritrovato, supra, 280 Conn. 57. There was no curative instruction given by the court. Under these circumstances, the admission of Berrien’s statement was harmful. Just as in State v. Ritrovato, supra, 57, because “there was no independent physical evidence of the assault [and abuse] and no other witnesses to corroborate [the victim’s] testimony, her credibility was crucial to successful prosecution of the case.” Berrien’s suggestion that there was “sexual contact as revealed in the interview [with Agudelo]” must have played a significant role in the jury’s determination of guilt. I would therefore reverse the judgment of the trial court and order a new trial on both counts.

Accordingly, I dissent.

       J testified that she played the game with the defendant at other times when she did not take her clothes off.

       During a diagnostic and forensic interview at the children’s advocacy center at Saint Francis Hospital and Medical Center, J demonstrated with dolls and with her body how she and the defendant moved against each other while they were playing this game.

       In the out-of-court statements that were admitted at trial, J used the word “peanut” for male genitalia and “tolin” for female genitalia. At trial, J used the phrase “front private” to describe both male and female genitalia.

       A business record is admissible if the trial court finds that “it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter. ” General Statutes § 52-180; Calcano v. Calcano, 257 Conn. 230, 240, 777 A.2d 633 (2001).

       While we respect the right of our colleague, Judge Berdon, to voice his opposition, we are concerned that the dissent contains a significant misstatement of a core evidentiary issue and that it contains a conclusion about an individual that finds no support in the record. As to the former, the dissent asserts that the written report by Berrien states: “A normal exam can be found with sexual contact as revealed in the interview [with Agudelo],” followed by the notation, “(Emphasis added.).” The dissent fails to acknowledge that the bracketed phrase, “[with Agudelo],” is a creation solely of the dissent and can be found nowhere in the record. This point is significant because the addition of the phrase, “[with Agudelo],” lends support to the defendant’s claim that Berrien’s comment was not a general statement that a normal examination can be consistent with sexual abuse as revealed in the interview that usually precedes his physical examination but, rather, that Berrien was speaking, not in general terms, but specifically about his interview of the victim in this case and was affirming that sexual abuse did, in fact, take place in this instance. The inclusion of the comment, “[with Agudelo],” within the quotation from Berrien’s report effectively changes the witness’ testimony from a general statement to a specific one. That conflation is not supported by the record. Our task on appeal is not to create the record at trial but, rather, to make legal and just determinations on the basis of the record as it comes to us.
      A variation of this problem arises in footnote three of the dissent in which Judge Berdon comments: “It is obvious that because the state relied on this interview to prosecute the defendant, and Agudelo’s employer, the advocacy center, was financed in part by the office of the chief state’s attorney, Agudelo acted, at least in part, in the role of a prosecutor in the interview.” Aside from the obvious impediment that we ought not to be engaging in fact-finding on review, the record is devoid of any support for this factual leap. To the contrary, the record reveals that Agudelo, as a clinical child interview specialist, acted as part of an interdisciplinary team to interview the victim and that her purpose in doing so was to “gather as much accurate information as possible to make decisions for medical and other mental health services.” Additionally, the record is clear that the victim, who was aware that she was in the hospital when the interview took place, thought Agudelo was a physician and was there to help her. Although our colleague may be troubled by the notion of a multidisciplinary team approach to the interviewing of a child, one that may have both criminal investigative as well as medical care purposes, the record in this case lends no support to the notion that everyone who participates in such an interview must be an agent of the prosecution simply because this team approach is financially supported, in part, by the prosecutorial arm of the state.

       The state argues that this claim was inadequately briefed and that we should decline to afford it review. See Connecticut Coalition Against Mill

        stone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008). We believe the analysis is sufficient for review.

        State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

       Under the Whelan exception, “the linchpin of admissibility is reliability: the [Whelan] statement may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process.” State v. Muhktaar, 253 Conn. 280, 306-307, 750 A.2d 1059 (2000).
      Connecticut Code of Evidence § 8-3 (6) defines the past recollection recorded exception as “an event about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness at or about the time of the event recorded and to reflect that knowledge correctly.” Proving that the record was accurate at the time it was made is an essential element of this exception. See State v. Whelan, supra, 200 Conn. 746 n.3 (“[b]ecause the [declarant] was unable to vouch for the accuracy of the statement, it could not be admitted under the past recollection recorded exception to the hearsay rule”).

       Agudelo testified that at the time of the witness’ interview, she was employed as a “clinical child interview specialist,” and she also testified that her educational background includes a master’s degree in social work.

       The defendant argues that because some of the funding for the advocacy center came from the office of the chief state’s attorney, the mission of the advocacy center is more closely aligned with the goals of law enforcement than with the goals of medical treatment. Although the medical treatment exception explicitly requires that the interviewee have the puipose of obtaining medical treatment, we also believe it is implicit in this rule that the interviewer must also have the purpose of providing medical treatment. In this instance, regardless of whatever other purposes this interview protocol may have served, it met the parameters of the exception; J went to the advocacy center for medical treatment, and Agudelo interviewed her to assess her health care needs.

       We note that Bemen, the examining physician, testified that J’s normal physical examination and intact hymen did not disprove the possibility of sexual abuse. He explained that a normal examination does not address the fact that “penetration does not always penetrate as far as the hymen . . . and therefore, there is no damage to the hymen itself, although there can be penetration of the labia, that is, those folds that surround the opening to the genitalia as well as ... to as the external vagina or vestibule, which is external to the hymen itself.”

       As part of his claim, the defendant also asserts that J’s reliability was tainted because Agudelo gave her a teddy bear just before the videotaped interview began. The defendant cites State v. Aponte, 249 Conn. 735, 738 A.2d 117 (1999), in support of this argument. We disagree. In Aponte, the court concluded that the defendant was deprived of due process because the prosecutor gave the complaining witness a doll prior to testifying and because the court limited the defendant’s ability to cross-examine the witness about this impropriety. Id., 737. This case is markedly different from Aponte because in this case, the teddy bear was given to J by a social worker before the social worker conducted a diagnostic and forensic interview, and the defendant was permitted to fully cross-examine J about the teddy bear.

       See footnote 1 of the majority opinion.

       General Statutes § 53a-65 (2) provides: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse, or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.”

       J was given a stuffed animal by Agudelo immediately before the interview commenced, and J was allowed to keep it. It is obvious that because the state relied on this interview to prosecute the defendant, and Agudelo’s employer, the advocacy center, was financed in part by the office of the chief state’s attorney, Agudelo acted, at least in part, in the role of a prosecutor in the interview. “[T]he principle is well established that serious prosecutorial misconduct, regardless of the prosecutor’s intention, may so pollute a criminal prosecution as to require a new trial, even without regard to prejudice to the defendant.” State v. Hafner, 168 Conn. 230, 251, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975).

       I am bewildered by the majority’s footnote six. First, Berrien referred clearly to “the interview.” He did not state “in an interview.” I hope that we can all agree that J was interviewed only once at the advocacy center and that this interview was conducted by Agudelo. Second, it is clearly indicated to the reader that I added “with Agudelo” by placing that phrase in brackets. No matter how the phrase is read, Berrien was in essence writing that J’s statement in the interview was credible. By doing so, Berrien overstepped the limits imposed on expert testimony and invaded the fact-finding province of the jury.

       The defendant does not raise the claim that the court abused its discretion by failing to excuse the jury from the courtroom, notwithstanding that the court’s actions requiring counsel to argue his reasons in front of the jury that such statement be redacted was patently unreasonable and constituted a clear abuse of discretion.

       The following colloquy occurred during the prosecutor’s direct examination of Berrien:
      “[The Prosecutor]: Dr. Berrien, did you perform—I mean, did you write a report in connection with your physical examination of the child in court’s exhibit one?
      “[The Witness]: Yes, I did.
      “[The Prosecutor]: Prepare a report, is what I was trying to say. And I’m showing you, Dr. Berrien, state’s exhibit eight for identification. Do you recognize what that is?
      “[The Witness]: Yes. It’s a copy of my report.
      “[The Prosecutor]: And is that prepared in the ordinary course of business?
      “[The Witness]: Yes, it was.
      “[The Prosecutor]: Is it your ordinary course of business to prepare such a report?
      “[The Witness]: Yes, it is.
      “[The Prosecutor]: And was it prepared at or near the time of the examination?
      “[The Witness]: Yes, it was.
      “[The Prosecutor]: I’d offer it as a full exhibit. . . . The history that’s indicated in this report—from who did you receive that information?
      “[The Witness]: EYom whom did I receive all of the information?
      “[The Prosecutor]: That’s included in your report under the section called ‘history’.
      “[The Witness]: History was in large part obtained from the report of . . . Agudelo.
      “The Court: All right. Subject to the name being redacted, I'll allow it in as a full report.
      “[Defense Counsel]: The court has a copy of the report? Under ‘[assessment,’ Your Honor. The assessment, the second sentence, which I’d rather discuss in the jury’s absence, because I’m certainly saying—tell you that this is—does not belong in this report and should be excluded.
      “The Court: Okay.
      “[Defense Counsel]: So—
      “The Court: I’ve read it, [the] state’s attorney has read it [and the] doctor has previously testified to it. Your objection is overruled.
      “[Defense Counsel]: No, Your Honor. I—excuse me, Your Honor. It’s the last phrase as revealed in the interview is vouching—Your Honor, this is very inappropriate for me to make this argument in the jury’s presence. It’s unfair to the defense. It’s unfair to the jury. The—
      “[The Prosecutor]: May I be—■
      “[Defense Counsel]: The doctor appears to be accepting as true and vouching for the truth of what appears in that phrase. . . . Clearly—clearly is the same error—to permit that would be exactly the same error that the trial court made in [State v. Iban C., 275 Conn. 624, 881 A.2d 1005 (2005)], which would be to permit the witness to render an opinion on the ultimate issue in this case. That last phrase—he may say the earlier part about which he has already testified, but it’s the last phrase, those one, two, three, four, five words that begins with the phrase, ‘as revealed’. That pari, should be redacted.
      “The Court: Do you object to the phrase being redacted?
      “[The Prosecutor]: Yes. He’s saying—what he’s saying is—
      “[Defense Counsel]: Well, Your Honor, what he’s saying is precisely what I’m saying this jury should not hear. . . . It’s a highly inappropriate way to conduct this argument, Your Honor.
      “[The Prosecutor]: And I think I should be able to make my argument.
      “[Defense Counsel]: I ask that the jury be excused.
      “The Court: Well, what we’re really arguing about is Warner’s Grammar. At least that’s the book we used at Hartford High [School]. And I believe this is the subjunctive. And your objection is overruled. You may have an exception.”

       The following colloquy occurred during the prosecutor’s direct examination of J:
      “[The Prosecutor]: Okay. And when you were—when you were telling [Agudelo] those things, did you know that you were supposed to tell the truth then? . . . Did you know that you were supposed to tell the truth to [Agudelo]?
      “[The Witness]: Yes.”


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DAVID L. HAYWOOD
    (AC 26648)
    Bishop, Gruendel and Borden, Js.

      Argued April 14
    officially released August 5, 2008

      Glenn W. Falk, special public defender, with whom, on the brief, was Donald D. Dakers, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, Walter D. Flanagan, former state’s attorney, and Da,vid R. Shannon, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, David L. Haywood, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a), and robbery in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-134 (a). On appeal, the defendant claims that (1) there was insufficient evidence of a completed robbery, and, therefore, the conviction of felony murder and accessory to robbery must be set aside, (2) he was deprived of a fair trial on the felony murder charge because the trial court failed to instruct the jury on the legal definition of attempt for attempt to commit robbery in the first degree and (3) he was deprived of a fair trial because the court’s responses to the jury’s inquiries regarding conspiracy misled the jury. We affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. On October 30, 2002, William Brown and his girlfriend, Ukiah Cunningham, resided in a single-family house in Bethel. Brown’s friend, Kevin Moriarty, was staying with the couple at the time. Brown occasionally sold small amounts of marijuana to his friends. The defendant was acquainted with Brown and had purchased marijuana from him in the past. At the time, the defendant lived in Waterbury with his brother, Bobby Beale, and was romantically involved with Cunningham’s friend, Brandi Nelson.

On that day, Cunningham arrived home from work at about 5:30 p.m. Brown and Moriarty were in the house playing a video game. Shortly after Brown received a telephone call from the defendant asking for directions to his house, the defendant arrived with a tall, skinny, black male who had long, dreadlocks or braids. This man was subsequently identified as Gregory Greene.

Fifteen or twenty minutes later, while Brown was in the dining room talking with Greene and the defendant, another man, later identified as Beale, entered through an unlocked rear door in the kitchen. Beale, who was carrying a gun, wore a bandana over the lower portion of his face, and he pushed Cunningham aside and told her to be quiet. Beale went into the dining room and announced a robbery. In response, Brown asked: “This is a joke, right?” The defendant responded: “No, this is not a joke.” Because the dining room and kitchen are separated by a half wall, Cunningham could hear and see what was happening in the dining room. She testified that the defendant did not appear shocked or surprised by Beale’s actions, nor did he protest his actions.

Moriarty, who was still in the living room playing a video game, could not see into the dining room but heard “forceful talking” and words like “give me this, give me the money, give me the drugs, don’t mess around.” At first, Moriarty was unsure whether a friend of Brown’s was playing a practical joke, but as a precaution, he grabbed a broom as he approached the dining room. As Moriarty turned a corner, Beale put a gun to Moriarty’s chin and said: “Don’t even think about it.” Moriarty indicated that the defendant also had a gun and that both he and Beale were demanding money and drugs, to which Brown responded: “[H]ow could you play me like this?”

As the argument escalated, Brown began to struggle with the defendant, and Moriarty wrestled with Beale. Cunningham had followed Greene into the bedroom because he had started going through her possessions. In the dining room, a gun discharged, and a bullet struck Brown in the forehead. Moriarty testified that it was the defendant’s gun that went off and that when he looked over, the defendant was about one and one-half feet away from Brown. Brown moved backward, and the defendant, who had a gun in his hand, jumped away from him. Moriarty decided to “play dead,” and he “hit the deck.” Cunningham, who had returned from the bedroom before the gun discharged, had not seen the defendant with a gun but testified that at the time the gun went off, the defendant was the person closest to Brown and that they were “[r]ight in front of each other.” Brown died approximately five months later of medical complications associated with the gunshot wound to his head.

Following a jury trial, the defendant was convicted of felony murder, conspiracy to commit robbery in the first degree and robbery in the first degree as an accessory. At the sentencing hearing, the defendant entered a plea of nolo contendere to a charge of violation of probation. The court imposed a total effective sentence of seventy-seven years imprisonment, comprised of sixty years for felony murder; seventeen years for conspiracy to commit robbery in the first degree, consecutive to the felony murder sentence; seventeen years for robbery in the first degree as an accessory, consecutive to the felony murder sentence and concurrent with the conspiracy sentence; and three years concurrent with the other sentences on a separate charge of violation of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that his conviction of felony murder and robbery in the first degree as an accessory must be set aside because the evidence was insufficient to prove a completed robbery. As to the felony murder conviction, this claim merits little discussion because the count of the information charging the defendant with felony murder set forth, as the predicate felony, robbery or attempt to commit robbery. Consequently, if the state’s evidence of attempt to commit robbery by the defendant was sufficient, the failure to prove a completed robbery would not require setting aside the felony murder conviction.

As to the count charging the defendant with being an accessory to robbery, the state concedes that there was insufficient evidence of a completed robbeiy because the evidence was wanting in regard to a larceny, an essential element of a completed robbery. The state posits, however, that the defendant is not entitled to an acquittal but that the case should be remanded to the trial court with direction to modify the judgment rendered on the accessory count to reflect a conviction of accessory to attempt to commit robbery in the first degree. We agree with the state.

Our Supreme Court “has modified a judgment of conviction after reversal, if the record establishes that the jury necessarily found, beyond a reasonable doubt, all of the essential elements required to convict the defendant of a lesser included offense.” (Internal quotation marks omitted.) State v. Greene, 274 Conn. 134, 160, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006). The test used to determine whether one crime is a lesser offense included within another crime is “whether it is not possible to commit the greater offense, in the manner described in the information . . . without having first committed the lesser .... This . . . test is satisfied if the lesser offense does not require any element which is not needed to commit the greater offense.” (Internal quotation marks omitted.) State v. Walker, 87 Conn. App. 251, 255, 865 A.2d 1212, cert. denied, 273 Conn. 915, 870 A.2d 1084 (2005).

Our Supreme Court has held that “attempted robbery in the first degree is a lesser included offense of robbery in the first degree . . . ,” State v. Gould, 241 Conn. 1, 24, 695 A.2d 1022 (1997). In State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), the court held that “[r]obbery differs from attempted robbery only in that the latter requires an act constituting a substantial step toward completion of the robbery, rather than a completed robbery. While some jurors might have believed that the defendant attempted the robbery but did not complete it, and others might have believed that he did, in fact, complete the crime, none could have believed that the defendant completed the robbery without first undertaking a substantial step toward achieving its object. The unanimous verdict of guilty thus necessarily encompassed a unanimous finding that the defendant had at least attempted to commit robbery.” Id., 76-77; see also State v. John, 210 Conn. 652, 689, 557 A.2d 93 (“[a] unanimous verdict of guilty of robbery necessarily encompasses a unanimous finding that the defendant had at least attempted to commit robbery”), cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

In this case, because the jury unanimously found the defendant guilty of a completed robbery, it necessarily found him guilty of attempt to commit robbery. We therefore conclude that the defendant’s conviction of robbery in the first degree as an accessory should be reversed and the case remanded to the trial court with direction to modify the judgment to reflect a conviction of attempt to commit robbery in the first degree as an accessory, and to resentence the defendant in accordance with that conviction.

II

The defendant next claims that he was deprived of a fair trial on the felony murder charge because the court failed to instruct the jury on the legal definition of attempt for attempt to commit robbery in the first degree. We are unpersuaded.

The following additional procedural history is necessary for our review of the defendant’s claim. The defendant was charged with felony murder, predicated on either robbery or attempt to commit robbery. During his argument to the jury, the defendant claimed that the state had failed to prove a completed robbery because there was no evidence that any property had been taken. The defendant conceded, however, that “[t]here was an attempted robbery. I don’t think there’s any doubt about that.” The defendant argued, nevertheless, that the evidence had not established his involvement in the crime or his intent.

In its instructions to the jury regarding felony murder, the court informed the jury several times that this offense was predicated on either an attempt to commit robbery in the first degree or robbery in the first degree. Despite these repeated references to attempted robbery, however, the court did not define the statutory elements of criminal attempt. Following the court’s charge, which included instructions on the elements of robbery in the first degree, the state indicated to the court that its felony murder instructions did not include any definition of attempt under § 53a-49. The state asked the court, first orally and then in the form of a written request, to give the jury an instruction regarding attempt liability. The court, however, declined to instruct the jury regarding the definition of the crime of attempt. The defendant did not object to the court’s failure to charge the jury regarding the statutory definition of attempt, nor did the defendant either join with the state or object to the state’s request that the court give a supplemental instruction on the meaning of the statutory elements of attempt.

Having failed to preserve his claim, the defendant now seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “This court has held that only under the most exceptional circumstances will it consider a claim, constitutional or otherwise, that has not been raised [in] and decided by the trial court. . . . However, [i]t is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Citations omitted; internal quotation marks omitted.) State v. Knight, 56 Conn. App. 845, 849-50, 747 A.2d 13 (2000). Accordingly, we agree with the defendant that “the jury instruction is subject to Golding review because the defendant raises a constitutional claim involving a fundamental right, and the record is adequate for review.” State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995).

“If an improper jury instruction is of constitutional magnitude, the burden is on the state to prove harmlessness beyond a reasonable doubt. ... [A] jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .” (Internal quotation marks omitted.) State v. Cote, 286 Conn. 603, 626, 945 A.2d 412 (2008). “When a jury is misinstructed on an essential element of a crime and a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” (Internal quotation marks omitted.) State v. Youngs, 97 Conn. App. 348, 361, 904 A.2d 1240, cert. denied, 280 Conn. 930, 909 A.2d 959 (2006).

Here, because attempt to commit robbery was a predicate crime to the charge of felony murder, and the court specifically told the jury that it could find the defendant guilty of felony murder on the basis of an attempted robbery, the state’s request for an instruction on the statutory elements of attempt should have been granted. See Small v. Commissioner of Correction, 286 Conn. 707, 727, 946 A.2d 1203 (2008) (“a proper charge on felony murder predicated on an attempt crime should include an instruction on the definition of criminal attempt”).

Nevertheless, the state contends, and we agree, that the omission of an instruction on the statutory elements of attempt was harmless beyond a reasonable doubt because the jury could not have found the defendant guilty of robbery in the first degree as an accessory as charged in the third count without necessarily finding that his conduct amounted to being an accessory to an attempt to commit robbery. Because the jurors could not have believed that the defendant completed the crime of robbery without undertaking a substantial step in furtherance of it; see State v. Jones, supra, 193 Conn. 76; the jury had to have determined beyond a reasonable doubt that the defendant attempted to commit robbery. Accordingly, because, the information would have permitted the jury to have found the defendant guilty of felony murder on the basis of attempt to commit robbery, and one cannot commit a robbery without attempting to do so, the court’s failure to provide the jury with an instruction on the statutory elements of attempt was harmless beyond a reasonable doubt.

III

The defendant finally claims that his right to due process was violated because the court’s responses to two of the jury’s inquiries relating to the crime of conspiracy to commit robbery in the first degree were misleading. We agree.

The defendant was charged with conspiracy to commit robbery in the first degree with a deadly weapon in violation of §§ 53a-48 and 53a-134 (a) (2). During deliberations, the jury asked the court whether “[t]he defendant need have prior knowledge of the presence of a gun to be convicted of conspiracy to commit robbery in the first degree as charged by the state?” In response, the court informed the jury: “[N]o. The conspiracy requires an intent to commit a crime; that, in this case, is a robbery, and there are a number of elements required. An agreement with one or more persons to engage in or cause performance of that criminal conduct, the commission of the act in—overt act in pursuance of the conspiracy. So, my answer to you would be prior knowledge is not an element of conspiracy.”

The jury also asked the court whether, “[i]f the defendant was aware of a fake gun, can he still be convicted [of conspiracy]?” The court informed the jury: “Again, I will indicate that, again, you have already been instructed on the elements of conspiracy. The elements are primarily that if there was an agreement to commit an unlawful act, there was an overt act in furtherance of that agreement, and a deadly weapon, as defined, was imposed or was employed in the commission of the crime.” The defendant did not object to the court’s responses to either of the jury’s inquiries.

The defendant now claims that the court’s response to the jury’s first question was “erroneous and misleading because it did not specifically advise the jury that the intended use of a deadly weapon was a necessary element of the conspiratorial agreement to commit robbery in the first degree as charged in this case.” As to the second question, the defendant claims that the court’s response was “erroneous and misleading because it suggested that it was enough for a deadly weapon to be ‘imposed’ or ‘employed’ while failing to tell the jury that the intended use of the deadly weapon had to be part of the conspiracy agreement entered into by this defendant.”

The defendant did not object to those instructions at trial and now seeks Golding review. We will review the defendant’s claim pursuant to Golding because there is an adequate record, and the defendant’s claim is of constitutional magnitude. We turn to the third prong of Golding, which requires the defendant to establish that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

“The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established .... When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party .... In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . Moreover, as to unpreserved claims of constitutional error injury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if ... it is reasonably possible that the jury was misled. ...” (Internal quotation marks omitted.) State v. Aviles, 107 Conn. App. 209, 229-30, 944 A.2d 994, cert. denied, 287 Conn. 922, 951 A.2d 570 (2008).

Our Supreme Court has stated: “Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to agree or conspire and (b) the intent to commit the offense which is the object of the conspiracy. . . . Thus, \p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 167, 869 A.2d 192 (2005).

In the present case, the court instructed the jury that the crime that the state claimed was the object of the conspiracy was the crime of robbery in the first degree. The court defined the elements of the crime of robbery in the first degree and then instructed the jury that for liability under conspiracy, there must have been an agreement by the defendant with one or more persons to engage in or cause the performance of the crime of robbery in the first degree. Robbery in the first degree, as charged by the state, requires the use of a deadly weapon. In its response to the jury’s inquiry, the court indicated that the defendant, as a conspirator, did not have to have prior knowledge of the intent to use a deadly weapon. Although the court instructed the jury, in its initial charge, that it needed to find that the defendant agreed to all of the elements of robbery in the first degree, including the use of a deadly weapon, in order to find him guilty of conspiracy to commit robbery in the first degree, its response to the jury’s inquiry directly contradicted that instruction. Thus, the court’s response to the jury’s inquiry was incorrect and was reasonably likely to have confused and misled the jury.

We now turn to the fourth prong of Golding and consider whether the state has established that the defect in the charge was harmless beyond a reasonable doubt. As we will discuss, when a jury is misinstructed on an essential element of a crime, such an error is harmless if the reviewing court can conclude beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence. State v. Cote, supra, 286 Conn. 626.

We cannot conclude that the evidence in the present case was so overwhelming as to render the improper instruction harmless. First, the defendant contended that he was not part of the robbery, that he just happened to be present when it happened. Thus, the defendant contested the charge of conspiracy, including the use of a deadly weapon. Although Moriarty testified that the defendant had a gun, Cunningham had not seen the defendant with a gun. There was not overwhelming evidence that the defendant had prior knowledge of or conspired to use a deadly weapon, and the court’s improper response to the jury’s inquiry bore directly on an essential element of the conspiracy charge. Accordingly, we conclude that the state has failed to establish harmlessness beyond a reasonable doubt. We therefore reverse the defendant’s conviction of conspiracy to commit robbery in the first degree.

The judgment is reversed as to the conviction of robbery in the first degree as an accessory and the case is remanded with direction to modify the judgment to reflect a conviction of attempt to commit robbery in the first degree as an accessory; the judgment is reversed also as to the conviction of conspiracy to commit robbery in the first degree and the case is remanded for a new trial on that charge. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       We note that the defendant does not claim, nor could he in light of the record, that the evidence was insufficient to prove that he was guilty of an attempt to commit robbery in the first degree.

       General Statutes § 53a-49 provides in relevant part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in Ms commission of the crime. ...”

       Although in most of the cases that we have reviewed m wMch tMs court or our Supreme Court has modified a judgment to reflect a conviction of a lesser included offense, the jury was instructed on the lesser included offense, we do not believe tMs factor is critical. Rather, the common tMead we find in all cases involving the modification of a criminal judgment is the court’s conclusion on appeal that the jury had to have found that the state proved all the essential elements of the lesser included crime m order to have found the defendant guilty of the greater crime. See State v. Greene,
        supra, 274 Conn. 134; State v. Carpenter, 214 Conn. 77, 85, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992); State v. McGann, 199 Conn. 163, 506 A.2d 109 (1986); State v. Cochran, 191 Conn. 180, 463 A.2d 618 (1983); State v. Scielzo, 190 Conn. 191, 460 A.2d 951 (1983); State v. Coston, 182 Conn. 430, 438 A.2d 701 (1980); State v. Saracino, 178 Conn. 416, 423 A.2d 102 (1979); State v. Grant, 177 Conn. 140, 411 A.2d 917 (1979); State v. Wade, 106 Conn. App. 467, 942 A.2d 1085, cert. granted on other grounds, 287 Conn. 908, 950 A.2d 1286 (2008) (appeal withdrawn June 12, 2008); State v. Guess, 39 Conn. App. 224, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995); State v. McNeil, 21 Conn. App. 519, 574 A.2d 1314, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990); State v. Osman, 21 Conn. App. 299, 573 A.2d 743 (1990), rev'd on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991); State v. Aleksiewicz, 20 Conn. App. 643, 569 A.2d 567 (1990); State v. Horne, 19 Conn. App. 111, 562 A.2d 43 (1989), rev’d on other grounds, 215 Conn. 538, 577 A.2d 694 (1990).
      Additionally, in the one case we have found in which this court, on appeal, modified the judgment of conviction to a lesser included offense without the jury having been charged on the lesser offense, this court noted not only that the jury had to have found all the elements of the lesser offense to find the defendant guilty of the greater offense, but that the jury should have been charged on the lesser included offense. See State v. Ortiz, 71 Conn. App. 865, 879, 804 A.2d 937, cert. denied, 261 Conn. 942, 808 A.2d 1136 (2002).
      Here, as in Ortiz, although the jury was not instructed on the statutory elements of attempt, the lack of such an instruction is not pivotal to our analysis that in order to have found the defendant guilty of the greater offense, the jury had to have found that the state proved all the essential elements of the lesser offense. On this basis, we find neither Ortiz nor the case at hand at variance with our jurisprudence in this area.

       In its argument to the jury, the state argued that it did not need to prove a completed robbery. The state argued: “Felony murder means the defendant . . . either acting alone or with one or more persons, Beale and Greene, commits or attempts to commit robbery. So, it doesn’t even have to be a robbery that comes to completion. It could be an attempt to commit robbery. And in the course ... of or in furtherance of such crime . . . the defendant or another participant, Greene or Beale, causes the death of a person . . . who was not one of the participants.”

       In its initial charge on felony murder, the court made the following references to attempt: “The defendant is charged in the first count with the crime of felony murder in violation of [General Statutes §] 53a-54c of the Penal Code, which provides as follows. ... A person is guilty of murder when acting either alone or with one or more persons, he commits or attempts to commit robbery in the first degree, and in the course of [and in] furtherance of such crime or flight therefrom, he or another participant, if any, causes the death of a person other than one of the participants.
      “[The] [t]hird element the state must prove—again, this is for felony murder proof—that the defendant or another participant caused the death while in the course of and in furtherance of the commission or attempted commission of the crime of robbery in the first degree, or in immediate flight therefrom, and that [the] victim was not a participant. A participant is one who takes part or shares in the underlying crime.
      “By this law, the legislature has provided that when—that when, during the actual commission or attempted commission of robbery in the first degree, or in the immediate flight therefrom, the perpetrator causes the death of another person, the perpetrator is guilty of felony murder.” (Emphasis added.)
      Later, in correcting omissions it made regarding intent, the court instructed as follows regarding attempt as it relates to felony murder: “The defendant is charged with the crime of felony murder in violation of [General Statutes §] 53a-54c of the Penal Code, which provides as follows. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery in the first degree, and in the course of and in furtherance of such crime or flight therefrom, he or another participant, if any, causes the death of another—of a person other than one of the participants.
      “For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: that the defendant, acting alone or with one or more persons, committed or attempted to commit the crime of robbery in the first degree ....
      “The third element is that the defendant or another participant caused the death while in course of and in furtherance of the commission or attempted commission of the crime of robbery in the first degree, or in immediate flight therefrom, and the victim was not a participant.
      “A participant is one who takes part or shares in the underlying crime. By this law—by this law, the legislature has provided that when, during the actual commission or attempted commission of robbery in the first degree or in the immediate flight therefrom, the perpetrator causes the death of another person, the perpetrator is guilty of felony murder.” (Emphasis added.)

       Following the court’s instructions to the jury, the prosecutor indicated: “Your Honor, it occurs to me—and I’m not trying to be difficult, but it occurs to me that . . . that there was no definition of larceny in the felony murder statute as had previously been, and now that definition’s in there. And as I read the court’s charge, nowhere in the charge is the law of criminal attempt—has the jury heard what criminal attempt is. And I think the jury should hear a charge on the law of criminal attempt, the standard charge. . . .
      “Because in a sense, although I haven’t formally asked for a lesser included offense charge of robbery, the definition of felony murder is that, in the course of a robbery or attempted commission of a robbery. And the jury has no definition of what attempt is.”

       Under Golding, “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 state’s position finds further support in Small v. Commissioner of Correction, supra, 286 Conn. 707. In Small, the trial court instructed the jury that in order to find the petitioner guilty of conspiracy to commit robbery in the first degree and felony murder, it had to conclude that he had the mental state required to commit the crime of robbery. Id., 728-29. The jury returned a verdict of guilty of conspiracy to commit robbery in the first degree and felony minder. Id., 729. Although our Supreme Court found that the trial court should have instructed the jury on the definition of attempt, the Supreme Court held that “it is beyond question that the jury found that the petitioner possessed the requisite intent to commit a robbery” and concluded that “with respect to the element of intent, the trial court’s failure to charge on attempt was harmless.” Id. The Supreme Court noted that the jury rejected the petitioner’s defense of mere presence and returned a guilty verdict on the counts of conspiracy to commit robbery in the first degree and felony murder and concluded that “[o]n the basis of the jury’s verdict, the jury must have found that the petitioner possessed a criminal purpose, i.e., the intent to commit robbery.” Id., 730.

       Our analysis of harmlessness regarding the court’s failure to provide the jury an instruction on the statutory elements of an attempt flows from our discussion of modified judgments relating to the third count in which the defendant was charged with being an accessory to a completed robbery. In other words, our determination regarding the third count, which is that the jury had to have found that the defendant attempted to commit a robbery in order to have found him guilty of a completed robbery, obviates the need for further analysis of whether the court’s failure to elucidate the statutory definition regarding attempt as it relates to the predicate offense of attempt to commit robbery in the felony murder count could have misled the jury.

       General Statutes § 53a-48 (a) provides: “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-134 provides in relevant part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery ... or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       See footnote 11 of this opinion.

       We acknowledge that in State v. Crosswell, 223 Conn. 243, 256, 612 A.2d 1174 (1992), the court posed, without answering, the following question: “If two or more persons conspire to take particular property from someone who has a superior right of possession, and agree to do so peacefully, do subsequent changes in the modus operandi to accomplish the taking operate to discharge a willing participant from culpability?” Because, in Crosswell, the decisive issue was sufficiency of the evidence, and the court found that the requisite conspiratorial intent could be inferred from the circumstances of the commission of the conspired crime, the court did not have to answer its question.
      Additionally, to the extent that Crosswell discusses the notion of an enlarged criminal enterprise, we note that the specific holding of CrossweU, was that the evidence of the defendant’s behavior as a participant in the crime of robbery in the first degree was sufficient to prove, by inference, that the defendant had conspired to commit the crime in the manner in which it took place. We believe, moreover, that the question posed in Crosswell was later answered in Padua, which, as noted, held that, for culpability, one must conspire to commit the particular crime and not merely to perform an undefined criminal act.

       Because we reverse the conspiracy conviction on this ground, we need not address the court’s response to the jury’s second inquiry.