State v. Williams

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STATE OF CONNECTICUT v. CHARLES WILLIAMS

(AC 37923)

Lavine, Alvord and Beach, Js.

Argued February 14—officially released May 9, 2017

(Appeal from Superior Court, judicial district of

Hartford, Suarez, J. [motion for recusal]; Alexander, J.

[plea proceeding].)

Donald F. Meehan, assigned counsel, with whom, on

the brief, was Walter C. Bansley IV, for the appellant

(defendant).

Sarah Hanna, assistant state’s attorney, with whom,

on the brief, were Gail P. Hardy, state’s attorney, and

Donna Mambrino, supervisory assistant state’s attor-

ney, for the appellee (state).

Opinion

ALVORD, J. The defendant, Charles Williams, appeals

from the judgment of conviction, rendered after a jury

trial, of one count of unlawful restraint in the first

degree in violation of General Statutes § 53a-95. The

jury found the defendant not guilty of two counts of

sexual assault in the first degree in violation of General

Statutes § 53a-70 (a) (1). Following the jury verdict, the

defendant pleaded guilty to being a persistent serious

offender in violation of General Statutes § 53a-40 (c).

On appeal, the defendant claims that (1) there was

insufficient evidence presented at trial to support his

conviction of unlawful restraint in the first degree; (2)

the trial court abused its discretion by denying his

motion to reconsider his oral motion for recusal; and

(3) the prosecutor violated his right to a fair trial by

committed certain improprieties during closing argu-

ment. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the

jury reasonably could have found the following facts.

The victim1 and the defendant met in 2001 and began

dating in 2007. Over time, the defendant became physi-

cally, verbally, and emotionally abusive. On some occa-

sions, the victim reported the defendant’s abuse to the

police, friends, or family, but, on other occasions, she

did not report the abuse because she learned that she

‘‘had to kind of pick [her] battles’’ with the defendant.

In April, 2012, the victim decided to end her relationship

with the defendant. The defendant was upset and began

stalking the victim. During this period, the victim and

the defendant filed police reports against each other,

and, as a result of one of the defendant’s complaints,

the victim was criminally charged.2

The victim thereafter moved from Bloomfield to Hart-

ford and changed her phone number on several occa-

sions. Nevertheless, the defendant continued to come

to the victim’s house and call her even though the victim

told him that she did not want to be in a relationship

with him and that she wanted him to stop contacting

her. When confronting the victim, the defendant would

often threaten to call the police and make false reports

so that she would be taken away from her family.3

During this period, the victim acquiesced on several

occasions to having sexual intercourse with the defen-

dant because she knew that he would leave her

house afterward.

On February 14, 2013, the victim was at home with

her infant grandson (February 14 incident). The victim

put her grandson down for his nap in her bedroom at

10 a.m. Sometime thereafter, while the victim’s grand-

son was still napping, the defendant arrived at her house

and began yelling at her because he believed that she

was sleeping with other men. The victim asked the

defendant to leave her house, but he continued to yell

at her. The victim told the defendant that she was not

sleeping with anyone else and asked him to speak more

quietly because her grandson was taking his nap. The

defendant demanded sexual intercourse and threatened

to file a false police report against the victim if she did

not have sexual intercourse with him.

As the defendant advanced on her, the victim backed

away from the defendant and into her bedroom. Follow-

ing her into the bedroom, the defendant pulled a knife

out of his pocket and told the victim to ‘‘stop acting

up.’’ The victim again asked the defendant to leave, but

the defendant told the victim to perform oral sex on

him because it was Valentine’s Day. When the victim

continued to refuse, the defendant grabbed the victim

by her hair and threw her down on the bed, and the

victim fell onto the floor.

The victim began performing oral sex on the defen-

dant. When the victim began crying, the defendant

became angry and ordered her to stop crying because

she was ‘‘making [him] soft.’’ When the victim continued

to cry, the defendant threw her on the bed, pulled down

her pants, and vaginally penetrated her from behind

while holding her down on the bed by her arms. When

the victim heard her grandson crying, she asked the

defendant to stop, but he continued to penetrate her

until he ejaculated. The defendant complained that the

victim ‘‘ruined his sex’’ and then left her house.

On February 28, 2013, the defendant returned to the

victim’s house while she was there with her daughters

and grandsons (February 28 incident). The defendant

demanded to know her new phone number and with

whom she was having sexual intercourse. The situation

escalated and the defendant punched the victim in the

face, breaking her nose. Thereafter, the defendant left

her house. The victim did not want to report the incident

to the police, but one of her daughters called the police

that same day. Although the victim spoke to the investi-

gating officer and identified her assailant as a former

boyfriend, she refused to provide the defendant’s name

at that time because she was afraid of him.

Following the February 28 incident, the victim began

living in domestic violence shelters and stopped going

to her house and telling people where she was living

in an attempt to get away from the defendant. During

this period, the victim received medical and psychologi-

cal treatment. Assisted by the psychological treatment

she was receiving, in April, 2013, the victim decided to

identify the defendant as her assailant in the February

28 incident. In September, 2013, the victim further

reported the February 14 incident to the police.

The defendant was arrested in connection with the

February 14 incident and charged with two counts of

sexual assault in the first degree and one count of

unlawful restraint in the first degree. While the defen-

dant was incarcerated and awaiting trial, he frequently

spoke about his case with Elon Henry, a fellow inmate

with whom he was previously acquainted. On December

5, 2014, three days before the defendant’s trial was

scheduled to commence, the defendant told Henry that

‘‘this girl [i.e., the victim] got me going through it right

now. I’m a kill this girl . . . with my bare hands, and

if I don’t kill her I’m a get close and I’m a make her

give me head for like an hour this time.’’ The threatening

manner in which the defendant spoke concerned Henry,

and he reported the defendant’s statement to a correc-

tional officer that evening.

Trial commenced on December 8, 2014. The defen-

dant presented an alibi defense, supported by his own

testimony and the testimony of his mother, his sister,

his nephew, and his girlfriend’s cousin. The jury found

the defendant guilty of unlawful restraint in the first

degree but not guilty of the two counts of sexual assault

in the first degree. Following the jury verdict, the defen-

dant pleaded guilty to being a persistent serious felony

offender. The defendant was sentenced to ten years

imprisonment. This appeal followed. Additional facts

will be set forth as necessary.

I

We begin with the defendant’s claim that there was

insufficient evidence presented at trial to convict him

of unlawful restraint in the first degree. Specifically, the

defendant claims that there was insufficient evidence as

to the elements of restraint and intent.4 We disagree.

We begin with the standard of review and legal princi-

ples that guide our analysis.5 ‘‘In reviewing the suffi-

ciency 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 con-

strued 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 element proven

beyond a reasonable doubt in order to find the defen-

dant 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. . . .

‘‘Finally, [a]s we have often noted, proof beyond a

reasonable doubt does not mean proof beyond all possi-

ble doubt . . . nor does proof beyond a reasonable

doubt require acceptance of every hypothesis of inno-

cence 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 evi-

dence that supports the [finder of fact’s] verdict of

guilty.’’ (Internal quotation marks omitted.) State v.

Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).

‘‘A person is guilty of unlawful restraint in the first

degree when he restrains another person under circum-

stances which expose such other person to a substantial

risk of physical injury.’’ General Statutes § 53a-95 (a).

‘‘[T]he hallmark of an unlawful restraint . . . is a

restraint.’’ State v. Salamon, 287 Conn. 509, 530, 949

A.2d 1092 (2008). ‘‘As applicable to § 53a-95 (a), [p]er-

sons are restrained when their movements are inten-

tionally restricted so as substantially to interfere with

their liberty, either (1) by moving them from one place

to another, or (2) by confining them either to the place

where the restriction commences or to the place where

they have been moved without their consent. General

Statutes § 53a-91 (1).’’ (Internal quotation marks omit-

ted.) State v. Youngs, 97 Conn. App. 348, 354, 904 A.2d

1240, cert. denied, 280 Conn. 930, 909 A.2d 959 (2006).

Furthermore, unlawful restraint in the first degree

requires that the defendant had the specific intent to

restrain the victim. State v. Salamon, supra, 287 Conn.

570. Specific intent is ‘‘an intent to bring about a certain

result.’’ Id., 572. Thus, to prove unlawful restraint in

the first degree, the state must also ‘‘establish that the

defendant had restricted the victim’s movements inten-

tionally and unlawfully in such a manner as to interfere

substantially with her liberty by confining her without

her consent.’’ (Emphasis in original; internal quotation

marks omitted.) Id., 573.

‘‘Because direct evidence of an accused’s state of

mind typically is not available, his intent often must be

inferred from his conduct, other circumstantial evi-

dence and rational inferences that may be drawn there-

from. . . . For example, intent may be inferred from

the events leading up to, and immediately following,

the conduct in question . . . the accused’s physical

acts and the general surrounding circumstances. . . .

[W]hen a jury evaluates evidence of a defendant’s intent,

it properly rel[ies] on its common sense, experience

and knowledge of human nature in drawing inferences

and reaching conclusions of fact.’’ (Citations omitted;

internal quotation marks omitted.) State v. Winot, 294

Conn. 753, 768, 988 A.2d 188 (2010).

In support of his claim, the defendant argues that

there was insufficient evidence to convict him of unlaw-

ful restraint because the charge was based on the vic-

tim’s testimony, which the jury necessarily discredited

because it found him not guilty of the two counts of

sexual assault in the first degree. The defendant’s argu-

ment fails to recognize that in determining the credibil-

ity of witnesses the jury may decide ‘‘what—all, none,

or some—of a witness’ testimony to accept or reject.’’

(Internal quotation marks omitted.) State v. Victor C.,

145 Conn. App. 54, 61, 75 A.3d 48, cert. denied, 310

Conn. 933, 78 A.3d 859 (2013). On appeal ‘‘[w]e do not

sit as a [seventh] juror who may cast a vote against the

verdict based upon our feeling that some doubt of guilt

is shown by the cold printed record. . . . Rather, we

must defer to the jury’s assessment of the credibility

of the witnesses based on its firsthand observation of

their conduct, demeanor and attitude.’’ (Internal quota-

tion marks omitted.) State v. Jason B., 111 Conn. App.

359, 363, 958 A.2d 1266 (2008), cert. denied, 290 Conn.

904, 962 A.2d 794 (2009).

The dispositive question before this court is whether

the victim’s testimony provided the jury with a reason-

able basis on which it could conclude that the state

proved beyond a reasonable doubt each of the elements

of § 53a-95 (a) and, thus, provided the jury with a suffi-

cient basis on which it could find the defendant guilty

of that charge. See State v. Victor C., supra, 145 Conn.

App. 61 (‘‘the jury may find a defendant guilty based

solely on the testimony of one witness’’). At trial, the

victim testified that during the course of her encounter

with the defendant on February 14, she repeatedly

asked him to leave her house and repeatedly refused

his requests for sexual intercourse. Once their argument

moved to her bedroom, the defendant pulled out a knife,

told her, ‘‘stop acting up,’’ and asked her to perform

oral sex. When she continued to refuse, he grabbed her

by the hair and threw her onto her bed. Thereafter,

the victim submitted to performing oral sex. When her

crying upset the defendant, however, he picked her up

and pinned her on the bed by her arms so that he could

penetrate her vaginally from behind, and he continued

to hold her on the bed even after she asked him to stop.

Viewing this testimony as we must, in a light most

favorable to sustaining the jury’s verdict, we conclude

that the jury reasonably could have found beyond a

reasonable doubt that the defendant intentionally and

unlawfully restricted the victim’s movements in such a

manner as to interfere substantially with her liberty.

Cf. State v. Rice, 167 Conn. App. 615, 621–22, 142 A.3d

1267 (defendant, while trying to determine whether vic-

tim stole his bag, briefly held victim’s hand, blocked

her egress from restroom, and discouraged her from

calling for help), cert. denied, 323 Conn. 932, 150 A.3d

232 (2016); State v. Jason B., supra, 111 Conn. App. 366

(defendant grabbed victim her by arm and pulled her

back into car as well as held his hand over her face to

prevent her from breathing, pinned her arm behind her

head, and climbed on top of her against her will); State

v. Pauling, 102 Conn. App. 556, 565–66, 925 A.2d 1200

(defendant slapped victim, struggled with her, grabbed

her by throat, and threw her onto bed), cert. denied,

284 Conn. 924, 933 A.2d 727 (2007); State v. Luster, 48

Conn. App. 872, 880–81, 713 A.2d 277 (elderly victim

struggled with and resisted defendant, who was on top

of her and using force to keep her in bed), cert. denied,

246 Conn. 901, 717 A.2d 239 (1998). Accordingly, there

was sufficient evidence to convict the defendant of

unlawful restraint in the first degree.

II

We next address the defendant’s claim that the court

abused its discretion by denying his ‘‘motion to recon-

sider [his] oral motion for recusal.’’ The state responds

that the defendant’s claim is unreviewable because he

failed to provide an adequate record for review. We

agree with the state.

The following additional facts are relevant to this

claim. On December 1, 2014, the defendant orally asked

the court to recuse itself because the court had presided

over his violation of probation hearing one year earlier

and had found him to be in violation of his probation.

That same day, the court orally denied the defendant’s

motion. On December 5, 2014, three days before the

commencement of trial, the defendant filed a written

motion to reconsider his oral motion for recusal

(motion for reconsideration). On December 8, 2014, the

court, without hearing further from either party, stated

that it had granted the defendant’s motion for reconsid-

eration, reconsidered the issue, and denied the relief

requested therein for the same reasons articulated in

its December 1, 2014 oral ruling, which the court then

briefly summarized.6

Practice Book § 1-23 provides: ‘‘A motion to disqualify

a judicial authority shall be in writing and shall be

accompanied by an affidavit setting forth the facts relied

upon to show the grounds for disqualification and a

certificate of the counsel of record that the motion is

made in good faith. The motion shall be filed no less

than ten days before the time the case is called for trial

or hearing, unless good cause is shown for failure to

file within such time.’’

We have previously held that ‘‘Practice Book § 1-23

creates a mandatory procedure to be followed by any

party seeking to recuse a judge . . . and, if a party fails

to follow such procedures, the record is deemed to be

inadequate for our review because they are a condition

precedent to a hearing on a judge’s disqualification.

. . . Further, [r]epresentations made by counsel are

not evidence in the record upon which we can rely in

our review of the judge’s conduct. . . . The lack of a

recusal hearing leaves the record bereft of any factual

basis upon which we may base our review.’’ (Citations

omitted; internal quotation marks omitted.) Olson v.

Olson, 71 Conn. App. 826, 830, 804 A.2d 851 (2002);

accord State v. Teel, 42 Conn. App. 500, 506, 681 A.2d

974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996);

State v. Weber, 6 Conn. App. 407, 412–13, 505 A.2d 1266,

cert. denied, 199 Conn. 810, 508 A.2d 771 (1986).

We conclude that the defendant has failed to provide

an adequate record for review because he failed to

follow the procedures in Practice Book § 1-23. Although

the defendant filed a written motion for reconsideration

and a certificate of good faith, he failed to provide ‘‘an

affidavit setting forth the facts relied upon to show

the grounds for disqualification’’ or good cause for his

failure to file his motion ‘‘ten days before the time the

case is called for trial or hearing . . . .’’ Practice Book

§ 1-23. In addition, the defendant has not provided this

court with the transcript from the December 1, 2014

hearing. See footnote 4 of this opinion.7 Because the

court expressly relied on its December 1, 2014 oral

ruling when denying the defendant’s motion for recon-

sideration, it is impossible for this court to review the

defendant’s claim that the court abused its discretion

by not recusing itself without knowing the full factual

and legal basis for the court’s December 1, 2014 ruling.

See State v. Ruscoe, 119 Conn. App. 834, 841, 989 A.2d

667 (‘‘[a] lack of pertinent factual findings and legal

conclusions will render a record inadequate’’ [internal

quotation marks omitted]), cert. denied, 296 Conn. 903,

992 A.2d 330 (2010).

Accordingly, we decline to review the defendant’s

claim because the record is inadequate for review.

III

The defendant’s final claim is that the prosecutor

committed certain improprieties during closing argu-

ment and thereby deprived him of his constitutional

right to a fair trial. In particular, the defendant claims

that during rebuttal argument the prosecutor improp-

erly (1) appealed to the emotions, passions, and preju-

dices of the jury, (2) asked the jury to identify with the

victim, and (3) referred to a document not in evidence.8

The state responds that the defendant’s claims are inad-

equately briefed or, alternatively, that they fail on the

merits. Although the defendant’s claims of prosecu-

torial impropriety are adequately briefed for appellate

review, we conclude that he has failed to establish that

the prosecutor committed any improprieties during

closing argument. Accordingly, we reject the defen-

dant’s claims.

We review claims of prosecutorial impropriety under

a two step analytical process. ‘‘The two steps are sepa-

rate and distinct. . . . We first examine whether prose-

cutorial impropriety occurred. . . . Second, if an

impropriety exists, we then examine whether it

deprived the defendant of his due process right to a

fair trial. . . . In other words, an impropriety is an

impropriety, regardless of its ultimate effect on the fair-

ness of the trial. Whether that impropriety was harmful

and thus caused or contributed to a due process viola-

tion involves a separate and distinct inquiry.’’ (Citations

omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978

(2007). ‘‘The defendant bears the burden of satisfying

both of these analytical steps.’’ State v. O’Brien-Veader,

318 Conn. 514, 524, 122 A.3d 555 (2015).

‘‘[P]rosecutorial [impropriety] of a constitutional

magnitude can occur in the course of closing argu-

ments. . . . [B]ecause closing arguments often have a

rough and tumble quality about them, some leeway

must be afforded to the advocates in offering arguments

to the jury in final argument. [I]n addressing the jury,

[c]ounsel must be allowed a generous latitude in argu-

ment, as the limits of legitimate argument and fair com-

ment cannot be determined precisely by rule and line,

and something must be allowed for the zeal of counsel

in the heat of argument.’’ (Internal quotation marks

omitted.) State v. Elias V., 168 Conn. App. 321, 347,

147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d

386 (2016).

A

The defendant first claims that the prosecutor

improperly appealed to the jury’s emotions and improp-

erly asked the jury to identify with the victim when she

argued: ‘‘It’s a coping mechanism. You may not have

done it. I certainly would never have done it, but that’s

here.’’ The state responds that this remark, when viewed

in context, was a proper counterargument to the defen-

dant’s suggestion that the defendant and the victim were

engaged in a consensual sexual relationship. We agree

with the state.

Our Supreme Court ‘‘has recognized on numerous

occasions that [a] prosecutor may not appeal to the

emotions, passions and prejudices of the jurors. . . .

[S]uch appeals should be avoided because they have

the effect of diverting the [jurors’] attention from their

duty to decide the case on the evidence. . . . When

the prosecutor appeals to emotions, he invites the jury

to decide the case, not according to a rational appraisal

of the evidence, but on the basis of powerful and irrele-

vant factors which are likely to skew that appraisal.’’

(Internal quotation marks omitted.) State v. Long, 293

Conn. 31, 54, 975 A.2d 660 (2009). An improper appeal

to the jurors’ emotions can take the form of ‘‘a plea for

sympathy for the victim . . . .’’ Id., 59.

During closing argument in the present case, defense

counsel highlighted the victim’s testimony that ‘‘all the

way up until February 14, 2013, she was in a consensual

sexual relationship with [the defendant].’’ In response,

during rebuttal argument, the prosecutor made the fol-

lowing remarks: ‘‘[The defendant] claims they had a

consensual sexual relationship prior to this. You use

your own judgment. Do you think it’s consensual when

someone is repeatedly abusing you verbally, physically,

yelling at you, who you sleeping with, who you sleeping

with when the whole time they’re not boyfriend and

girlfriend anymore. He’s got a girlfriend. He has a child.

And he repeatedly comes over and harps on this over

and over and over again. Who you sleeping with? Who

you sleeping with? Just tell me the truth. The same

thing, and then he said, well, if you’re not sleeping with

anybody, then you could sleep with me. She just gives

in. That’s not consensual sex, ladies and gentlemen.

She told you the reasons she gave in was just to [get]

rid [of] him. And every time she did it, he left. That was

her way of coping. It’s a coping mechanism. You may

not have done it. I certainly would never have done

it, but that’s here. That’s a woman who’s been in this

relationship for seven years. It’s her coping mecha-

nism.’’ (Emphasis added.)

The defendant argues that the emphasized remarks

by the prosecutor improperly suggested to the jury that

the victim’s prior sexual relationship with the defendant

was ‘‘something other than consensual.’’ The defendant

contends that ‘‘[t]his manner of speaking to the jury is

clearly for the sole purpose of evoking sympathy for

the [victim] when she consented to sexual intercourse

in the past, and evoking outrage at the [d]efendant for

putting the complainant in a position of deciding

whether or not to have consensual intercourse with

him.’’ We disagree.

The prosecutor’s ‘‘coping mechanism’’ remark, when

read in context, was not designed to encourage the jury

to decide the case on the basis of sympathy for the

victim rather than a rational appraisal of the evidence

presented at trial. To the contrary, the purpose of the

prosecutor’s remark was to remind the jurors that they

must review the evidence objectively and from the per-

spective of a reasonable person, rather than on the

basis of their personal dislikes, opinions, or prejudices

about the victim’s actions. That is, the prosecutor was

reminding the jurors that they must consider the evi-

dence presented at trial concerning the victim’s rela-

tionship and history with the defendant and then decide

whether, on the basis of that evidence and their own

common sense, it was reasonable to infer that the victim

consented to sexual intercourse with the defendant on

February 14, 2013.

We conclude therefore that the prosecutor’s coping

mechanism remark did not appeal improperly to the

jurors’ emotions or exhort them to decide the case on

anything other than the evidence presented to them.

B

The defendant also claims that another portion of the

prosecutor’s remarks violates the prohibition against

‘‘golden rule’’ arguments.9 The state responds that the

prosecutor’s remarks ‘‘did not violate the ‘golden rule’

because they did not ask the jury to evaluate the case

on something other than the evidence, such as emotion,

passion, bias or sympathy.’’ We agree with the state.

‘‘[A] golden rule argument is one that urges jurors to

put themselves in a particular party’s place . . . or into

a particular party’s shoes. . . . Such arguments are

improper because they encourage the jury to depart

from neutrality and to decide the case on the basis of

personal interest and bias rather than on the evidence.

. . . They have also been equated to a request for sym-

pathy. . . . The danger of these types of arguments

lies in their [tendency] to pressure the jury to decide

the issue of guilt or innocence on considerations apart

from the evidence of the defendant’s culpability.’’ (Cita-

tions omitted; internal quotation marks omitted.) State

v. Long, supra, 293 Conn. 53–54.

During the victim’s testimony, an issue arose con-

cerning whether the victim’s testimony about the timing

of the February 14 incident was inconsistent with her

statement to the police. In particular, the victim testified

that the February 14 incident occurred sometime after

she put her grandson down for his nap at 10 a.m. During

cross-examination, defense counsel attempted to

impeach the victim’s testimony by highlighting the fact

that in her police statement she reported that the inci-

dent occurred in the ‘‘mid-afternoon,’’ not at 10 a.m.

The victim responded that she told the detective who

took her statement that the incident occurred sometime

between ‘‘[m]id to afternoon,’’ which she understood

to mean between 10 a.m., when she put her grandson

down for his nap, and 2:30 p.m., when her daughter

returned home from school. Defense counsel thereafter

suggested that the victim changed the time frame of

the February 14 incident to earlier in the day when she

learned that the defendant claimed that he was picking

up his mother from the hospital in the mid-afternoon.

During closing argument, defense counsel argued in

relevant part that the victim was not credible because

of this discrepancy between her testimony and her

statement to the police about the timing of the February

14 incident. The prosecutor responded first by

reviewing the victim’s testimony concerning the timing

of the February 14 incident, including the circum-

stances surrounding her statement to the police and

her discussions with the prosecutor in preparation for

trial. The prosecutor then made the following remarks:

‘‘When someone comes into your house, and you know

what’s happened in the past with this man, you know

what he’s doing, he’s screaming at you, he’s yelling at

you, he’s telling you you’re going to have sex, he’s

forcing you to give oral sex, he holds you down on the

bed, he makes you have vaginal intercourse with him,

while he’s holding you down, while you’re crying,

while you’re screaming, while your twenty-two month

old grandson is in that room crying and screaming,

do you stop and look at the clock? Do you make note

of it while that trauma is happening to you? Absolutely

not. It’s totally unreasonable to have this woman note

exactly what time it is. And it’s not for another seven

months does she tell the police. And she’s narrowing

it down as best she can. But who’s going to remember

exactly what time that happened and what time it

ended? But look at the reverse, this defendant knows

where he is all day long. All day long.’’ (Emphasis

added.)

The defendant argues that the emphasized remarks

were improper golden rule arguments. In particular, the

defendant argues that these remarks were an ‘‘attempt

to have the [jurors] picture themselves in a bleak situa-

tion where they are being verbally, physically, and sexu-

ally assaulted by the [d]efendant,’’ and then decide the

case based on their emotional response.’’ We disagree.

‘‘[N]ot all arguments that ask jurors to place them-

selves in a particular party’s situation implicate the

prohibition on golden rule argument.’’ State v. Devito,

159 Conn. App. 560, 579, 124 A.3d 14, cert. denied,

319 Conn. 947, 125 A.3d 1012 (2015). ‘‘The animating

principle behind the prohibition on golden rule argu-

ments is that jurors should be encouraged to decide

cases on the basis of the facts as they find them, and

reasonable inferences drawn from those facts, rather

than by any incitement to act out of passion or sympathy

for or against any party.’’ State v. Long, supra, 293 Conn.

57–58. Accordingly, our courts have repeatedly held

that a prosecutor does not violate the golden rule by

using the pronoun ‘‘you’’ or by asking the jurors to

place themselves in the position of the witness if the

prosecutor is using these rhetorical devices to ask the

jury to assess the evidence from the standpoint of a

reasonable person or to employ common sense in evalu-

ating the evidence. See, e.g., State v. Stephen J. R., 309

Conn. 586, 607, 72 A.3d 379 (2013); State v. Long, supra,

55–58; State v. Bell, 283 Conn. 748, 773–74, 931 A.2d

198 (2007); State v. Devito, supra, 578–80; State v.

Ovechka, 118 Conn. App. 733, 745–46, 984 A.2d 796,

cert. denied, 295 Conn. 905, 989 A.2d 120 (2010).

In the present case, the prosecutor’s remarks on

rebuttal were made in response to defense counsel’s

argument that the victim was not credible because she

was inconsistent concerning the timing of the February

14 incident. The purpose of the prosecutor’s remark

was to encourage the jury to employ its common sense

when determining whether, in light of the evidence pre-

sented at trial, it was reasonable for the victim to be

imprecise or inconsistent concerning what time of day

that the February 14 incident occurred. The defendant

has failed to establish that these remarks, when read in

context, appealed to the jurors’ emotions or otherwise

encouraged them to decide the case on something

beyond the evidence presented at trial.

We conclude therefore that the prosecutor’s remarks

did not constitute an improper golden rule argument.

C

Finally, the defendant claims that the prosecutor

improperly referred to the victim’s police statement,

which was not in evidence, and improperly tapped on

and picked up the victim’s police statement while refer-

ring to it. We disagree.

As we previously stated, an issue arose at trial con-

cerning whether the victim’s testimony about the timing

of the February 14 incident was inconsistent with the

statement she gave to the police. See part III B of this

opinion. At trial, Detective Cheryl Gogins testified that

she took the victim’s statements concerning the Febru-

ary 14 and February 28 incidents. On cross-examination,

Gogins testified that the victim reported that the Febru-

ary 14 incident occurred during the ‘‘mid-afternoon’’

and that she accurately memorialized that in the victim’s

statement. On redirect examination, Gogins explained

that the victim ‘‘gave a fraction of a period of time, and

that’s how [the term] mid-afternoon came [about]. It

was around a fraction of that timing.’’ In particular,

Gogins recalled that when she was trying to pinpoint

the timing of the February 14 incident with the victim,

‘‘[the victim] stat[ed] that she had laid down her grand-

son to take a nap.’’

During her rebuttal argument, the prosecutor, when

addressing the victim’s purported inconsistency con-

cerning the timing of the February 14 incident, made

the following remark: ‘‘And remember the testimony of

Detective Gogins when she was questioned with respect

to the time because counsel made a big deal about the

mid to afternoon. Okay. What does she say right after

that? It happened right after I put my grandson down

for a nap. That’s what she said in her statement to

Detective Gogins, completely consistent with what I

asked her. I just narrowed it down.’’ (Emphasis added.)

At the conclusion of closing arguments, the defendant

raised five objections to the prosecutor’s rebuttal argu-

ment, including an objection to the fact that the prose-

cutor purportedly tapped on and picked up the victim’s

police statement during these remarks. In response to

the defendant’s objection, however, the prosecutor did

not state whether the document she picked up was her

notes,10 the victim’s statement, or another document,

and the court did not inquire into the nature of the

document.11

On appeal, the defendant argues that the prosecutor

improperly argued facts not in evidence by referencing

and picking up the victim’s police statement during

closing argument. We disagree. First, it is axiomatic

that in closing argument parties are permitted to rely

on the evidence presented at trial. See State v. Arline,

223 Conn. 52, 58, 612 A.2d 755 (1992) (‘‘[c]ounsel may

comment upon facts properly in evidence and upon

reasonable inferences to be drawn from them’’ [empha-

sis omitted; internal quotation marks omitted]). In the

present case, Gogins testified that the victim told her

that the February 14 incident occurred after she put her

grandson down for a nap. Accordingly, the prosecutor’s

remark, which expressly referenced Gogins’ testimony,

was not improper.

Second, the record is unclear as to what, if anything,

the prosecutor picked up during her remarks about

Gogins’ testimony. When a defendant raises a claim of

prosecutorial impropriety on appeal, the burden is on

the defendant to prove first that the prosecutor commit-

ted an impropriety and second that the impropriety

deprived him of a fair trial. State v. Felix R., 319 Conn.

1, 8–9, 124 A.3d 871 (2015). As the record before us is

ambiguous as to what, if anything, the prosecutor

picked up during her remarks about Gogins’ testimony,

we conclude that the defendant failed to meet his bur-

den of proving that the prosecutor improperly showed

a document not in evidence to the jury during closing

argument. See id., 9 (‘‘when a prosecutor’s potentially

improper remarks are ambiguous, a court should not

lightly infer that a prosecutor intends an ambiguous

remark to have its most damaging meaning or that a

jury, sitting through a lengthy exhortation, will draw

that meaning from the plethora of less damaging inter-

pretations’’ [internal quotation marks omitted]).

The judgment is affirmed.

In this opinion the other judges concurred.

1

In furtherance of our policy of protecting the privacy interests of the

subject of a criminal protective order, we refer to the protected person in

this case only as the victim.

2

In November, 2013, the state entered a nolle prosequi in the victim’s

case after a witness admitted to filing a false incident report and pleaded

guilty to making a false statement.

3

The victim has two daughters and two grandchildren. During the period

in question, one of the victim’s daughters was receiving chemotherapy treat-

ment for cancer. To help her daughter, the victim often cared for her daugh-

ter’s son.

4

The defendant also challenges his conviction of unlawful restraint in the

first degree on the grounds that it is factually and legally inconsistent with

his acquittal of the charges of sexual assault in the first degree. Claims

of factual and legal inconsistency between a conviction and an acquittal,

however, are not reviewable unless there is evidence that the jury reached

an inconsistent verdict as the result of juror misconduct. State v. Arroyo,

292 Conn. 558, 585 n.22, 586, 973 A.2d 1254 (2009), cert. denied, 559 U.S.

911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010). The defendant has neither

argued nor presented any evidence that the jury reached an inconsistent

verdict as a result of juror misconduct. Accordingly, we decline to review

this claim.

5

The defendant failed to preserve his claim at trial and seeks review

pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),

as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) .

As we have previously stated, however, ‘‘[a]ny defendant found guilty on

the basis of insufficient evidence has been deprived of a constitutional

right, and would therefore necessarily meet the four prongs of Golding.

Accordingly, we conclude that no practical reason exists to engage in a

Golding analysis of a sufficiency of the evidence claim and, thus, review the

challenge as we do any other properly preserved claim.’’ (Internal quotation

marks omitted.) State v. Pettigrew, 124 Conn. App. 9, 29–30 n.13, 3 A.3d

6

In particular, the court stated: ‘‘The cases that the court recited at the

time [the defendant’s oral motion to recuse] was raised I think still apply

in this particular case. As I said . . . on the day that was raised, the mere

fact that the court has ruled adversely on a proceeding does not necessarily

mean that the court should recuse itself. In this particular case, the court

heard a violation of probation here last year, found the defendant in violation.

And in this particular case, it’s an entirely different matter. It’s . . . a sexual

assault allegation that’s going to be tried to a jury. This court will not be

making findings of fact. It’s the jury that’s going to be finding those facts.

The mere fact that a judge has previously ruled adversely does not necessar-

ily recuse the judge. And for that reason, the court denied the . . . relief

that was asked for . . . .’’

7

The defendant did not order the transcript for the December 1, 2014

hearing. Initially, the defendant maintained that the December 1 transcript

was not necessary for the present appeal because he was challenging only

the court’s denial of his motion for reconsideration, but on February 17,

2017, after oral argument before this court, the defendant filed a motion

requesting permission to file an additional transcript. The state objected,

arguing that ‘‘filing of an additional transcript at this juncture changes the

entire nature of the claims and arguments presented on appeal.’’ On February

23, 2017, this court denied the defendant’s motion.

In addition, the defendant did not order the transcripts of his violation

of probation hearing on November 20 and 22, 2013 nor did he include these

transcripts in his appendix to his opening brief. The state observed in its

brief that although the defendant alluded to events that transpired at the

November 22 hearing in his motion for reconsideration and his opening

brief, the transcript from that hearing was not before the court on December

1 or 8, 2014, and, therefore, the transcript is not part of the record on appeal.

The defendant then appended to his reply brief the redacted transcripts of

his violation of probation hearing and asked this court to take judicial notice

of them. Since filing his reply brief, the defendant has not ordered or filed

these transcripts pursuant to Practice Book § 63-8.

8

We note that following closing argument, defense counsel objected to

some, but not all, of the improprieties claimed on appeal. The defendant’s

unpreserved claims are nevertheless reviewable. ‘‘We previously have recog-

nized that a claim of prosecutorial impropriety, even in the absence of an

objection, has constitutional implications and requires a due process analysis

. . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Gibson,

302 Conn. 653, 658–59, 31 A.3d 346 (2011).

9

To the extent that the defendant also claims that these remarks consti-

tuted an improper appeal to the jurors’ emotions, we need not separately

analyze the defendant’s claim under both the prohibition against golden rule

arguments and the prohibition against appealing to jurors’ emotions because

‘‘the prohibition on golden rule arguments is merely a subset of this type

of prosecutorial impropriety . . . .’’ State v. Long, 293 Conn. 56 n.21.

10

We note that the prosecutor asked the jury during her opening argument

to ‘‘excuse me for having to read a little bit of this because a lot of the

evidence that came out today, I just had to write down quickly.’’

11

The prosecutor misunderstood the nature of the defendant’s objection

at trial. She understood the defendant to be challenging the substance of

her remarks rather than the act of lifting up a document, and, as a result,

her response to this objection focused on the fact that Gogins testified that

the victim told her the February 14 incident occurred after she put her

grandson down for a nap.

The defendant in his brief suggests that the court found that the prosecutor

had picked up a document not in evidence during closing argument and

concluded that this conduct was improper. We disagree with the defendant’s

interpretation of the court’s remarks. After the prosecutor concluded her

argument, the court observed that it understood defense counsel to be

objecting to the act of picking up a document during closing argument, not

the substance of her remarks about Gogins’ testimony, and defense counsel

agreed. The court then stated that ‘‘the statement is not in evidence. . . .

I’ll have to address that’’ in the jury instructions and recessed proceedings

for the day. The following trial day, the court informed the parties that it

had considered the defendant’s objections further and concluded that the

prosecutor’s conduct was ‘‘within the limits and the bounds of the prosecu-

torial closing argument.’’