STATE OF CONNECTICUT v. MICHAEL R.*
SC 20523
Supreme Court of Connecticut
April 11, 2023
Robinson, C. J., and McDonald, D‘Auria, Mullins, Ecker and Alexander, Js.
Argued October 18, 2022
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Syllabus
Convicted, after a jury trial, of sexual assault in the first degree, risk of injury to a child, employing a minor in an obscene performance, assault in the third degree, criminal violation of a protective order, and stalking in the first degree in three cases that were consolidated for trial, the defendant appealed to this court. The defendant had been romantically involved with R, and his conviction arose from his alleged abuse of R‘s daughter, G. On numerous occasions, the defendant sexually assaulted G during her weekly sleepovers at the defendant‘s house. He also gave G a cell phone and implemented certain rules, including one requiring G to send him daily “selfies” and one prohibiting G from letting R see the phone. At the end of one of G‘s visits to the defendant‘s house, the police responded to a complaint that the defendant had refused to return G to R. After a subsequent visit, R reported to the police that G had returned from the defendant‘s house with a bruise on her buttocks, and G told her pediatrician that she had been struck with a belt numerous times. Concerned about certain content that R had found on G‘s cell phone, R gave it to the police. An extraction of the phone‘s data revealed various suggestive photographs and text messages between the defendant and G, including photographs of the defendant lying shirtless in bed with G, text messages from the defendant instructing G to send him photographs of G fully and partially nude in various poses, along with the resulting photographs, and text messages in which the defendant discussed his plans for punishing G for failing to send him daily selfies. Thereafter, the trial court issued a protective order prohibiting the defendant from, among other things, following or stalking G. On a subsequent morning, however, the defendant positioned himself on a bench near G‘s school and made eye contact with her as she passed by in her school van. About two weeks later, the defendant parked his car along the route of G‘s school van and followed it to G‘s school after watching it pass by. The defendant represented himself at trial. The trial court denied the defendant‘s pretrial motion to sever and granted the state‘s motion for joinder, and the sexual offenses, namely, sexual assault in the first degree, one count of risk of injury to a child based on sexual conduct, and employing a minor in an obscene performance, were tried together with the nonsexual charges of assault in the third degree and another count of risk of injury to a child unrelated to sexual conduct, which related to the incident involving the belt, criminal violation of a protective order, and first degree stalking. At trial, the defendant cross-examined G and attempted to elicit testimony regarding prior inconsistent statements that she had made during two forensic interviews. During the first interview, G initially denied any alleged sexual abuse by the defendant, but, during the second interview approximately six months later, G indicated that the defendant had touched her private parts with both his private parts and his hand on more than one occasion. When the defendant attempted to refresh G‘s recollection with her statements from her first interview, however, the trial court interjected and instructed the defendant to move on. The defendant also attempted to offer video recordings of the interviews as substantive evidence through his expert witness, but the trial court excluded them on the grounds that there was no foundation for their admission and could not be authenticated by the expert. On the defendant‘s appeal from the judgments of conviction, held:
1. The trial court did not abuse its discretion by consolidating the sexual offenses and the nonsexual offenses for trial, as the evidence relating to the sexual offenses was cross admissible to prove the nonsexual offenses:
The evidence relating to the sexual offenses and the nonsexual offenses was relevant in each case, as all of the offenses involved the same victim and tended to prove the state‘s theory that the defendant‘s motive for committing all of the offenses was his sexual interest in, and obsession with, G, and specific evidence suggestive of the defendant‘s motive relating to the sexual offenses included G‘s testimony recounting the sexual abuse, the defendant‘s gifting G with a cell phone and prohibiting R from seeing it, his tracking of G via the phone‘s global positioning system and asking her to send him daily selfies and photographs of her partially or fully nude, and his positioning himself along G‘s school van route.
Moreover, it could be fairly inferred that the defendant‘s nonsexual conduct in following G to school and hitting her with a belt was influenced by his criminal conduct of sexually assaulting her, all of that conduct was tied together by the defendant‘s obsession with and desire to control G, and, on the basis of that evidence, the trial court reasonably concluded that evidence relating to each charged crime would be probative to show a genuine connection between the defendant‘s sexual and nonsexual conduct, to corroborate crucial prosecution testimony, and to establish the complete story of the defendant‘s sexual abuse of G by placing it in context.
Although the evidence relating to G‘s sexual exploitation was more severe than the evidence relating to the nonsexual incidents involving the stalking and the striking of G with a belt, the evidence of the sexual offenses was more probative than prejudicial with respect to the nonsexual offense charges, and vice versa, and the prejudicial effect of joining the various charges for trial was mitigated by the fact that there was only a single victim, with the charges providing context and motive for the defendant‘s sexual and nonsexual actions as to that victim, and by the trial court‘s jury instruction, given on multiple occasions, that the evidence relating to each charge must be considered separately.
2. The defendant could not prevail on his unpreserved claims that the statute (
a. Section
Contrary to the defendant‘s arguments that there was a definitional conflict in the statutory scheme governing obscenity related offenses, the text of
Even if, as the defendant argued, the term “nude performance” was itself vague in the absence of a judicial gloss that restricted its reach only to nudity of a sexual nature, decisions from this court and the Appellate Court provided ample notice that photographs like those recovered from G‘s cell phone were within the ambit of the statute and made clear that, when the defendant engaged in the conduct at issue, selfies in which a nine year old child, such as G, is directed to pose fully or partially nude constitute a nude performance under the statute.
b. The photographs of G, in which she posed fully or partially nude at the defendant‘s instruction, did not warrant first amendment protection:
It is well established that obscenity is not a category of expression protected by the first amendment, and
Moreover, although nudity by itself is not pornographic, a photograph can be sexually explicit when it contains a lascivious image, this court has adopted a case specific approach for assessing whether a display is lascivious, and, following an independent appellate review of the photographs at issue, this court concluded that, given G‘s age and G‘s sexually suggestive poses at the defendant‘s direction, the photographs of G depicted a degree of sexual activity that was “harmful to minors” and, therefore, obscene.
3. The defendant could not prevail on his claim that the trial court‘s improper exclusion of the video recordings of the forensic interviews violated his constitutional rights to confrontation and to present a defense, as any claimed error was harmless beyond a reasonable doubt:
Although the trial court was within its discretion to ensure that the defendant‘s cross-examination of G was not abusive or intimidating, it should not have interjected when the defendant attempted to refresh her recollection, especially when the defendant‘s questions were neither tangential nor irrelevant and the prosecutor did not object, and, in this instance, the trial court‘s desire to protect G interfered with the defendant‘s attempts to exercise his right to represent himself.
Nevertheless, the trial court‘s potentially incorrect rulings with respect to the admission of the video-recorded interviews were harmless, as the relevant portions of the first interview were cumulative of trial testimony that G had, on three occasions, denied any sexual misconduct by the defendant, if the recording of the first interview had been admitted, it would have established only what the jury already knew from testimony about G‘s initial denials, the defendant had the opportunity to highlight any inconsistencies between G‘s testimony and her statements during the first forensic interview when the defendant cross-examined her, and the defendant‘s line of questioning repeatedly made the jury aware of the existence of the inconsistencies.
Moreover, G‘s answers during the second interview about the defendant‘s touching her vagina with his hand did not differ in any material way from her testimony that his “parts” went inside her private parts a “little bit,” and the statements in the second interview corroborated G‘s testimony and squarely established the necessary element of “sexual intercourse” in connection with the sexual assault charge by establishing that penetration, however slight, occurred, such that the admission of the recording of the second interview would have been damaging to the defendant‘s case.
To the extent that there were any inconsistencies between the statements in the second interview and G‘s testimony regarding the type of penetration that occurred, the exclusion of the second interview also was harmless because the defendant focused his defense on G‘s credibility rather than on whether the state had proven the element of penetration, and there was substantial evidence corroborating G‘s testimony, including expert testimony explaining the concept of delayed disclosure, evidence of the defendant‘s directing G to send him photographs of G posing nude, and the photographs themselves.
4. The evidence was sufficient to support the defendant‘s conviction of assault in the third degree, two counts of violation of a protective order, and two counts of stalking in the first degree:
a. There was no merit to the defendant‘s claim that the evidence was insufficient to support his conviction of assault in the third degree on the ground that he lacked the necessary intent to cause G to sustain a physical injury, in view of his and G‘s testimony that a blanket was placed over G‘s buttocks so that it would not hurt her when he struck her with the belt:
The jury reasonably could have inferred the defendant‘s intent to inflict injury from the physical characteristics of the bruise, which was the size of a “tangerine,” the number of times the defendant struck G, the defendant‘s statements in his text messages indicating that he would “punish” G for failing to send him selfies, and his own consciousness of guilt, as reflected in his misstatements and changes in statements he made to an official from the Department of Children and Families regard-ing the incident.
b. The evidence was sufficient to support the defendant‘s conviction of two counts of criminal violation of a protective order, insofar as the evidence warranted an inference that, on two separate dates after the trial court issued the protective order, the defendant had the requisite intent to stalk and follow G:
The jury reasonably could have inferred that, on the date of the first incident, the defendant knew that G would be in the van heading to school, watched the van‘s route specifically to see G, and cleared a spot on a bench that enabled him to wait there until he saw G, and that, on the date of the second incident, having parked in a nearby parking lot on the van‘s route and having pulled out of the lot once the van passed by, the defendant followed G to school.
c. The evidence was sufficient to convict the defendant of stalking in the first degree under the statutory provisions (
The jury reasonably could have inferred a course of conduct from the fact that, on the date of the first stalking incident, the defendant knowingly lay in wait for, monitored, surveilled, or observed G, and the fact that, on the date of the second stalking incident, the defendant knowingly followed, lay in wait for, monitored, surveilled, or observed G, and it was undisputed that a civil protective order, of which the defendant was aware, was in effect at the time of the stalking, and that G was under sixteen years of age when the stalking occurred.
Argued October 18, 2022—officially released April 11, 2023
Procedural History
Substitute information, in the first case, charging the defendant with the crimes of sexual assault in the first degree and risk of injury to a child, and substitute information, in the second case, charging the defendant with the crimes of employing a minor in an obscene performance, risk of injury to a child, and assault in the third degree, and substitute information, in the third case, charging the defendant with two counts each of the crimes of criminal violation of a protective order and stalking in the first degree, brought to the Superior Court in the judicial district of Litchfield and tried to the jury before Danaher, J.; verdicts and judgments of guilty, from which the defendant appealed to this court. Affirmed.
Conrad Ost Seifert, assigned counsel, for the appellant (defendant).
Laurie N. Feldman, assistant state‘s attorney, with whom, on the brief, were David Shannon, state‘s attorney, and Dawn Gallo, former state‘s attorney, for the appellee (state).
Opinion
The record reveals the following background facts and procedural history. Shortly after the defendant became romantically involved with R, a single mother, in 2017, he began taking her then nine year old daughter, G, on outings and movie “dates,” buying her toys, gifts, and manicures, and having her sleep over at his house at least once per week. During these visits, the defendant and G would sleep together on a pull-out bed, where the defendant
The defendant gave G a cell phone and implemented certain rules, including one that required G to send him daily “selfies” using the phone‘s camera. The defendant did not “want [R] in the phone” and instructed G that, if R demanded to see the phone or asked for its passcode, G should tell her, “sorry, it‘s daddy‘s phone and daddy‘s rules. . . . Even if she threatens to beat your ass if you don‘t. If she punches you or beats your ass as a result, let me know and I‘ll call the police.” R
had experienced financial difficulties both before and during her relationship with the defendant, and, when the electric company shut off her power, the defendant paid to have it reinstated. At one point, however, the defendant threatened to withhold financial support if R did not abide by the rules that he had set for G‘s use of the cell phone, and he conditioned the continuation of that financial support on his receiving “legal” parental rights to G.
On November 25, 2017, Sergeant Frank Masi of the New Milford Police Department went to the defendant‘s house after receiving a call that the defendant had refused to return G to R at the conclusion of a visit. Although Masi noted that G appeared hesitant to leave the defendant‘s home and that everyone appeared to be well cared for, he subsequently contacted the Department of Children and Families (department), suspecting the neglect or abuse of a child. In the following days, the defendant texted G individually to tell her that they would have to “leave each other‘s lives” because R refused “to do what was right, what [the defendant and G] both wanted, and what was in [G‘s] best interest: to make [the defendant G‘s] legal daddy.”
On November 27, 2017, Masi met with R to discuss her concerns regarding G‘s stay at the defendant‘s house on November 25. R reported to Masi that she and one of her coworkers observed that G had returned from the defendant‘s house with a “black and blue” bruise on her buttocks, about the size of “a tangerine . . . .” G told the pediatrician who examined the bruise that she had been struck with a belt nine times, with a blanket placed over her buttocks. The defendant later admitted to Yvette Newton, a supervisor with the department who investigated the report of suspected abuse and neglect, that, while G was staying with him, he had punished her by striking her buttocks with a belt, but he denied any intent to cause injury.8
When she met with Masi, R also expressed concerns about certain content that she had found on G‘s phone. When she gave Masi the cell phone and its passcode, he again contacted the department. A Cellebrite extraction9 performed pursuant to a search warrant for the cell phone revealed photographs and text messages between the defendant and G, including two photographs of the defendant laying shirtless in bed with G. The extraction also revealed text messages from the defendant instructing G to send him nude photographs of herself in various poses, along
On December 15, 2017, the trial court issued a civil
protective order prohibiting the defendant from, among other things, contacting, assaulting, threatening, abusing, harassing, following, interfering with, or stalking R, G, and G‘s younger brother.10 Subsequently, on the mornings of January 3 and 18, 2018, the defendant waited in the parking lots of two nearby businesses and then followed G‘s school van on her commute to school. In December, 2017, and June, 2018, Danielle Williams, a forensic interviewer at the Center for Youth and Families, interviewed G regarding the allegations of sexual assault against the defendant and his hitting G with a belt, during which G first denied but then later confirmed that the defendant had touched her inappropriately on several occasions and had had hit her.
Following his arrest, the state ultimately charged the defendant in three separate informations, which were consolidated for trial over the defendant‘s objection.11 In 2020, the cases were tried to a jury, with the defendant representing himself with standby counsel present. At trial, the prosecutor advanced the theory that the defendant was “obsessed” and “in love with” G. The jury returned verdicts finding the defendant guilty on all counts. The trial court rendered judgments of conviction in accordance with the jury‘s verdicts and imposed a total effective sentence of thirty years of imprisonment with fifteen years of special parole. This appeal followed. Additional relevant facts will be set forth as necessary in the context of each claim on appeal.
I
Before we address the principal issue concerning
of trying the charges together.
The state responds that the trial court properly joined the charges because the evidence of sexual misconduct was cross admissible insofar as it was probative of the defendant‘s motive, intent, and absence of mistake as to all charges, and also completed the story with regard to the other charges. The state also argues that the Boscarino factors are inapplicable because, when evidence is cross admissible, the court‘s joinder inquiry ends. Guided by our recent decision in State v. James A., 345 Conn. 599, 286 A.3d 855 (2022), petition for cert. filed (U.S. March 23, 2023) (No. 22-7080), we agree with the state and conclude that, because the evidence relating to each charged offense was cross admissible, the trial court did not abuse its discretion in denying the defendant‘s motion to sever and in subsequently granting the state‘s motion for joinder.
The record reveals the following additional relevant facts and procedural history. In July, 2019, the defendant filed a motion to sever, arguing that joinder and a single trial of all charges, which appeared in separate files, would be unduly prejudicial.15 The state opposed the defendant‘s
“[The] General Statutes and rules of practice expressly authorize a trial court to order a defendant to be tried jointly on charges arising from separate cases. . . . [I]n State v. LaFleur, 307 Conn. 115, 159, 51 A.3d 1048 (2012), and State v. Payne, 303 Conn. 538, 544-50, 34 A.3d 370 (2012) . . . we rejected the notion of a blanket presumption in favor of joinder and clarified that, when charges are brought in separate informations, and the state seeks to join those informations for trial, the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to
defendant‘s burden on appeal to show that joinder was improper by proving substantial prejudice that could not be cured by the trial court‘s instructions to the jury . . . . As we emphasized in LaFleur, our appellate standard of review remains intact. Accordingly, [i]n deciding whether to [join informations] for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. James A., supra, 345 Conn. 614-15.
“A long line of cases establishes that the paramount concern is whether the defendant‘s right to a fair trial will be impaired. Therefore, in considering whether joinder is proper, this court has recognized that, [when] evidence of one incident would be admissible at the trial of the other incident, separate trials would provide the defendant no significant benefit. . . . Under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial. . . . Accordingly, we have found joinder to be proper [when] the evidence of other crimes or uncharged misconduct [was] cross admissible at separate trials. . . . [When] evidence is cross admissible, therefore, our inquiry ends.” (Citations omitted; internal quotation marks omitted.) State v. LaFleur, supra, 307 Conn. 155; see Leconte v. Commissioner of Correction, 207 Conn. App. 306, 327, 262 A.3d 140 (“[I]t is well established that [when] the evidence in one case is cross admissible at the trial of another case, the defendant will not be
With this legal framework in mind, we start by determining whether the evidence of the sexual and nonsexual offenses was cross admissible, such that evidence in each case would have been admissible in the other cases. Under
person.
It is well established that “[e]vidence of other crimes, wrongs or acts of a person is admissible . . . to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.”
Because our analysis begins with whether the evidence is relevant and material to at least one of the circumstances encompassed by the exceptions, we briefly review the relevant exceptions to
Our review of the record reveals that the trial court reasonably concluded that the evidence relating to both the sexual offenses and the nonsexual offenses would be relevant in each case—all of which involved the same victim—to prove the state‘s theory as to the defendant‘s motive for committing all of the charged offenses, namely, that he was motivated by his sexual interest in, and obsession with, G. See State v. Patrick M., 344 Conn. 565, 598, 280 A.3d 461 (2022) (“evidence of uncharged misconduct involving the same victim is especially relevant to demonstrate motive“); State v. Gonzalez, 167 Conn. App. 298, 310, 142 A.3d 1227 (“[w]hen instances of a criminal defendant‘s prior misconduct involve the same victim as the crimes for which the defendant is being tried, those acts are especially illuminative of the defendant‘s motivation and attitude toward that victim, and, thus, of his intent as to the incident in question” (internal quotation marks omitted)), cert. denied, 323 Conn. 929, 149 A.3d 500 (2016). Specific evidence suggestive of the defendant‘s motive relating to the sexual offenses included G‘s testimony recounting the sexual abuse, the defendant‘s gifting G with a cell phone and prohibiting R from seeing it, his tracking of G via the phone‘s global positioning system and asking her to send him daily “selfies” and nude photographs, which were indicative of his motive for hitting G with a belt for not following his various phone rules, and the defendant‘s following G‘s school van route after she had been removed from R‘s care.17
Similar to consciousness of guilt, a defendant‘s conduct following an alleged criminal act can also be illustrative of his motive. See State v. DePastino, 228 Conn. 552, 563, 638 A.2d 578 (1994) (“[i]n a criminal trial, it is relevant to show the conduct of an accused, as well as any statement made by him subsequent to the alleged criminal act, which may fairly be inferred to have been influenced by the criminal act” (internal quotation marks omitted)). The defendant‘s otherwise nonsexual conduct of watching and following G on her way to school and hitting her with a belt to punish her for not complying with his desire for “selfies” “may fairly be inferred to have been influenced by the criminal act” of sexually assaulting her. (Internal quotation marks omitted.) State v. Coccomo, 302 Conn. 664, 671, 31 A.3d 1012 (2011). All of these acts, including the sexually assaultive conduct, are tied together by the defendant‘s obsession with and desire to control G.
From this evidence, the trial court reasonably concluded that, with respect to all
to establish the defendant‘s motive and intent as to each crime, which had a tendency to make it more probable that the defendant committed each crime. See, e.g., State v. Esposito, 192 Conn. 166, 169, 471 A.2d 949 (1984) (“evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, or the existence of any essential element of the principal crime, is admissible” (internal quotation marks omitted)).
We also conclude that, given these circumstances, the evidence of the sexual offense charges was more probative than prejudicial with respect to the nonsexual offense charges, and vice versa. It is well settled that damaging evidence is inadmissible only if it creates “undue prejudice so that it threatens an injustice were it to be admitted. . . . [Accordingly] [t]he test for determining whether evidence is unduly prejudicial is not whether it is damaging to the [party against whom the evidence is offered] but whether it will improperly arouse the emotions of the jur[ors].” (Emphasis altered; internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 639, 930 A.2d 628 (2007). Despite the relative severity of the evidence relating to G‘s sexual exploitation compared to that of the belt and stalking incidents, the prejudicial effect of joining the various charges for trial was mitigated by the fact that this case involved only a single victim, with the charges providing context and motive for the defendant‘s actions—both sexual and nonsexual—as to that single victim. Cf. State v. James A., supra, 345 Conn. 628 (although two sexual assault cases with two different victims were more brutal and shocking than joined threatening and disorderly conduct cases, disparity between cases was not so great that evidence related to sexual assault cases was more prejudicial than probative in threatening and disorderly conduct cases). Although testimony regarding sexual misconduct has the potential to affect a jury‘s ability to consider separate charges fairly and impartially; see, e.g., State v. Ellis, 270 Conn. 337, 377, 852 A.2d 676 (2004); that potential was mitigated in the present case when the trial court instructed the jury on multiple occasions that the evidence for each charge must be considered separately.18 For these
II
We next turn to the defendant‘s constitutional challenges to his conviction of employing a minor in an obscene performance in violation of
Although he casts one claim as a vagueness due process challenge and the other as a first amendment challenge, it appears that both claims challenge the line at which nude photographs of a minor become criminal in nature.
The record reveals the following additional relevant facts. The Cellebrite extraction of G‘s cell phone revealed that it contained several nude images of G. In these photographs, G is either standing or sitting with her breasts in the center of each image, some with her naked body partially covered by the stuffed sloth and some without. There is also a nude photograph of G with her arms extended on both sides, exposing her breasts and the top of her pubic area. Accompanying these photographs is a series of text messages from the defendant directing G to stand in certain poses, which correlate to the poses in the photographs. The defendant instructed G that he wanted one “with slothy” and directed her to “[w]alk up to the camera to where you[r] head is at the top of the photo and your feet are at the bottom.” He then instructed her to provide “one of slothy by himself and one of you by yourself,” one with “you sitting where slothy was,” and to “[s]it on the couch just like [how the defendant was sitting] and [to] make the same pose.” “Almost perfect . . . too much space above your head . . . can‘t see your toes . . . you‘re not sitting up straight . . . and I want you to hold your hair up with your hands.” When the police executed a search warrant at the defendant‘s home, they found a legal, adult pornographic DVD, which showed a young woman holding her hair up with her hands on the cover.20
We begin with the defendant‘s claim that
defendant also argues that G‘s self-taken, still cell phone images are not a “performance” under
The state, relying on State v. Ehlers, 252 Conn. 579, 595-96 and n.19, 750 A.2d 1079 (2000), and State v. Sorabella, 277 Conn. 155, 188-89, 891 A.2d 897 (2006), overruled on other grounds by State v. Douglas C., 345 Conn. 421, 285 A.3d 1067 (2022), contends that Connecticut case law gave the defendant clear notice that his conduct was prohibited because these cases hold that photographs taken for a defendant‘s personal viewing can constitute an “exhibition” and, thus, a “performance.” The state argues that the defendant thereby had notice of the broader meaning of the term “exhibition” in child pornography statutes. The state also contends that there is no statutory conflict at issue because the words “exhibition” and “showing” are synonymous and because a “performance” need not be “nude” to be obscene. We agree with the state and conclude that the statute is not unconstitutionally vague as applied to the defendant‘s conduct because he had fair and adequate notice that it prohibited nude photographs of a nine year old child in suggestive poses that were directed by the defendant in his text messages to G.
It is well established that, under both the federal and Connecticut constitutions,21
Although the defendant failed to raise a vagueness claim at trial, we review his claim under 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),22 “because the record is adequate for our review, and a claim that a statute is unconstitutionally vague implicates a defendant‘s fundamental due process right to fair warning.” State v. Coleman, 83 Conn. App. 672, 676-77, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2290, 161 L. Ed. 2d 1091 (2005). “The proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct. . . . The test is objectively applied to the actor‘s conduct and judged by a reasonable person‘s reading of the statute . . . . [O]ur fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant‘s acts were prohibited . . . .” (Internal quotation marks omitted.) State v. Roy D. L., supra, 339 Conn. 858; see State v. Pickering, 180 Conn. 54, 61, 428 A.2d 322 (1980) (“a penal statute may survive a vagueness attack solely upon a consideration of whether it provides fair warning“). “[P]ursuant to
Section “53a-196a (a) (1) is part of the statutory scheme governing obscenity related offenses.” State v. Ernesto P., 135 Conn. App. 215, 227, 41 A.3d 1115, cert. denied, 305 Conn. 912, 45 A.3d 98 (2012). We begin with the statute‘s text, which provides in relevant part: “A person is guilty of employing a minor in an obscene performance when such person . . . employs any minor, whether or not such minor receives any consideration, for the purpose of promoting any material or performance which is obscene as to minors, notwithstanding that such material or performance is intended for an adult audience . . . .” (Emphasis added.)
portion thereof below the top of the nipple . . . in any exhibition performed before an audience.” (Emphasis added.)
We summarily dispose of the defendant‘s arguments that there is a definitional conflict between the term “performance” in
Because
Consistent with the defendant‘s reliance on Justice James R. Milkey‘s dissenting opinion in Commonwealth v. Sullivan, supra, 82 Mass. App. 322, we understand his argument to be that the term “nude performance” is itself vague in the absence of a judicial gloss that restricts its reach only to nudity of a sexual nature. See United States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997) (requisite clarity “may be supplied by judicial gloss on an otherwise uncertain statute“). In Sullivan, the majority concluded that the Dost factors26 were useful in determining whether a photograph of a girl “on the cusp of puberty” posing on a beach in a sexually suggestive manner was “lewd” under a Massachusetts child pornography statute.
(Internal quotation marks omitted.) Commonwealth v. Sullivan, supra, 82 Mass. App. 301, 304-305. Determining that the photograph constituted a lewd exhibition, the majority concluded that a photograph does not need to be obscene or to “capture [a] child engaged in sexual activity” to be considered lewd. Id., 307. In his dissent, however, Justice Milkey concluded that a visual depiction of a naked child rises to the level of a “lewd exhibition” only when it “sexually exploit[s] [a] child in a manner akin to that done by a photograph of [a] child engaged in the prohibited sex acts listed in the [statute].” (Internal quotation marks omitted.) Id., 322 (Milkey, J., dissenting).
Even if we were to assume that any material must contain a sexual component to save the term “nude performance” from a vagueness challenge, Connecticut case law provides ample notice that a reasonable
An array of decisions from this court and the Appellate Court provide ample notice that nude photographs akin to those recovered from G‘s cell phone are well within the ambit of the statute. See, e.g., State v. Sorabella, supra, 277 Conn. 186-87 (reiterating that “nude performance” includes “the showing of the female breast with less than a fully opaque covering” in case involving photographs of thirteen year old girl, who was naked from waist up (internal quotation marks omitted)); State v. Ehlers, supra, 252 Conn. 581 (numerous photographs of nude, young children, some depicting children performing sex acts); State v. Zarick, 227 Conn. 207, 213, 630 A.2d 565 (photographs depicted breasts and genitalia of children, naked children in sexually explicit positions, and “costumed children wearing heavy makeup in sexually suggestive poses“), cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); State v. Ernesto P., supra, 135 Conn. App. 218-19 (it was undisputed that photographs of victim contained exhi-
bitions of genitals, pubic area, buttocks, and breasts when defendant took photographs of naked victim exposing such areas); State v. Parsons, 28 Conn. App. 91, 95, 612 A.2d 73 (photographic contact sheet contained numerous photographs, taken by defendant, of victim clothed only in T-shirt, focusing primarily on victim‘s buttocks), cert. denied, 223 Conn. 920, 614 A.2d 829 (1992). These decisions make clear that directing a child to pose fully or partially nude for photographs in an objectively sexual manner is an exhibition or a showing within the meaning of the term “nude performance” and, therefore, violates
These cases gave fair warning to the defendant that his conduct in directing and posing G in the photographs was criminal at the time he engaged in it. The photographs squarely foreclose any claim that the text of
B
The defendant also seeks an independent appellate review of his conviction for violating
Before addressing these arguments, we set forth the
applicable standard of review. “In certain first amendment contexts . . . appellate courts are bound to apply a de novo standard of review. . . . [I]n cases raising [f]irst [a]mendment issues [the United States Supreme Court has] repeatedly held that an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression. . . . Therefore, even though, ordinarily . . . [f]indings of fact . . . shall not be set aside unless clearly erroneous, [appellate courts] are obliged to make a fresh examination of crucial facts under the rule of independent review.” (Citations omitted; internal quotation marks omitted.) DiMartino v. Richens, 263 Conn. 639, 661-62, 822 A.2d 205 (2003); see Miller v. California, supra, 413 U.S. 25 (independent appellate review of finding of obscenity).
It is well established that obscenity is not a category of expression protected by the first amendment. See, e.g., New York v. Ferber, 458 U.S. 747, 754, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982); State v. Zarick, supra, 227 Conn. 220. The constitutional definition of obscenity is articulated in Miller v. California, supra, 413 U.S. 24.27 See State v. Gagliardi, 174 Conn. 46, 48, 381 A.2d 1068 (1977) (in determining what is obscene, trier of fact must apply Miller guidelines). Section
Case law has further expounded on the extent to which images of minors become obscene and thereby lose their protection under the first amendment. In Whited, on which the defendant relies, the Tennessee Supreme Court considered the appropriate standard for determining what constitutes a “lascivious exhibition” of a minor‘s private body areas within the meaning of Tennessee‘s child exploitation statutes. State v. Whited, supra, 506 S.W.3d 430. In that case, the defendant, who had utilized a hidden camera to capture videos of minors in various states of undress, including fully nude, after showering and while changing clothes; id., 418-19; appealed his conviction under
The court in Whited determined that hidden camera videos depicting two minors changing out of their bikini swimsuits into dry clothes and entering and exiting the shower did not rise to a level at which a trier of fact could reasonably find that the videos objectively included “sexual activity . . . .” (Internal quotation marks omitted.) Id., 447. Although the hidden camera was positioned to capture the minors’ nude bodies in the center of the screen, nothing in the videos indicated that the minors were posed or coached; nor were they in any unnatural or overtly sexual poses. Id., 446. In addition, the camera did not focus or “[zoom] in” on the minors’ private areas, and the minors were engaged in everyday activities that were appropriate for the settings, seemingly unaware of the camera. (Internal quotation marks omitted.) Id.
The line of reasoning in Whited, however, is inconsistent with our recent analysis
As a matter of first impression in Sawyer, we adopted a case specific approach to assessing whether a display is lascivious and stated that “the Dost factors are generally relevant and provide some guidance” in this evaluation. (Internal quotation marks omitted.) State v. Sawyer, 335 Conn. 41. Accordingly, because the judge reviewing the warrant in Sawyer reasonably could have inferred from the description of the girl‘s “hand covering her genital area” that the photograph suggested sexual coyness and that she was posed in that manner by a photographer, various Dost factors were implicated. (Internal quotation marks omitted.) Id., 44. Although nudity by itself is not pornographic,29 we concluded in Sawyer that the two photographs at issue provided a “fair probability” or a “substantial chance” that the defendant was in possession of lascivious images of children for purposes of the court‘s probable cause determination. (Internal quotation marks omitted.) Id., 44-45.
Although Whited and Sawyer are somewhat inapposite to the present case given the statutes at issue,30 they nevertheless
Unlike the hidden camera video recordings depicting nude children engaged in everyday, nonsexual activities in Whited, given G‘s age, G‘s sexually suggestive placements and poses at the defendant‘s instruction through text messages, both fully nude and partially covered, taken as a whole, lead us to conclude that the photographs depict a degree of sexual activity and, as such, are “harmful to minors.” They were therefore obscene and not protected by the first amendment.
III
We now consider the defendant‘s claim that the trial court improperly excluded from evidence the video recordings of two forensic interviews of G. Specifically, the defendant argues that the first forensic interview was completely exculpatory, rendering it critical to his defense against the charges of sexual assault in the first degree and risk of injury to a child based on sexual conduct. The defendant argues that the trial court improperly declined to allow him to refresh G‘s recollection when asking her whether she remembered the first forensic interview, thereby preventing him from impeaching her with her prior inconsistent statement. The defendant also argues that the trial court abused its discretion by not giving him a chance to “authenticate” both videos when he offered them as evidence through his expert witness. He contends that the improper exclusion of this exculpatory video evidence prejudiced him and violated his constitutional rights to confront the complainant and to present a defense.
The state argues in response that the trial court properly excluded the forensic interviews because the defendant failed to satisfy the requirements of the Connecticut Code of Evidence for refreshing recollection, impeachment, or admission of the interviews as exhibits. Alternatively, the state posits that any error was harmless. We conclude that any claimed error with respect to the video recordings was harmless beyond a reasonable doubt.
The second interview was conducted approximately six months later, on June 22, 2018. During the second interview, G disclosed the sexual abuse by the defendant, stating that, at R‘s house and when she slept at the defendant‘s house, the defendant, among other things, “took his private part and touched it with [hers]” more than once. When Williams asked G to clarify the meaning of the word “privates,” G used a marker to circle the penis on a photograph of a man and the vagina on a photograph of a woman. When asked if the defendant‘s private parts had touched G‘s private parts on the “inside . . . outside, or something else,” G replied that the defendant had touched her on the “outside” and that it felt “weird.” She also stated that, at the defendant‘s house, “white stuff” would come out of his penis when this would happen. As the conversation progressed, G indicated that the defendant had also touched her vagina with his hand. When asked whether the defendant‘s hand had touched G‘s private parts on the “inside . . . outside, or something else,” G stated: “I don‘t know. Well, I do know, but I don‘t really know the word for it.” When asked again, G stated that it was “like the middle-ish” and it felt “weird.” G also stated that she did not have clothes on when this would happen.
At trial, G testified that the defendant had touched her breasts and vagina with his mouth, fingers, and penis. When the prosecutor asked whether the defendant‘s “parts ever [went] inside [her] vagina,” G replied, “[a] little bit.” When asked whether “anything [had] ever come out of his private part,” G replied, “[y]es,” and indicated that the substance was white in color.
Following the prosecutor‘s direct examination of G, the defendant asked for time to gather himself and compose some questions for cross-examination. After the jury was excused, the defendant informed the trial court that he was not prepared to cross-examine G at that time because he could not formulate his questions the night before, as he lacked access to a pen while he was incarcerated awaiting trial. The trial court then asked the prosecutor if he had previously prepared discovery regarding G‘s prior statements and given it to the defendant. The prosecutor replied that the defendant had an opportunity to watch the forensic interviews multiple times, confirmed that “the same basic evidence came out on those occasions,” and assured the court that, “[i]n the second one, same basic—yes.” G and the jury then returned to the courtroom.
Before the defendant cross-examined G, the trial court directed the defendant not to ask questions in a manner that would be intimidating to a child. During his cross-examination, the defendant asked G whether she had previously denied, on several occasions, that he had done anything inappropriate or touched her in an inappropriate way. G testified that she had denied any abuse on three occasions because she had feared that R would get scared and “really mad,” and that she did not tell anyone else because she had “no idea what was going on” at the time. After further attempts to inquire into whether G
After that recess, the defendant again asked G if she recalled sitting for an interview with Williams and if she recalled using markers. G stated that she remembered having an interview and using markers but was not sure who had interviewed her or what the markers were used for. The defendant then asked, “[d]o you remember, in that interview, stating that no one has ever touched you in [your] private parts?” G answered that she remembered talking about what happened, using markers, and telling the interviewer “about the truth but [she] wouldn‘t say—.” The defendant interrupted her, stating, “[s]o, you said you remember talking about the truth . . . [a]nd, during that interview, do you recall telling—or do you recall stating, that no one had touched you in your private parts?”
The prosecutor objected to the form of the question, asking which interview the defendant was referring to, because G had been interviewed twice. In response, the trial court stated that “she recalled an interview. She‘s not sure with whom, so I think the question has to be about that interview. Do you have any recollection—so, maybe it would help to focus [on] that.” (Emphasis added.) The defendant announced that he had the interviews available, but the trial court again reminded the defendant that G had testified about an interview during which she had told the truth, so he could ask her “what she recall[ed] about that interview.”
The defendant then asked G whether she remembered stating, when talking about the truth, that no one had touched her in her private parts, to which she replied, “[n]o. Because why would I lie about—.” The trial court again interjected, stating, “[n]ext question.” The defendant asked G if she recalled stating what she would do if someone had touched her in her private parts, to which she replied, “[n]o. I don‘t remember.” The defendant attempted to tell the trial court that he had the video recording of the interview available but he was, yet again, instructed, “[n]ext question, Mr. [R].”
The defendant thereafter asked G, “[w]ould it refresh your memory if we played a recording of that material?” Although the prosecutor did not object to the question, the trial court then stated that it was “not clear that she said she didn‘t have a memory.” Instead, the trial court stated that it understood G‘s answer to be that she did not tell Williams what she would do if someone had touched her in her private parts. Noting its own confusion, the trial court suggested that the defendant clarify his question. The defendant replied that G had made “contradictory statements,” to which the trial court stated that it was “not going to argue the law right now,” and instructed the defendant to ask another question to help focus what he wanted G to say. The defendant continued to ask G whether she remembered things she said during the first forensic interview and to the pediatrician who examined her bruise but subsequently decided to “move on” to questions regarding the other charges.
Later in the trial, while presenting his defense, and after he recalled Williams as a defense witness, the defendant attempted to introduce video recordings of both forensic interviews as substantive evidence during the testimony of his expert witness,
We note that the defendant did not raise his constitutional claims at trial and seeks to prevail under State v. Golding, supra, 213 Conn. 239-40. See footnote 22 of this opinion. “This court has long recognized that a violation of the defendant‘s right to confront witnesses is subject to harmless error analysis [under Golding‘s fourth prong].” (Internal quotation marks omitted.) State v. Edwards, 334 Conn. 688, 706, 224 A.3d 504 (2020). When “the defendant‘s claim is constitutional in nature, the state bears the burden of establishing that this error was harmless beyond a reasonable doubt.” State v. Tyus, 342 Conn. 784, 813, 272 A.3d 132 (2022). “Whether any error is harmless in a particular case depends [on] a number of factors, such as the importance of the witness’ testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution‘s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless [beyond a reasonable doubt].” (Internal quotation marks omitted.) Id., 804; cf. State v. Payne, supra, 303 Conn. 553 (“a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict” (internal quotation marks omitted)).
Our review of the record indicates that the defendant attempted to refresh G‘s recollection with her prior inconsistent statements from the first forensic interview and to offer both forensic interviews through Eiswirth for their substance. Although the trial court was well within its discretion to ensure that the defendant‘s cross-examination was not abusive or intimidating to G, it should not have injected itself into G‘s response when the defendant attempted to refresh her recollection, as the questions that the defendant asked at that point were neither tangential nor irrelevant. Given the lack of objection from the prosecutor, the trial court should have permitted G to answer the question asked, which may have provided the defendant with an opportunity to refresh her recollection. This is especially so considering the trial court‘s previous suggestion that the defendant ask G whether she “ha[s] any recollection” and that “maybe, it would help to focus [on] that.” Although the trial court accommodated the defendant in other regards consistent with the established policy of the Connecticut courts to be solicitous
With respect to the first interview, we observe that the relevant portions were cumulative of trial testimony clearly establishing that G had, on three occasions, denied any sexual misconduct by the defendant. G‘s trial testimony and her statements during the first forensic interview thus did not differ in any material way. See, e.g., State v. Francis, 228 Conn. 118, 126, 635 A.2d 762 (1993) (testimony of four witnesses did not differ in any material way, and trial record would have been substantially same if one witness had not testified). In addition, various other witnesses also testified regarding G‘s initial denial of the abuse, including two pediatricians and a nurse practitioner who performed a sexual assault examination on G. Thus, had the defendant been successful in his efforts to use the recording of the first interview at trial, that evidence would have established only what the jury already knew from G and the other witnesses, namely, that she initially denied that the defendant had any sexual contact with her. The entirely cumulative nature of the recording of the first interview renders its exclusion harmless beyond a reasonable doubt. See, e.g., State v. Tyus, supra, 342 Conn. 814 (expert testimony about forensic “findings and conclusions was redundant to other evidence presented at trial“). But cf., e.g., State v. Colton, 227 Conn. 231, 254, 630 A.2d 577 (1993) (exclusion of evidence bearing on motivation of state‘s chief witness, when no other evidence corroborated material aspects of witness’ testimony, was harmful error).
The defendant also had the opportunity to highlight any inconsistencies between G‘s trial testimony and her statements in the first forensic interview during his cross-examination of G. This line of questioning repeatedly made the jury aware of the existence of the inconsistencies, notwithstanding the fact that the defendant subsequently changed topics on his own accord.32 See State v. Brown, 187 Conn. 602, 613, 447 A.2d 734 (1982) (“It is relevant to the consideration of harmfulness that the jury [was] made aware of the possibility of [the accomplice‘s] personal interest in the outcome of the case through the cross-examination of her. Even more importantly, much of [the accomplice‘s] testimony was corroborated by the testimony of [other witnesses], and the arresting
As to the second interview, G‘s answers during that interview also did not differ in any material way from her trial testimony. G‘s video recorded statements—when asked whether the defendant‘s hand had touched her vagina on the “inside . . . outside, or something else,” that she “[did not] really know the word” for where the defendant had touched her and that the defendant‘s hand had touched the “middle-ish” of her vagina—are wholly consistent with her trial testimony that his “parts” went inside her vagina “[a] little bit.”33 Indeed, the trial court‘s refusal to admit the second video into evidence could not have harmed the defendant, as the statements therein corroborated G‘s testimony and squarely established the necessary element of “sexual intercourse” under the sexual assault charge; see
To the extent that there were any inconsistencies between the recording of the second interview and G‘s trial testimony with respect to the type of penetration, the exclusion of the recording of the second interview was also harmless because the defendant did not focus his defense on whether the state had proven the element of penetration but, rather, mounted an attack on G‘s credibility as a complaining witness and attempted to cast this case squarely as one of “he said . . . she said.” Given the defendant‘s focus on G‘s credibility, the exclusion of the otherwise inculpatory recording of the second interview did not harm the defendant because there was substantial evidence corroborating G‘s testimony. In addition to testimony from both the state‘s and the defendant‘s expert witnesses explaining the concept of delayed disclosure,34 overwhelming evidence of the
IV
Lastly, we reject the defendant‘s claims that the evidence was insufficient to support his conviction of assault in the third degree, violation of a protective order, and stalking in the first degree. Before addressing the defendant‘s specific sufficiency claims, we observe that a party challenging the validity of a jury‘s verdict on the ground of insufficiency carries a difficult burden. See, e.g., State v. Rhodes, 335 Conn. 226, 233, 249 A.3d 683 (2020). “The standard of review we apply to a claim of insufficient evidence is well established. 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 [on] the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Brown, 345 Conn. 354, 369, 285 A.3d 367 (2022). “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 [fact finder‘s] verdict of guilty.” (Internal quotation marks omitted.) State v. Fisher, 342 Conn. 239, 249, 269 A.3d 104 (2022).
A
We begin with the defendant‘s claim that the evidence was insufficient to support his conviction of assault in the third degree. Specifically, the defendant argues that he lacked the intent to cause G to sustain the physical injury necessary to satisfy the elements of
We find no merit in the defendant‘s claim that the evidence was insufficient to support his conviction of assault in the third degree. Our review of the record reveals that the state presented more than
B
We next turn to the defendant‘s claim that the evidence was insufficient to support his conviction of violation of a protective order and stalking in the first degree. The defendant claims that, because he was stationary when G saw him, he did not violate the protective order, as required by
The jury reasonably could have found the following additional facts, which are relevant to our review of this claim. On January 3, 2018, the defendant positioned himself on a bench located outside of a McDonald‘s restaurant one tenth of one mile away from the entrance to G‘s school, where G made eye contact with him from inside her school van as it passed by. Upon her arrival at school, G, visibly shaken, told her school counselor that the defendant had made eye contact with her and that she was afraid that he would come into the school and take her.
On January 18, 2018, the defendant parked his car in a nearby Feed Barn parking lot, pointing at an intersection on G‘s school van route, and stared at the road until the school van drove by. Jeannine Begley, a detective with the New Milford Police Department who was acting undercover, parked next to the defendant and took a photograph of the defendant sitting in his car facing the intersection. Once the van had passed through the intersection, Begley followed the defendant as he pulled out of the parking lot, “[without] delay,” to follow the van to the school, where the children disembarked. Upon arriving at school, G, again visibly shaken, told another school counselor that she saw the defendant‘s car in the Feed Barn parking lot, across from the McDonald‘s restaurant, on her way to school that morning. The defendant was later apprehended.
1
We begin with the defendant‘s claim that the evidence was insufficient to convict him of two counts of criminal violation of a protective order. Specifically, the defendant argues that the jury could not have found beyond a reasonable doubt that, based on the evidence adduced at trial, he stalked G or followed G‘s school van on January 3 or 18, 2018.
“This court has held that proof of the criminal violation of a protective order pursuant to
The jury reasonably could have inferred from the evidence presented at trial that, on January 3, 2018, the defendant knew that G would be in the van heading to school, watched her van‘s route specifically to see her, and cleared a spot to allow himself to wait on the bench until he did. At trial, Detective Robert Guilbeault of the New Milford Police Department testified that fresh snow from the night before had been cleared off the bench, with fresh footprints directed toward the intersection. Further, the jury could have inferred that, on January 18, 2018, the defendant followed G to school upon seeing the van drive by because he parked in a nearby parking lot on the van‘s route, waited for the van to pass, and immediately pulled out when it did. Although the defendant claimed at trial that he was unaware that G attended school there, and to the officers that afternoon that he was looking for his own children when he followed the van, the jury was not required to believe him, and the state presented evidence that, during the controlled phone call between R and the defendant, R told the defendant that G was attending the same school as before she was removed from R‘s care. Therefore, the evidence presented at trial justifies the inference that, on January 3 and 18, 2018, the defendant had the requisite intent to stalk and to follow G.35 Accordingly, we conclude that the state presented sufficient evidence to sustain both convictions of criminal violation of a protective order.
2
Finally, we turn to the defendant‘s claim that the evidence was insufficient to convict him of two counts of stalking in the first degree. The defendant argues that the evidence is insufficient to convict him because “course of conduct” requires “two or more acts,” and the evidence was insufficient to convict him on the January 3, 2018 charge because there was no evidence that he violated the protective order on that day. We disagree and affirm the conviction of stalking in the first degree.
To convict the defendant of two counts of stalking in the first degree, as those counts were charged in the present case, the state had to prove that the defendant committed one count of stalking in the first degree in violation of
To satisfy the stalking in the second degree element of each charge, the state was required to prove beyond a reasonable doubt that the defendant knowingly engaged in a “course of conduct” directed at a specific person that would reasonably cause fear or emotional distress.
Construing the evidence presented at trial in the light most favorable to sustaining the verdict; e.g., State v. Harris, 227 Conn. 751, 757, 631 A.2d 309 (1993); the jury reasonably could have inferred that, on January 3, 2018, the defendant knowingly lay in wait for, monitored, surveilled, or observed G, constituting one “act” for purposes of
With respect to the additional factors required for each conviction under
The judgments are affirmed.
In this opinion the other justices concurred.