October 9, 2018
information charging the defendant with the crimes of sexual
assault in the first degree and unlawful restraint in the
second degree, and with two counts of the crime of risk of
injury to a child, brought to the Superior Court in the
judicial district of Fairfield and tried to the jury before
Pavia, J.; verdict and judgment of guilty of
unlawful restraint in the second degree and risk of injury to
a child, from which the defendant appealed to this court.
Matthew C. Eagan, assigned counsel, with whom was Emily
Graner Sexton, assigned counsel, for the appellant
R. Aiello, special deputy assistant state's attorney,
with whom, on the brief, were John C. Smriga, state's
attorney, and Colleen P. Zingaro, assistant state's
attorney, for the appellee (state).
DiPentima, C. J., and Lavine and Harper, Js.
defendant, Jerrell R., appeals from the judgment of
conviction, rendered following a jury trial, of risk of
injury to a child in violation of General Statutes §
53-21 (a) (1), risk of injury to a child in violation of
§ 53-21 (a) (2), and unlawful restraint in the second
degree in violation of General Statutes § 53a-96 (a). On
appeal, the defendant claims that (1) his conviction of both
risk of injury to a child charges violate his constitutional
protection against double jeopardy and (2) the prosecutor
made improper remarks to the jury during closing and rebuttal
arguments that deprived him of his due process right to a
fair trial. We affirm the judgment of the trial court.
following facts, which the jury reasonably could have found,
and procedural history are relevant to this appeal. The
victim, the victim's mother, and the victim's two
siblings lived on the first floor of a six family home. The
defendant was the father of both the victim, who was six
years old, and the victim's sister. On the evening of
March 7, 2015, the defendant sent text messages to the
victim's mother, asking if he could come to her home. The
victim's mother acquiesced, and the defendant arrived
twenty minutes later. After watching television and
conversing with the defendant and the victim in the bedroom
of the victim's mother, the victim's mother left the
room to shower.
approximately eight minutes, the victim's mother heard
the victim screaming. At first, the victim's mother did
not think anything of the screaming because she believed that
the defendant and victim were just playing. After realizing
that the victim was calling for help, the victim's mother
ran out of the bathroom and toward her bedroom, where the
door was partially shut. Upon opening the door, the
victim's mother witnessed the defendant holding the
victim by the face and pinning her against the wall while her
pants were halfway down. After the victim's mother
returned to the bedroom, the defendant went into the kitchen,
got on his knees, and started crying and pulling on his hair.
At that point, the defendant left the home after the
victim's mother told him to leave. The victim later
revealed in a forensic interview that while her mother was in
the shower, the defendant had removed her pants, touched her
vagina, and forced her head toward his exposed penis.
the defendant left the home, the victim described her
encounter with the defendant to her mother, who then tried to
reach the defendant via phone in an attempt to have him come
back to the house. After he stopped answering text messages,
the victim's mother contacted the police, who
subsequently interviewed the victim at her home. The
victim's mother again urged the defendant to come back to
the house, but he refused once he came close to the home and
noticed police cars parked outside. The victim subsequently
was transported to the hospital, accompanied by her mother
and the responding police officers. In an attempt to get the
defendant to come to the hospital, the victim's mother
sent a text message to the defendant saying that the victim
had suffered an asthma attack and was going to the hospital.
defendant later arrived at the hospital, where he spoke with
police officers after waiving his
Mirandarights. During questioning, the defendant
claimed to be concerned that other men were touching his
daughter inappropriately, and he admitted that he might have
touched the victim's vagina. Additionally, the defendant
later conceded in an interview with a social worker from the
Department of Children and Families that he restrained the
victim and may have touched her vagina by accident.
state originally filed a seven count information after the
victim's two siblings also alleged that the defendant had
inappropriate sexual contact with them. After one of the
victim's siblings declined to testify at trial, the state
filed an amended information, charging the defendant with
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (2), risk of injury to a child in
violation of § 53-21 (a) (1), risk of injury to a child
in violation of § 53-21 (a) (2), and unlawful restraint
in the second degree in violation of § 53a-96 (a). All
of these charges related to the incident with the victim.
trial, the jury found the defendant not guilty of sexual
assault in the first degree and guilty of unlawful restraint
and both counts of risk of injury to a child. The court
subsequently sentenced the defendant to a total effective
sentence of eighteen years imprisonment, execution suspended
after eight years, followed by twenty-five years of
probation. This appeal followed. Additional facts will be set
forth as necessary.
the defendant claims that his conviction of risk of injury to
a child under both § 53-21 (a) (1) and
violates his constitutional protection against double
jeopardy because the offenses arose from the same transaction
and, pursuant to Blockberger v. United
States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306
(1932), both offenses required proof of substantively
identical elements. We disagree.
preliminary matter, the defendant acknowledges that he failed
to raise the present claim before the trial court. The
defendant argues, however, that his unpreserved claim
nonetheless is reviewable 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). Under Golding, ‘‘a
defendant can prevail on a claim of constitutional error not
preserved at trial only if all of the following
conditions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject to
harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a
reasonable doubt. In the absence of any one of these
conditions, the defendant's claim will fail.''
(Emphasis in original; footnote omitted.) State v.
Golding, supra, 239-40. ‘‘The first two
steps in the Golding analysis address the review
ability of the claim, while the last two steps involve the
merits of the claim.'' (Internal quotation marks
omitted.) State v. Britton, 283 Conn. 598,
615, 929 A.2d 312 (2007).
claim is reviewable pursuant to Golding because the
record is adequate for review and the claim is of
constitutional magnitude. See State v.
Urbanowski, 163 Conn.App. 377, 386, 136 A.3d 236
(2016), aff'd, 327 Conn. 169, 172 A.3d 201 (2017).
Moreover, the defendant claims that he has received
duplicative punishments for the same offense in a single
trial. ‘‘A defendant may obtain review of a
double jeopardy claim, even if it is unpreserved, if he has
received two punishments for two crimes, which he claims were
one crime, arising from the same transaction and prosecuted
at one trial . . . .'' (Internal quotation marks
omitted.) Id., 386-87. Because the defendant's
claim is reviewable, we next address its merits.
first set forth the applicable standard of review and
relevant legal principles that guide our analysis.
‘‘A defendant's double jeopardy challenge
presents a question of law over which we have plenary review.
. . . The double jeopardy clause of the fifth amendment to
the United States constitution provides: [N]or shall any
person be subject for the same offense to be twice put in
jeopardy of life or limb. The double jeopardy clause is
applicable to the states through the due process clause of
the fourteenth amendment. . . . This ...