State v. Cancel

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STATE OF CONNECTICUT v. SANTOS CANCEL
(AC 34639)
Lavine, Keller and Schaller, Js.
Argued October 17, 2013—officially released April 1, 2014

(Appeal from Superior Court, judicial district of
Waterbury, O’Keefe, J.)
William B. Westcott, assigned counsel, for the appel-
lant (defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Maureen
Platt, state’s attorney, and Terence D. Mariani, Jr.,
senior assistant state’s attorney, for the appellee (state).
Opinion

SCHALLER, J. The defendant, Santos Cancel, appeals
from the judgments of conviction, following a jury trial,
in the first case, of sexual assault in the fourth degree
in violation of General Statutes § 53a-73a (a) (1) (A),
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (1), and risk of injury to a child in violation
of § 53-21 (a) (2), and, in the second case, of sexual
assault in the fourth degree in violation of § 53a-73a (a)
(1) (A), risk of injury to a child in violation of § 53-21
(a) (1), and risk of injury to a child in violation of § 53-
21 (a) (2). On appeal, the defendant claims that (1) the
evidence was insufficient to support his conviction in
the second case, and (2) the trial court improperly
joined the two cases for trial. We affirm the judgments
of the trial court.
The jury reasonably could have found the following
facts with respect to the charges in the first case, which
involved the victim, J.1 J was eleven years of age in
February, 2009, and resided with her uncle. J’s mother
resided with the defendant and three of J’s maternal
siblings, all minors, in a nearby city. Sometime in Febru-
ary, 2009, J went to her mother’s residence for an over-
night visit. J’s mother, the defendant, and the three
other children were present in the residence during J’s
stay. On the night of her visit, J went to sleep in her
sisters’ room, where she shared a bed with two of her
siblings. J later awoke to find the defendant sitting on
the floor touching her ‘‘front private area.’’ When the
defendant realized that J was awake, he apologized to
her. J’s mother then called for the defendant, prompting
him to leave the room. Later that night, the defendant
returned to the bedroom. He woke J and instructed her
to go to another bedroom in the residence. J proceeded
to go into the other bedroom, alone, and went back to
sleep. The defendant then entered the other bedroom.
He shut the door, positioned himself on top of J and
‘‘went up and down.’’ The defendant then cut a hole
in J’s underwear and initiated sexual contact with J’s
intimate areas. Following her encounter with the defen-
dant, J went into the bathroom and felt a ‘‘wet’’ sensa-
tion in and around her intimate parts.
The next day, J returned to her uncle’s home crying
and ostensibly nervous. Sometime later, J told her
uncle’s girlfriend that she was having ‘‘a problem.’’ J
explained how the defendant had ‘‘told her to go to
sleep and to lay . . . face down,’’ and how he had cut
her pants. J also told her uncle that the defendant had
tried to ‘‘abuse her’’ the night she stayed at her mother’s
home. J’s uncle subsequently contacted the social
worker at J’s school. The social worker met with J, and
J explained what occurred on the night she stayed at
her mother’s residence. After meeting with J, the social
worker reported the incident to the Department of Chil-
dren and Families (department). The department, in
turn, contacted the police. Thereafter, J and her uncle
went to the police station where J explained to the
police how the defendant had made inappropriate con-
tact with her on the night she stayed at her mother’s
residence. The police subsequently initiated an investi-
gation into the incident and sought out J’s mother and
the defendant for questioning. When the police arrived
at the mother’s residence, the defendant ran out the
back door. J’s mother, however, agreed to accompany
the police to the station for questioning. During ques-
tioning, J’s mother indicated that during J’s most recent
visit, J had told her that she woke up with holes in her
underwear. J’s mother also indicated that one of her
other daughters had reported waking up with holes in
her underwear on several occasions.
The jury reasonably could have found the following
facts with respect to the charges in the second case,
involving the victim, G. G was ten years of age in Febru-
ary, 2009, and one of J’s siblings. G lived with her mother
and the defendant on a permanent basis. After speaking
to her mother in connection with J, the police ques-
tioned G. G told the police that on certain nights, the
defendant would come into her room and tell her to
change her sleeping position. In the mornings that fol-
lowed the defendant’s nighttime visits, G woke up to
find holes in her underwear and pants, always in the
vicinity of her intimate areas. These holes were never
present when she went to sleep, but appeared after she
woke up the next morning. She was uncertain of what
caused the holes to appear, but believed that her cat
caused the holes in her clothing because her cat pre-
viously had ripped holes in her sister’s clothing. She
explained that the holes in her clothing appeared only
during the time the defendant lived in the residence.
She usually would give the underwear to her mother
so she could mend them or throw them away. G revealed
to police that she was wearing a pair of the mended
underwear during questioning and that the dresser at
her mother’s residence contained many pairs of the
underwear that still had holes in them or had been
mended by her mother. With the mother’s permission,
the police took possession of the underwear G wore
at the time of questioning. The police subsequently
obtained and executed a search warrant on the mother’s
residence. During the search, the police seized twelve
additional pairs of underwear and two pairs of pants
that either had holes in them or appeared to have been
mended. In addition, the police seized two pairs of
scissors. The thirteen pairs of underwear and two pants
seized by the police subsequently were submitted for
forensic analysis. The forensic analysis of the clothing
revealed that the two pants and six out of the thirteen
pairs of underwear had holes consistent with being cut
by a sharp blade, not ripped. The holes in each item
were located between the rear end and genital area.
DNA analysis revealed that the defendant’s semen was
present on the inside and outside of three pairs of G’s
underwear and one pair of her pants. The defendant
could not be eliminated as the source of semen present
on another pair of underwear.
The defendant was arrested on March 5, 2009.2 With
respect to J’s case, the state, in a substitute information,
charged the defendant with one count of attempt to
commit sexual assault in the first degree in violation
of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (2),
one count of sexual assault in the fourth degree in
violation of § 53a-73a (a) (1) (A), and two counts of
risk of injury to a child in violation of § 53-21 (a) (1) and
(2). With respect to G’s case, the state, in a substitute
information, charged the defendant with one count of
sexual assault in the fourth degree in violation of § 53a-
73a (a) (1) (A), and two counts of risk of injury to a
child in violation of § 53-21 (a) (1) and (2).
Before trial commenced, the state moved for a con-
solidated trial on the charges in both cases. The court
granted the motion after defense counsel raised no
objection.
At the conclusion of evidence, the jury found the
defendant not guilty of attempt to commit sexual assault
in the first degree, but guilty on each of the remaining
charges in J’s case. The jury found the defendant guilty
of all charges in G’s case. The court sentenced the
defendant to a total effective term of thirty years of
imprisonment.3 This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
The defendant first claims that the evidence was
insufficient to support his conviction of sexual assault
in the fourth degree and risk of injury to a child with
respect to G’s case. The defendant contends that in
reviewing this claim, we are limited to a review of the
evidence presented as to G. Because our review is con-
fined to evidence that is properly attributable to G’s
case, the defendant contends that the state did not
establish that he had sexual contact with G and thereby
failed to satisfy its burden of proving the charges with
respect to G beyond a reasonable doubt. We disagree.
A
We begin by addressing the defendant’s contention
that we must disregard certain evidence presented at
the consolidated trial for purposes of reviewing the
sufficiency of the evidence for G’s case. The defendant
specifically contends that J’s testimony was not admit-
ted for any cross admissible purpose in G’s case. Thus,
according to the defendant, we cannot consider J’s testi-
mony in determining whether there was sufficient evi-
dence to convict him of the charges with respect to G.
We are not persuaded.
The following additional facts and procedural history
are necessary to resolve the defendant’s contention
with respect to the proper scope of our sufficiency
analysis. The jury heard J’s testimony one day prior to
G’s testimony. The defendant did not ask the court
to instruct the jury about any limitations or specific
purposes for which J’s testimony could be used with
respect to the charges in G’s case.
In support of his contention that J’s testimony cannot
be considered in determining whether there was suffi-
cient evidence to support the jury’s verdict in G’s case,
the defendant directs our attention to State v. Payne,
303 Conn. 538, 34 A.3d 370 (2012). In Payne, our
Supreme Court held that the trial court improperly
joined a felony murder case and a jury tampering case.
Id., 542–43. The state argued that the joinder should be
affirmed ‘‘because the evidence in the two cases was
cross admissible. . . . [E]vidence of jury tampering
was admissible to show consciousness of guilt in the
felony murder case.’’ Id., 543 n.3. Our Supreme Court
disagreed and concluded ‘‘that it would be inappropri-
ate to affirm [the trial court’s joinder] on the basis of
cross admissibility where . . . the trial court did not
admit the evidence [of jury tampering] for conscious-
ness of guilt, and neglected to instruct the jurors regard-
ing impermissible inferences that could be drawn from
the joinder of the two cases, such as inferring the defen-
dant’s propensity to commit a crime. If the parties had
been permitted to use the evidence for cross admissible
purposes at trial, the trial court would have needed to
instruct the jury regarding inferences that could not be
drawn from such evidence.’’ Id. The defendant argues
that the foregoing rationale in Payne supports the prop-
osition that, when analyzing a sufficiency claim arising
from a consolidated trial, we may consider the evidence
only for the limited purpose for which it was admitted.
Accordingly, because J’s testimony was not admitted
for any cross admissible purpose, the defendant argues
that it has ‘‘no legal import whatsoever’’ as to G’s case.
Notwithstanding the defendant’s reading of Payne,
we are unable to discern any basis for his argument
from that opinion. The issue in Payne was whether the
joinder in the underlying criminal trial was proper, not
whether sufficient evidence existed to support the jury’s
verdict. Id., 542. Nowhere in its opinion did our Supreme
Court address the scope of the evidence that a reviewing
court may consider for purposes of resolving a suffi-
ciency claim on appeal from a consolidated trial. More-
over, the defendant’s position squarely conflicts with
the great weight of authority that commands us to
review claims of evidentiary insufficiency in light of ‘‘all
of the evidence [adduced at trial].’’ (Emphasis added;
internal quotation marks omitted.) State v. Morelli, 293
Conn. 147, 153, 976 A.2d 678 (2009). In other words,
‘‘we review the sufficiency of the evidence as the case
was tried . . . .’’ State v. Smith, 73 Conn. App. 173,
179–80, 807 A.2d 500, cert. denied, 262 Conn. 923, 812
A.2d 865 (2002); see also State v. Rodriguez, 39 Conn.
App. 579, 593, 665 A.2d 1357 (1995) (‘‘[o]ur review of
a claim of insufficiency of the evidence encompasses
all of the evidence adduced at trial’’), rev’d on other
grounds, 239 Conn. 235, 684 A.2d 1165 (1996). Accord-
ingly, we have traditionally tested claims of evidentiary
insufficiency ‘‘by reviewing no less than, and no more
than, the evidence introduced at trial.’’ (Internal quota-
tion marks omitted.) State v. Morelli, supra, 153; see
also State v. Adams, 139 Conn. App. 540, 550, 56 A.3d
747 (2012) (appellate review of evidentiary insufficiency
claim incorporates all evidence, even inadmissible evi-
dence, adduced at trial), cert. denied, 308 Conn. 928,
64 A.3d 121 (2013).
In sum, we conclude that the defendant’s reliance on
Payne is misplaced and that he cannot prevail on his
claim regarding the limited scope of our sufficiency
analysis.
B
We now address the defendant’s claim that the evi-
dence was insufficient to support his conviction with
respect to G. Specifically, the defendant contends that
evidence was insufficient to establish that he ‘‘subjected
G to sexual contact or that he had sexual contact with
[G’s] intimate parts,’’ both essential elements of the
crimes with which he was charged. We are not per-
suaded.
Our standard of review for claims of insufficient evi-
dence is well settled. ‘‘[W]e apply a two part test. First,
we construe the evidence in the light most favorable
to sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [jury] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt. . . .
[P]roof beyond a reasonable doubt does not mean proof
beyond all possible doubt . . . nor does proof beyond
a reasonable doubt require acceptance of every hypoth-
esis of innocence posed by the defendant that, had it
been found credible by the trier, 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 jury’s verdict of guilty.’’ (Inter-
nal quotation marks omitted.) State v. Holley, 144 Conn.
App. 558, 562–63, 72 A.3d 1279, cert. denied, 310 Conn.
946, 80 A.3d 907 (2013).
‘‘[A]ny claim of [insufficient evidence] introduced to
prove a violation of a criminal statute must necessarily
begin with the skeletal requirements of what necessary
elements the charged statute requires to be proved.’’
(Internal quotation marks omitted.) State v. Rose, 112
Conn. App. 324, 328, 963 A.2d 68 (2009), aff’d, 305 Conn.
594, 46 A.3d 146 (2012). Accordingly, our first task is
to analyze the relevant statutes.
First, for the jury to find the defendant guilty of sexual
assault in the fourth degree in violation of § 53a-73a (a)
(1) (A) with respect to G, the state had to prove beyond
a reasonable doubt that (1) the defendant subjected G
to ‘‘sexual contact,’’ (2) G was under thirteen years of
age, and (3) the defendant was two years older than
G.4 Second, for the jury to find the defendant guilty of
risk of injury to a child in violation of § 53-21 (a) (1)
with respect to G, the state had to prove beyond a
reasonable doubt that (1) G was under sixteen years
of age, and (2) the defendant ‘‘wilfully or unlawfully
caus[ed] or permit[ted] [G] to be placed in such a situa-
tion that . . . [G’s] health [was] likely to be injured or
[G’s] morals [were] likely to be impaired, or [that the
defendant performed] any act likely to impair the health
or morals of [G] . . . .’’ Finally, for the jury to find the
defendant guilty of risk of injury to a child in violation
of § 53-21 (a) (2) with respect to G, the state had to
prove beyond a reasonable doubt that (1) G was under
sixteen years of age, and (2) the defendant either had
‘‘contact with [G’s] intimate parts’’ or subjected G ‘‘to
contact with [the defendant’s] intimate parts . . . in a
sexual and indecent manner likely to impair [G’s] health
or morals . . . .’’5
The defendant contends that the state failed to estab-
lish the element of sexual contact necessary to support
his conviction with respect to G. Specifically, the defen-
dant contends that the evidence merely establishes
‘‘that at some point G wore the underwear, at some
point a hole was cut in them, and that at some point
the defendant’s semen was wiped on the underwear.’’
In addition, the defendant contends that ‘‘[i]t is only
after the state implores the jury to consider J’s indepen-
dent . . . testimony, together with the [evidence of the
defendant’s prior misconduct] from ten years earlier,
that the state is able to prevail with an argument . . .
that the defendant must have had sexual contact with
G.’’ (Emphasis in original.)
During trial, the parties stipulated that the defendant
previously had been convicted of charges stemming
from an incident where he engaged in sexual inter-
course with a fourteen year old female. The court
informed the jury of the parties’ stipulation, and
instructed it that the prior conviction was ‘‘offered to
show that the defendant had an unusual disposition,
that is, a sexual interest in children,’’ and could consider
it as evidence of motive. From this, the jury reasonably
could have found that the defendant had a ‘‘propensity
to engage in aberrant and compulsive criminal sexual
behavior’’ with children. State v. DeJesus, 288 Conn.
418, 470, 953 A.2d 45 (2008), superseded in part after
reconsideration by State v. Sanseverino, 291 Conn. 574,
579, 969 A.2d 710 (2009). The jury heard testimony from
J that the defendant entered her bedroom at night, cut
a hole in her underwear, initiated sexual contact with
her intimate parts, and that she felt a ‘‘wet’’ sensation
in and around her intimate parts after her encounter
with the defendant. From J’s testimony, the jury reason-
ably could have found that the defendant derived sexual
gratification from the particular act of cutting a hole
in a child’s underwear in order to initiate sexual contact
with the child’s intimate parts. See State v. George A.,
308 Conn. 274, 300, 63 A.3d 918 (2013) (sexually unique
activities constitute virtual signature of defendant’s pro-
pensity to engage in such activities).
The jury also heard testimony from G that the defen-
dant entered her bedroom at night ‘‘[a]ll the time’’ and
told her to sleep on her stomach instead of her back.
G would then wake up with holes in her underwear or
pants that corresponded to the area of her intimate
parts. The jury heard specific testimony that these holes
only appeared during the time period in which the
defendant lived with G and that G’s mother either
mended the holes or discarded the clothing entirely.
The jury heard expert testimony that, out of the fifteen
mended items of clothing recovered from G’s bedroom
dresser and her person, the defendant’s semen was
found both inside and outside the area that corres-
ponded to G’s intimate parts on four of the items, and
eight items contained holes that were created with a
sharp blade.
In light of this evidence, the jury reasonably could
have inferred that the defendant entered G’s bedroom
at night and cut holes in her underwear for purposes
of sexual gratification, just as he did with JE. See State
v. Merriam, 264 Conn. 617, 665–66, 835 A.2d 895 (2003)
(‘‘[i]t is the distinctive combination of actions which
forms the signature or modus operandi of the crime
. . . and it is this criminal logo which justifies the infer-
ence that the individual who committed the first offense
also committed the second’’ [internal quotation marks
omitted]). It also was reasonable for the jury to infer
that the defendant, when he cut holes in the area of G’s
underwear corresponding to her intimate parts, made
sexual contact with G’s intimate parts for the purposes
of sexual gratification. See State v. Alberto M., 120 Conn.
App. 104, 111, 991 A.2d 578 (2010) (in ‘‘determining
whether sexual contact occurred, it is of no conse-
quence . . . that the contact occurred through the vic-
tim’s clothing rather than against her bare skin’’).
Moreover, the jury reasonably could have inferred that
either depositing semen on a child’s underwear or enter-
ing a child’s bedroom as she slept at night for purposes
of cutting her underwear constituted a situation likely
to impair the morals of a child.
Construing the evidence in the light most favorable
to sustaining the verdict, we conclude that the evidence
was sufficient to support the defendant’s conviction
with respect to G.
II
The defendant next claims that the trial court abused
its discretion when it granted the state’s motion to join
the two cases and thereby deprived him of his right to
a fair trial under the due process clause of the federal
constitution. U.S. Const., amend. XIV, § 1. The defen-
dant concedes that trial counsel did not object to the
state’s motion for joinder, but requests that we review
his unpreserved claim pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989).6 The state, in
response, argues that defense counsel waived any claim
challenging the joinder of the two cases on appeal.
Specifically, the state argues that defense counsel’s
statement that she did not object to joinder ‘‘amounted
to an express agreement with the state’s position that
joinder was appropriate.’’ We agree with the state.
The following additional facts and procedural history
are necessary to resolve the defendant’s claim. On
December 1, 2009, the state filed a motion to join J’s
case and G’s case. It was not until September 14, 2011,
however, that the parties ‘‘discussed briefly’’ the motion
in chambers. The following day, September 15, 2011,
the parties addressed the motion before the trial court.
The court noted that ‘‘counsel for the defendant indi-
cated that there might not be a lot of argument on [the
motion].’’ Defense counsel replied, ‘‘I don’t have an
objection, Your Honor. For my own reasons.’’ The court
then granted the motion. The parties did not raise the
issue of joinder for the remainder of trial.
We first address the defendant’s request that we
review his unpreserved claim pursuant to State v. Gold-
ing, supra, 213 Conn. 233.7 ‘‘In the usual Golding situa-
tion, the defendant raises a claim on appeal which,
while not preserved at trial, at least was not waived
at trial. . . . [A] constitutional claim that has been
waived does not satisfy the third prong of the Golding
test because, in such circumstances, we simply cannot
conclude that injustice [has been] done to either party
. . . or that the alleged constitutional violation clearly
exists and clearly deprived the defendant of a fair trial
. . . . To reach a contrary conclusion would result in
an ambush of the trial court by permitting the defendant
to raise a claim on appeal that his or her counsel
expressly had abandoned in the trial court.’’ (Citations
omitted; emphasis altered; internal quotation marks
omitted.) State v. Hampton, 293 Conn. 435, 448–49, 988
A.2d 167 (2009); see State v. Hudson, 122 Conn. App.
804, 813, 998 A.2d 1272 (same), cert. denied, 298 Conn.
922, 4 A.3d 1229 (2010). Accordingly, we must determine
whether the defendant waived any claim challenging
the joinder of the two cases at trial.
‘‘[W]aiver is [t]he voluntary relinquishment or aban-
donment—express or implied—of a legal right or
notice. . . . In determining waiver, the conduct of the
parties is of great importance. . . . [W]aiver may be
effected by action of counsel. . . . When a party con-
sents to or expresses satisfaction with an issue at trial,
claims arising from that issue are deemed waived and
may not be reviewed on appeal. . . . Thus, [w]aiver
. . . involves the idea of assent, and assent is an act of
understanding.’’ (Citations omitted; internal quotation
marks omitted.) State v. Hampton, supra, 293 Conn.
449.
The record in the present case demonstrates that
defense counsel did not file an objection to the state’s
motion for joinder between December, 2009, when the
state filed it, and September, 2011, the time of the defen-
dant’s trial.8 In addition, the record suggests that the
parties discussed the motion both in chambers and
before the court. In chambers, it appears that defense
counsel had suggested that there would ‘‘not be a lot
of argument’’ regarding the motion. Then, when the
court heard the parties on the motion, defense counsel
expressly stated that there was no objection to the
motion. After the court granted the motion, defense
counsel did not indicate any disagreement with the
court’s decision. For the remainder of the consolidated
trial, defense counsel did not raise the issue of joinder.
In sum, the defendant had nearly two years to review
the prospect of joinder, as well as an opportunity to
raise an objection to the proposed joinder before trial.
The defendant, nevertheless, did nothing to oppose the
motion for joinder before trial, stated that he had no
objection to the motion before the court, did not indi-
cate any disagreement with the court’s decision to join
the two cases for trial, and thereby assented to the
propriety of a consolidated trial.9 On the basis of the
foregoing, we conclude that the defendant waived any
constitutional claims he may have had regarding the
joinder.10 ‘‘[A] party may not pursue one course of action
at trial for tactical reasons and later on appeal argue
that the path he rejected should now be open to him.
. . . Golding is not intended to give an appellant a
second bite at the apple.’’ (Internal quotation marks
omitted.) State v. Kitchens, 299 Conn. 447, 480, 10 A.3d
942 (2011).
We also reject the defendant’s claim that it was plain
error for the trial court to grant the state’s motion for
joinder. See Practice Book § 60-5. ‘‘Plain error review
is reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings.’’ (Internal quotation marks
omitted.) State v. Myers, 290 Conn. 278, 287–88, 963
A.2d 11 (2009). Because we have concluded that the
defendant waived any claim regarding the joinder of
the cases for trial, ‘‘there is no error to correct.’’ State
v. Kitchens, supra, 299 Conn. 474 n.18. ‘‘[A] valid waiver
. . . thwarts plain error review of a claim.’’ (Internal
quotation marks omitted.) Mozell v. Commissioner of
Correction, 291 Conn. 62, 70, 967 A.2d 41 (2009).
The judgments are affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victims or others through whom the victims’ identities may
be ascertained. See General Statutes § 54-86e.
2
The defendant initially was arrested on the charges arising from J’s case.
Following further police investigation, on August 5, 2009, the defendant was
arrested on charges stemming from G’s case.
3
With respect to J’s case, the court sentenced the defendant to a term
of fifteen years of imprisonment. With respect to G’s case, the court sen-
tenced the defendant to a term of fifteen years of imprisonment to run
consecutively to the sentence in J’s case.
4
‘‘Sexual contact’’ is defined as ‘‘any contact with the intimate parts of
a person not married to the actor for the purpose of sexual gratification of
the actor or for the purpose of degrading or humiliating such person or any
contact of the intimate parts of the actor with a person not married to the
actor for the purpose of sexual gratification of the actor or for the purpose
of degrading or humiliating such person.’’ General Statutes § 53a-65 (3).
5
‘‘Intimate parts’’ is defined as ‘‘the genital area or any substance emitted
therefrom, groin, anus or any substance emitted therefrom, inner thighs,
buttocks or breasts.’’ General Statutes § 53a-65 (8).
6
The defendant alternatively requests that we review his claim for plain
error. See Practice Book § 60-5.
7
Pursuant to Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation clearly exists and clearly deprived
the defendant of a fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate tribunal is free,
therefore, to respond to the defendant’s claim by focusing on whichever
condition is most relevant in the particular circumstances.’’ (Emphasis omit-
ted; footnote omitted.) State v. Golding, supra, 213 Conn. 239–40.
8
We recognize that defense counsel was appointed to represent the defen-
dant on December 8, 2009, approximately one week after the state had filed
its motion for joinder.
9
Our Supreme Court previously has recognized that defense counsel may
waive a challenge to joinder for ‘‘tactical or other valid reasons.’’ State v.
Berube, 256 Conn. 742, 747, 775 A.2d 966 (2001); see State v. Fleury, 135
Conn. App. 720, 728, 42 A.3d 499 (decision to seek severance one of trial
tactics), cert. denied, 305 Conn. 919, 47 A.3d 388 (2012). To the extent that
the record in the present case contains no indication to the contrary, we
must presume that defense counsel’s acquiescence to the joinder of the two
cases was for tactical purposes. See State v. Fleury, supra, 728 (‘‘[i]t is
well established that [w]e may assume with confidence that most counsel,
whether retained or appointed, will protect the rights of an accused’’ [internal
quotation marks omitted]). ‘‘[H]aving made the knowing, intelligent and
voluntary choice to avail himself of the services of counsel, a defendant
necessarily surrenders to that counsel the authority to make a wide range
of strategic and tactical decisions regarding his case. . . . Absent a demon-
stration of ineffectiveness, counsel’s word on such matters is the last.’’
(Internal quotation marks omitted.) Id., 728–29.
10
The defendant contends that we must review his claim in light of State
v. Payne, supra, 303 Conn. 538, wherein our Supreme Court abandoned the
presumption in favor of joinder that existed at the time the present case
was tried. Id., 549–50. We are not persuaded. In the wake of Payne, our
courts have reviewed trial court decisions to grant a motion for joinder only
where the defendant did not waive the right to challenge it at trial. See,
e.g., State v. LaFleur, 307 Conn. 115, 154 n.31, 51 A.3d 1048 (2012) (defendant
specifically objected to state’s motion for joinder); State v. Perez, 147 Conn.
App. 53, 93 n.38, 80 A.3d 103 (2013) (same), cert. granted on other grounds,
311 Conn. 920, A.3d (2014); State v. Morgan, 140 Conn. App. 182,
194–95, 201–207, 57 A.3d 857 (2013) (same); State v. Bree, 136 Conn. App.
1, 6, 43 A.3d 793 (2012) (same), cert. denied, 305 Conn. 926, 47 A.3d 885
(2012); see also State v. Kalil, 136 Conn. App. 454, 477–78, 46 A.3d 272
(2012) (same in context of joining cases of multiple defendants), cert. granted
on other grounds, 307 Conn. 955, 59 A.3d 1191 (2013); State v. Cote, 136
Conn. App. 427, 449, 46 A.3d 256 (2012) (same), cert. granted on other
grounds, 308 Conn. 913, 61 A.3d 1100 (2013).