State v. Jose T.

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The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.

All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.

The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ D’AURIA, J., with whom ECKER, J., joins, dissent- ing in part. I agree with and join Justice McDonald’s thoughtful concurring and dissenting opinion, in which he cogently explains why the trial court’s improper jury instruction on the delayed disclosure of the child sexual assault victim likely misled the jury, requiring rever- sal of the judgment of conviction and a remand for a new trial. Although I need not reach the evidentiary claim of the defendant, Jose T., regarding the improper admission of the video recording of the victim’s forensic interview, I write separately to express my skepticism of the majority’s conclusion in part IV of its opinion that the defendant’s failure to challenge on appeal one of the alternative grounds on which the trial court might have relied to admit the forensic interview renders his claim moot because this court “cannot grant the defendant any practical relief.”

Although the majority’s conclusion is based on our case law, of relatively recent vintage, which invokes the mootness doctrine to dispose of such claims on juris- dictional grounds, it is clear to me that the failure to brief an alternative ground under these circumstances should not constitute a jurisdictional defect, and our use of the mootness doctrine in this context confuses an appellate court’s subject matter jurisdiction with pru- dential considerations of the exercise of its discretionary authority to address issues that have not been raised or briefed adequately on appeal. Compare State v. Lester, 324 Conn. 519, 527, 153 A.3d 647 (2017) (“when an appellant challenges a trial court’s adverse ruling, but does not challenge all independent bases for that ruling, the appeal is moot”), with Blumberg Associates World- wide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 164–66, 84 A.3d 840 (2014) (when appellant does not challenge all independent bases for trial court’s ruling, appellate courts have discretionary authority to raise and decide those issues sua sponte in certain cir- cumstances), and In re Jose B., 303 Conn. 569, 582 n.8, 34 A.3d 975 (2012) (“[i]t is arguable that justiciability is not truly a question of subject matter jurisdiction”); see, e.g., Schoenhorn v. Moss, 347 Conn. 501, 518, 298 A.3d 236 (2023) (Ecker, J., concurring in the judgment) (distinguishing between court’s subject matter jurisdic- tion and “prudential limitation” on court’s “authority to grant relief”).

The point is easily demonstrated. If this court wanted to resolve the defendant’s evidentiary claim on the mer- its, I am unaware of any jurisdictional limitation that would prevent us from doing so. Generally, if an appel- late court in Connecticut considers a party’s briefing of a claimed error to be inadequate, the court will deem the claim abandoned. See, e.g., Traylor v. State, 332 Conn. 789, 805, 213 A.3d 467 (2019). But this approach is not mandatory, and, if the court believes that the unbriefed issue requires resolution, it may exercise its discretion to order additional briefing and decide the issue on the merits. See, e.g., Daniels v. Commissioner of Revenue Services, 354 Conn. 768, 776–77, 357 A.3d 672 (2026); Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 164–66. If the initial failure to brief an issue raised a jurisdictional bar to appellate consideration, our authority to review unpreserved claims on appeal, surveyed and described in Blumberg Associates Worldwide, Inc., would not exist.

The subtle but important distinction between a court’s authority to act and prudential limitations on the exercise of that authority “is not merely a matter of semantics without practical effect.” Schoenhorn v. Moss, supra, 347 Conn. 522 (Ecker, J., concurring in the judgment). It is for good reason that “[t]he United States Supreme Court has cautioned against the profligate and indiscrimi- nate description of all limitations on judicial authority as mandatory and jurisdictional . . . .” (Internal quotation marks omitted.) Id., quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006). Such jurisdictional rulings should be avoided “precisely because labeling an issue as jurisdictional can have profound procedural implications that could affect the course, and even the outcome, of a case . . . [a]nd jurisdictional rules are impervious to excuses like waiver or forfeiture. . . . Courts must also raise and enforce them sua sponte.” (Citations omitted; footnote omitted.) Schoenhorn v. Moss, supra, 522–23 (Ecker, J., concurring in the judgment); see also MOAC Mall Holdings, LLC v. Transform Holdco, LLC, 598 U.S. 288, 297, 143 S. Ct. 927, 215 L. Ed. 2d 262 (2023) (“The ‘jurisdictional’ label is significant because it carries with it unique and sometimes severe consequences. An unmet jurisdictional precondition deprives courts of power to hear the case, thus requiring immediate dismissal.”). In light of my conclusion that a new trial is required in the present case on other grounds, I need not more fully explore the fundamental tension in our jurispru- dence between the line of cases characterizing an appel- lant’s failure to “challenge all independent bases for [a trial court’s adverse] ruling” as implicating an appel- late court’s subject matter jurisdiction; State v. Lester, supra, 324 Conn. 527; and those cases characterizing such a failure as grounds to invoke prudential limita- tions on the exercise of an appellate court’s inherent discretionary authority “to act, sua sponte, on grounds not directly raised by the parties . . . .” (Internal quota- tion marks omitted.) Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 143. And, because the majority does not engage on the issue, it is sufficient to point out the existence of this doctrinal incongruity in the hope that it will be resolved soon in a future case.

Regardless of the outcome of that future case, the mootness doctrine, in my view, is particularly unsuit- able for the present case because it is not at all clear that the unbriefed ground was actually a basis for the trial court’s evidentiary ruling. Following a lengthy colloquy in which the parties debated various potentially relevant hearsay exceptions, the trial court ultimately admitted the video on “several” unspecified grounds. Although it could be inferred that the rule of completeness was one of those grounds, the trial court never expressly relied on that doctrine, and the trial transcript plausibly could be read to mean that the trial court relied only on the medical treatment hearsay exception and the rule per- mitting the admission of prior consistent statements for purposes of rehabilitation.1 When various possible bases for admitting evidence are discussed but only explic- itly admitted “on several grounds,” appellate counsel is placed in the untenable position of having to spend valuable space briefing a possible tertiary theory that counsel believes, in good faith, (1) was not the actual basis for the trial court’s decision, and (2) does not warrant serious consideration or analysis. See Fairfield Shores, LLC v. DeSalvo, 205 Conn. App. 96, 105–106, 256 A.3d 716 (2021) (declining to treat appeal as moot when it was ambiguous whether trial court had relied on unchallenged independent finding).

In the defendant’s briefs, his appellate counsel focuses on the medical treatment exception—the only basis expressly identified as a ground for the trial court’s ruling. Counsel then argues that, “[t]o the extent that the trial court overruled [defense counsel’s] objection to the introduction of the forensic interview under the alternative theory that the prior consistent statements were admissible to rebut the impeachment of the wit- ness, it did so in error.” In other words, appellate counsel (reasonably, to my mind) was not certain that she had to address the prior consistent statements theory because it was not a clearly articulated basis of the trial court’s decision. In the defendant’s reply brief, appellate counsel makes clear that she did not believe that the trial court had relied on the rule of completeness, such that she was obliged to address it.2 For these reasons, I believe the defendant is entitled to have his evidentiary challenge resolved on the merits. To decline to do so in the present case is especially unjust because the defendant’s two claims are interdependent. The video was a critical piece of evidence in the case. In a prosecution that came down to a credibility battle, the state’s case could have been weakened (and the erroneous jury instruction correspondingly more harmful) if the jury had not had the opportunity to watch an out-of-court version consisting of the complainant’s fifteen year old self making the allegations in a venue where she was not subject to confrontation and cross-examination. In my view, the majority should have reviewed the defendant’s claim regarding the admissibility of the video.

I therefore respectfully dissent.

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.

All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.

The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ McDONALD, J., with whom D’AURIA and ECKER, Js., join, concurring in part and dissenting in part. If the defense and the state agreed on one thing at trial, it was that, in the words of the prosecutor, “[t]his has always been a case about delayed disclosure.” In such a case, where the jury must assess the relative credibility of the complainant and the defendant, there are only two possibilities. One possibility is that the complainant is telling the truth, that the defendant sexually assaulted her long ago, and that the complainant held off report- ing the crimes for one or more of the many reasons why, as we have come to understand, children often do delay reporting instances of sexual abuse. The other possibility is that, in this particular case, the defendant is telling the truth and the complainant falsely accused him of decade-old crimes, long past the point when he could convincingly defend himself. The more plausible the one theory, the less so the other. It is often difficult to assess these matters in isolation.

Here, however, it is virtually impossible. This case is unique, insofar as the defense argued that the prosecu- tor had offered at least two different sets of explana- tions as to why the complainant had delayed so long in reporting the alleged crimes. On one theory, the pros- ecutor suggested that the complainant had buried or repressed any recollection of the sexual assaults, until a school assignment triggered a series of flashbacks and the recovery of her memories. On another theory, or set of theories, the prosecutor argued that she had never forgotten the assaults. Rather, she stayed silent because of threats, fears, bribery, or other incentives. Unlike in other cases we have considered, then, a core component of the defense’s theory of the case was that the com- plainant’s account not only of the alleged crimes but of the delay itself was inconsistent, laden with lapses of memory, and rendered more problematic by what the defense argued was an inadequate police investigation. That is to say, the issue of delayed disclosure was more than simply one line of attack, interwoven with these other strands of the defense through the common thread of credibility. It was a microcosm of the theories of the case of both the defendant, Jose T., and the state. Under these circumstances, although I agree with the major- ity that the trial court improperly instructed the jury regarding delayed disclosure; see part II A of the majority opinion; I cannot agree with the majority’s conclusion that the instructional error was harmless. See part II C of the majority opinion. Therefore, I concur in part and dissent in part.

I

I begin with some brief background. In our prior cases, we explained how our modern assumptions regarding, and legal rules governing, the delayed disclosure1 of sexual assaults represent a departure from the common- law approach. Specifically, the modern approach repu- diates the common-law “fresh complaint” and “hue and cry” rules, which assumed (and, effectively, required) that crime victims would immediately cry out, alert their neighbors, and report any genuine crime. (Internal quotation marks omitted.) State v. Troupe, 237 Conn. 284, 294–306, 677 A.2d 917 (1996); see also, e.g., State v. Daniel W. E., 322 Conn. 593, 618–28, 142 A.3d 265 (2016), overruled by State v. Adam P., 351 Conn. 213, 330 A.3d 73 (2025); State v. Marshall, 246 Conn. 799, 807–10, 717 A.2d 1224 (1998).

Although those traditional assumptions may still hold true for many crimes,2 sex crimes, especially against children, are different. Over time, we have come to under- stand that there are reasons why children, in particular, may not immediately reveal that they have been sexually abused. This was the principal reason why, in 2019, the legislature eliminated the statute of limitations for any crime involving the “sexual abuse, sexual exploitation or sexual assault” of a child. Public Acts 2019, No. 19-16, § 17 (P.A. 19-16); see also, e.g., State v. Sanderson, 239 Conn. App. 379, 395, 359 A.3d 847 (2026) (discussing P.A. 19-16, § 17).

But that choice was not without its trade-offs. Stat- utes of limitations serve to “prevent the unexpected enforcement of stale and fraudulent claims” and to “aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of wit- nesses, fading memories, disappearance of documents or otherwise.” (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 206–207, 905 A.2d 1135 (2006). When the state prosecutes a defendant for crimes that involve allegations of sexual abuse that occurred a long time ago, the defendant may find that the lengthy delay has made it effectively impossible to establish an alibi or to muster the physical evidence to defend against spurious charges.3

For these reasons, as this court has grappled over the years with the fairest and most appropriate judicial rules to apply to sexual assault prosecutions, we consistently have sought to strike a balance, “accommodati[ng] . . . the interests of the defendant, the state and the victim . . . .” State v. Troupe, supra, 237 Conn. 303; accord State v. Adam P., supra, 351 Conn. 226; State v. Daniel W. E., supra, 322 Conn. 630. This need for balance is at the core of the issue of delayed disclosure.

II

Although I largely agree with the majority’s statement of the harmless error standard that governs nonconsti- tutional errors; see part II C of the majority opinion; a brief discussion of the standard, as applied to cases of alleged child sexual abuse, will be helpful. These are tough cases. There typically is no physical or forensic evidence, no eyewitness or adverse codefendant, no video recording or cell phone data, and no confession. In short, these cases usually have none of the things that courts sometimes count among the ingredients that make up a “strong” case. State v. Grenier, 257 Conn. 797, 807–808, 778 A.2d 159 (2001); see also, e.g., People v. Henderson, 9 Cal. 5th 1013, 1030, 470 P.3d 71, 266 Cal. Rptr. 3d 365 (2020). Rather, these cases often come down to a credibility contest between the complainant and the defendant. See, e.g., State v. Grenier, supra, 807–808. We know from the conviction whom the jury believed, but we can only speculate as to whether jurors might have formed some reasonable doubt if key evidence had been admitted or excluded, or misleading jury instruc- tions were not given.

Given the complexities, it is perhaps not surprising that we have struggled to reach consensus when assessing whether errors likely tipped the outcome in such cases. Compare, e.g., State v. Fernando V., 331 Conn. 201, 202 A.3d 350 (2019) (three to two decision, reversible error), and State v. Favoccia, 306 Conn. 770, 51 A.3d 1002 (2012) (five to two decision, reversible error), with State v. Adam P., supra, 351 Conn. 213 (four to one decision, harmless error). In large part, these divergent outcomes reflect the highly “fact intensive” nature of the inquiry. State v. Adam P., supra, 233. But this court also has been less than consistent in how it has articulated the showing that a defendant must make to establish that a nonconstitutional error is so harmful as to warrant reversal.4 In any event, I agree with the majority that, in assess- ing the harmfulness of an incorrect jury instruction, we must consider, among other things, whether the defense’s and/or the state’s theory of the case hinged on the erroneous instruction, the overall strength of the state’s case against the defendant, and whether the erroneous instruction was misleading in the context of the instructions as a whole. See part II C of the majority opinion; see also, e.g., State v. Adam P., supra, 351 Conn. 233–34; State v. Grenier, supra, 257 Conn. 807–12. To my mind, regardless of the precise standard applied, this is a relatively straightforward case, insofar as each of these factors clearly points in the direction of reversible error.

A

I first consider the parties’ theories of the case and the extent to which those theories turned on the roughly ten year delay between the first charged sexual assault, it is more probable than not that the erroneous action of the [trial] court affected the result. . . . A second line of cases indicates that the defen- dant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict.” (Citations omitted; internal quotation marks omitted.) State v. Grenier, supra, 257 Conn. 807; see also, e.g., State v. Sawyer, 279 Conn. 331, 355, 904 A.2d 101 (2006) (“[f]ew areas of doctrinal development have been marked by greater twisting and turning than the development of standards for applying the harmless error rule” (emphasis in original; internal quotation marks omitted)), overruled on other grounds by State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008). In 2006, this court in Sawyer purported to resolve these inconsistencies, settling on one single formulation of the standard: “[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 omit- ted.) State v. Sawyer, supra, 357. Notwithstanding Sawyer, however, we have continued to use different language to articulate the governing standard. See, e.g., State v. Adam P., supra, 351 Conn. 233 (whether “it is not just reasonably possible, but reasonably probable—meaning more probable than not—that the instructional error misled the jury”); State v. Fisher, 342 Conn. 239, 259, 269 A.3d 104 (2022) (whether “the impropriety was so prejudicial as to undermine confidence in the fairness of the verdict” (internal quotation marks omitted)); State v. Fernando V., supra, 331 Conn. 223 (whether impropriety “could have made a substantial impact on the jury”). which allegedly occurred in 2008 or 2009 in the basement of the complainant’s childhood home in Stamford, and the complainant’s 2018 disclosure. From start to finish, the issue of delayed disclosure was central to how both parties litigated the case.

Long before trial began, the prosecutor gave notice that she intended to call a delayed disclosure expert. On the first day of trial, the prosecutor closed out her direct examination by asking the complainant, “[w]hy didn’t you tell anyone sooner?” Defense counsel picked up right where the prosecutor left off, trying to pin down the complainant’s answer to one question: “Why did you not tell it to anybody else, ever?”

The complainant gave what the jury could have under- stood to be differing answers to this key question. In her initial disclosures, the complainant explained that she did not report the sexual abuse until a school reading assignment triggered flashbacks, resurfacing long buried memories. She repeated this explanation at trial, testify- ing that the assignment had “triggered . . . memories that [she] kept buried inside [her]” and that, prior to February 2018, she had not thought about what happened to her. The complainant also testified that recollections of other incidents of abuse had come back to her in the years since her initial disclosure, although she had not mentioned them to anyone prior to trial. Her exact words were, “all the memories keep coming back, slowly.”

In response to further questions regarding the delayed disclosure issue, however, the complainant gave what the jury could have understood to be a different set of explanations for not disclosing the alleged abuse sooner. She said that she “never forgot” about the sexual abuse but that she “was constantly told not to” disclose, and that she was afraid to do so, in light of the negative reac- tions two former schoolmates had when she told them about the abuse. The complainant testified that she “was in constant fear” and that she had been told by unnamed parties that, if she disclosed the abuse, she “would have to talk about it” in court. The complainant then offered a third set of explanations, stating that the defendant had “kept bribing [her] by buying [her] stuff . . . to keep [her] quiet.” When defense counsel asked her about these apparent contradictions, the complainant did not attempt to reconcile her various explanations. She simply agreed with counsel’s statement that “having flashbacks” is “different from being reminded to tell your story . . . .” Following this line of questioning, defense counsel began to cross-examine the complainant about other alleged changes and inconsistencies in her story.5 One aspect of the complainant’s testimony highlighted by the defendant is the pronounced discrepancy between the complainant’s answers to the prosecutor’s questions and her answers to defense counsel’s questions, especially with respect to matters of memory. On direct examina- tion, the complainant was able to recall details of events that had transpired approximately fifteen years prior, when she was about five or six years old. For example, when describing the 2008/2009 basement incident, the complainant recalled giving the defendant a hug, where he was in the laundry process, the specific small talk they engaged in, and the details of her mother’s work schedule. By contrast, her response to dozens of defense counsel’s questions was some version of “I don’t remem- ber.” Of particular note, when questioned about impor- tant ways in which her trial testimony diverged from the statements she had made during her initial forensic interview,6 the complainant was unable to recall what she had said in that interview, even though she had recently reviewed it in preparation for trial. During both cross- examination and recross-examination, defense counsel expressly related these potential credibility issues with the complainant’s testimony to her claim that she had recovered buried memories of sexual abuse.

This case is like other delayed disclosure cases, in that the jury had to resolve whether the lengthy delay in reporting reflected a typical child’s response to sexual trauma or a recent fabrication. But it is also unique, in that the reasons for, and the nature of, the delay itself became a credibility issue. The defense’s primary chal- lenges to the complainant’s allegations—her inconsis- tencies, her memory lapses, her alleged animus toward the defendant—all played out in tandem with respect to her differing accounts as to whether she had delayed disclosing because the memories of sexual abuse were repressed or because of various carrots and sticks.

The delayed disclosure issue remained front and center when the prosecutor questioned the other state wit- nesses. The complainant’s oldest sister, N, testified on direct examination that she had asked the complainant several times why she “hadn’t said anything before, and [the complainant] responded that she did not want to leave her sisters . . . .” When defense counsel raised a hearsay objection, which the trial court overruled, the prosecutor countered that the testimony was relevant to the complainant’s state of mind because “it’s come out several times about the delayed disclosure and the fact that she did not really disclose until 2018.” Defense counsel likewise pursued the delayed disclosure issue early in his cross-examination of N.

Defense counsel’s cross-examination of the state’s next witness, Leslie Lugo, a police sergeant, focused almost entirely on Lugo’s failure to pursue lines of inquiry that might have verified or discredited the complain- ant’s claim that a schoolbook had triggered the recovery of her memories of sexual abuse. Once again, defense counsel expressly linked this line of attack—potential shortcomings in the state’s investigation—to the com- plainant’s delayed disclosure of the alleged sexual abuse.7 The prosecutor also called the teacher to whom the complainant initially disclosed, Kaylin English, as a witness to establish, among other things, that the com- plainant was fearful of what would happen to her family when she revealed the sexual abuse, thus reinforcing an explanation for the delayed disclosure. Defense counsel objected unsuccessfully to that testimony, arguing that “it would be highly prejudicial for the jury . . . to hear that and think, ‘oh, that must be why [the complainant] didn’t tell it before’ . . . .”

The state’s last witness was Monica Madigan, an expert on the delayed disclosure of child sexual abuse. Madigan testified at length about typical child sexual abuse dis- closure dynamics, connecting common patterns with the details of the complainant’s story and the stated ratio- nales for her delay in reporting the alleged sexual abuse. Needless to say, Madigan’s testimony centered around delayed disclosure and allowed the state to fully present its perspective on that issue to the jury. Defense counsel cross-examined Madigan about the scientific literature on delayed disclosure and the recovery of repressed memo- ries. Madigan acknowledged on cross-examination that inconsistencies in successive delayed disclosures, such as those that characterized the complainant’s various accusations, “could be” “an indication of a false allega- tion . . . .”

After the state rested, defense counsel moved for a judgment of acquittal on the sexual assault and risk of injury to a child counts. See footnote 1 of the major- ity opinion and accompanying text. The prosecutor responded that both English’s and Madigan’s testimony “goes toward the credibility of the [complainant] . . . [and] puts the [complainant’s] testimony into context.” In short, both the prosecutor and defense counsel high- lighted the issue of the complainant’s delayed disclosure of her allegations with respect to all but one of the state’s witnesses. In addition, the defense expressly tied its other lines of attack—the complainant’s inconsistent testimony, her flawed memory, the inadequate police investigation—to the delayed disclosure and the com- plainant’s inconsistent and shifting rationales therefor. Indeed, the prosecutor repeatedly acknowledged that the complainant’s delayed disclosure was central to the case. In seeking the trial court’s leave to ask Madigan whether a school assignment relating to sexual assault could lead to delayed disclosure, the prosecutor noted that defense counsel “ha[d] made quite a [big] deal about the word ‘trigger’ and repressed memories and things like that.” The prosecutor argued that “the reasons why a child may not disclose earlier . . . would certainly be rel- evant to the jury’s determination and assessment of the credibility of the [complainant].” In response to defense counsel’s objection to English’s testimony, the prosecu- tor elaborated: “[T]he issue of why [the complainant] did not disclose earlier and her current state of mind at that time . . . is relevant . . . to the jury’s determination of the facts in this case, the credibility of the witnesses, and the circumstances surrounding disclosure. . . . [T]he jury has to assess the [complainant’s] credibility; that is essentially what this entire case is about. And . . . the fact that she maintains that fear even after she disclosed . . . goes directly to her credibility in this . . . case, par- ticularly when that gets placed in the context of what . . . Madigan is going to educate the jury about . . . .”

Ultimately, the prosecutor argued, “it can be probative of whatever the jury wants it to be probative of.”

After the prosecutor repeatedly sought to introduce evidence suggesting that the complainant’s testimony was consistent with a delayed disclosure of a bona fide childhood sexual assault, she requested a jury instruction that the jury could not consider the delay in evaluating the complainant’s credibility. Defense counsel “strenu- ously” objected, arguing that the injustice of making the defendant defend against decade-old allegations would be compounded if the jury were allowed to consider only the state’s perspective on “how the delay could bear on the veracity of the allegation[s].” Counsel summarized the defense’s objection to the erroneous instruction in six words: “The delay is the whole defense.”8 (Emphasis added.) The prosecutor’s response: “This has always been a case about delayed disclosure.” (Emphasis added.) Although defense counsel believed that the trial court’s instruction effectively precluded him from arguing the delayed disclosure issue to the jury, it was an important focus of closing arguments. The prosecutor, having just persuaded the trial court to issue the erroneous instruc- tion, repeatedly argued that the complainant’s credibility was bolstered by the parallels between her account of the alleged sexual abuse and typical delayed disclosure pat- terns in bona fide child sexual assaults. And, although defense counsel never used the phrase “delayed disclo- sure,” he argued at some length that the complainant’s conflicting explanations for the delay exemplified her lack of credibility, her failure to testify truthfully, and the inadequacy of the state’s investigation. For these reasons, I cannot agree with the majority’s conclusion that the issue of delayed disclosure was not central to this case. See part II C of the majority opinion.

B

The next consideration in the harmlessness analysis is the strength of the state’s case against the defendant, which, the majority acknowledges, was “not particularly strong.” Id. I agree with that assessment. As I will dis- cuss, the evidence here, although sufficient to persuade the jury of the defendant’s guilt, was on par with that in other cases where we have found the state’s case to be too weak to survive harmless error analysis. See part II D of this opinion.

As I discussed, the state’s case against the defendant was founded almost entirely on the complainant’s tes- timony. This court has characterized such cases as espe- cially prone to harmful error, given that any additional reason to question the complainant’s veracity potentially could have allowed in some reasonable doubt. See, e.g., State v. Marcello E., 351 Conn. 345, 367, 330 A.3d 577 (2025) (“[c]redibility contest[s] characterized by equivo- cal evidence . . . [are] a category of cases that [are] far more prone to harmful error” (internal quotation marks omitted)); accord State v. Favoccia, supra, 306 Conn. 816–17; see also, e.g., State v. Sawyer, 279 Conn. 331, 359, 904 A.2d 101 (2006) (“a sexual abuse case lacking physical evidence is not particularly strong, especially when the victim is a child” (internal quotation marks omitted)), overruled on other grounds by State v. DeJe- sus, 288 Conn. 418, 953 A.2d 45 (2008).

There were aspects of that testimony that a jury rea- sonably could have viewed with skepticism,9 and, as the defendant catalogs in his briefs to this court, the defense was able to identify and highlight various inconsisten- cies in the complainant’s accounts, as well as significant memory lapses. Those inconsistencies and lapses extended to key issues in the case, ranging from the reasons for, and the nature of, the delayed disclosure to the types of sexual contact alleged.

When the only direct evidence of guilt is a complain- ant’s long delayed accusation, constancy of accusation witnesses can help bolster the credibility of the accusa- tion. See, e.g., State v. Troupe, supra, 237 Conn. 296–98, 302–304. In this case, however, the prosecutor’s attempt to elicit constancy testimony arguably backfired. The complainant could not recall the last names of the two former best friends in whom she allegedly had confided, and the jury was left to wonder why the state was unable to locate either classmate from school records in order to secure their corroborative testimony.

The same can be said of uncharged misconduct. A com- plainant’s credibility can be substantially bolstered by independent testimony that the defendant abused other individuals in a manner similar to that charged. See, e.g., State v. DeJesus, supra, 288 Conn. 463, 468–70. Here, however, none of the defendant’s other daughters or stepdaughters testified that he had sexually abused them, and there was no independent evidence of uncharged misconduct. The only such allegations were from the complainant’s own account of a third incident that alleg- edly took place in Bridgeport in 2008 or 2009. But that account also evolved over time, and important, verifiable details of the complainant’s story were directly rebutted by several defense witnesses.

In fact, the only corroborating evidence that the pros- ecutor offered10 was testimony from N that, on the day assaulted the complainant in the front seat of a parked pickup truck while her youngest sister, M, then approximately nine or ten years old, sat in the backseat, with a clear view of the front. of the basement incident, the complainant had stated that she and the defendant had been playing a game in which she was “his girlfriend.” This testimony certainly was consistent with the complainant’s story and could have bolstered her credibility.11 Its value was limited, however, in that any support for the complainant’s alle- gations of sexual abuse was indirect, at best. See, e.g., State v. Fernando V., supra, 331 Conn. 215–16 and n.6 (state’s case against defendant was not strong, despite state’s presentation of comparable, corroborating tes- timony from complainant’s brother); see also, e.g., id., 234–36 and n.7 (Robinson, C. J., dissenting) (discuss- ing testimony); cf. State v. William G., 232 Conn. App. 317, 334, 335 A.3d 511 (2025) (testimony of propensity witnesses did not specifically corroborate complainant’s allegations).

A final consideration is the fact that the defendant voluntarily took the stand, testifying in his own defense and unequivocally denying the complainant’s allegations of sexual abuse. Although the defendant also was far from an ideal witness, he was able to present the jury with a reasonable explanation of why the complainant might have fabricated the allegations in the wake of their heated dispute over money that he took from her to reimburse himself for some of the thousands of dol- lars that he spent on her quinceañera,12 after which she became very angry and never spoke to him again.

C

A third relevant consideration is the charge itself: whether, “taken as a whole, the charge adequately guided the jury to a correct verdict.” (Internal quotation marks omitted.) State v. Adam P., supra, 351 Conn. 230. In this case, the delayed disclosure instruction was an incorrect corroborates her account of the underlying sexual assault allegations. See part II C of the majority opinion. statement of the law, and this court must presume that the jury followed the trial court’s erroneous instruction. See, e.g., State v. Carlos G., 354 Conn. 21, 28, 349 A.3d 1 (2026). The state offers two theories as to why, despite this presumption, the jury was not misled in the present case, neither of which I find persuasive.

First, the state argues that the jury was properly instructed as to other legal matters: the burden of proof, the presumption of innocence, evaluation of expert tes- timony, and the jury’s role as the ultimate arbiter of credibility. That is all true but largely beside the point. The defendant does not dispute that the trial court’s instructions accurately set forth much of the relevant law, including the law addressing the jury’s role in assess- ing witness credibility. Rather, the defendant contends that the erroneous delayed disclosure instruction made it impossible for the jurors to properly and thoroughly carry out that role. They were precluded from considering one of the primary factors that bore on the credibility assessment, one that, if properly considered alongside the others, likely could have given rise to reasonable doubt.13 Second, the state argues that the delayed disclosure instruction was not harmful because, rather than com- pletely foreclosing jurors from considering the complain- ant’s delay in disclosing the alleged sexual abuse, the trial court instructed that they could not consider the “mere fact” of delay. The gravamen of this argument is not entirely clear, at least to me. To the extent that the argument is simply that the delayed disclosure instruc- tion did not otherwise preclude the jury from considering the complainant’s credibility, separate and apart from delay related issues, that is true enough but, again, fails to address the defendant’s claim.

To the extent that the state’s claim is that the “mere fact” language barred jurors from considering the fact of the delay per se but permitted them to consider the reasons for the delay, this court recently rejected that very argument in Adam P. (Emphasis added.) See State v. Adam P., supra, 351 Conn. 225 (“we do not believe that the jury would understand that the reasons why a victim might delay reporting sexual assault are neces- sarily separate from the delay itself based on the instruc- tions provided, given that we have trouble discerning or articulating this distinction convincingly ourselves”). Although the language of the erroneous instruction in Adam P. was different from the one in the present case; see id., 219; the same reasoning applies.

The majority construes the state’s second argument more ambitiously to mean that, under the challenged instruction, jurors could not consider delay in a vacuum, but they could consider it in the context of the broader case. See part II C of the majority opinion. That argument should be rejected for the same reasons that we rejected the legalistic distinction that the state proposed in Adam P. I do not know what it means for a jury, deliberating over all of the evidence in a criminal case, to consider delay in context but not in isolation, and, if I cannot make sense of it, presumably the jury could not either. If we take the instructional language seriously, then the mere fact that the complainant reported the alleged abuse after some delay, standing alone, becomes poten- tially relevant only in conjunction with other consid- erations, such as the length of the delay, the possible reasons for the delay, the background assumption that bona fide victims of sexual assault will not delay overlong in reporting such crimes, and valid doubts as to the per- sistence and reliability of memory over time. Are those things that the jury was permitted to consider under the trial court’s delayed disclosure instruction? If yes, then it was a superfluous instruction, and it is difficult to understand why the parties debated it at such length and with such urgency.14 If no, if all of the key reasons why jurors may be dubious of lengthy reporting delays were off-limits, then the inclusion of the word “mere” gives me far less solace than it does the majority. More- over, it is unclear to me how we are to ascertain which of the many delay-adjacent factors the jury would have understood to still be fair game under the trial court’s modified instruction.

D

Tying all of this together, I believe that this case is much closer to child sexual assault cases such as Fernando V. and William G., in which this court and the Appellate Court, respectively, found reversible error, than cases such as Adam P., in which we concluded that the error was harmless. In State v. Fernando V., supra, 331 Conn. 201, the state’s delayed disclosure expert had testified as to the typical characteristics exhibited by victims of child sexual abuse following disclosure; see id., 205–206; and the issue was whether the trial court’s improper exclusion of a defense witness—who would have testified that the complainant did not exhibit those characteristics—was reversible error. See id., 203, 206–209. In that case, as here, the only evidence of guilt was the complainant’s testimony. See id., 215–16. That testimony suffered from various inconsistencies and contradictions; see id., 231 and n.5 (Robinson, C. J., dissenting); but found circumstantial corroboration in the testimony of a sib- ling, who twice saw the defendant and the complainant acting in ways that suggested that they had been sexually engaged. See id., 215–16 and n.6; see also id., 234–36 and n.7 (Robinson, C. J., dissenting). In other ways, the state’s case in Fernando V. was much stronger. There was strong constancy of accusation evidence, insofar as the complainant had disclosed the sexual abuse to her mother on several occasions before she finally was believed; see id., 204–205; and the defendant did not take the stand to present an alternative narrative. Nonetheless, we reversed the conviction, holding that “[i]t cannot be harmless error to remove from the fact finder the very tools by which to make a credibility determination” and that, when “credibility is an issue and, thus, the jury’s assessment of who is telling the truth is critical, an error affecting the jury’s ability to assess a [witness’] cred- ibility is not harmless error.” (Internal quotation marks omitted.) Id., 223–24.

In State v. William G., supra, 232 Conn. App. 317, the Appellate Court likewise concluded that the trial court’s erroneous delayed disclosure instruction constituted reversible error. See id., 318, 325, 341. The complaining witness in that case had delayed disclosing the sexual abuse for only one month or so; see id., 319–21; and the state’s case was stronger than in this case, insofar as two other girls testified as propensity witnesses that the defendant had engaged in similar, inappropriate behav- ior and touching. See id., 323, 334. Nevertheless, the error was held to be harmful because the complainant’s credibility was the primary issue in the case and the ques- tion of delay was closely intertwined with the defense’s focus on the complainant’s inconsistent testimony and its contention that she had fabricated her allegations of sexual abuse. See id., 331–32, 334–35.

By contrast, in State v. Adam P., supra, 351 Conn. 213, the relevant factors pointed much more clearly in the direction of harmless error. We characterized the state’s case there as “strong,” as there were two complaining witnesses who “testified extensively, and largely consistently about the defendant’s actions . . . .”

Id., 240. The complainants’ independent forensic inter- views in Adam P. were specific and consistent, and other witnesses corroborated important details. See id., 240– 41. The defendant did not testify, and the defense’s theory of the case rested heavily on his insufficient opportunity to sexually abuse the complainants and the lack of physical evidence to support the accusations. See id., 236. We characterized the defense’s reliance on the complainants’ delayed reporting as “minimal”; id.; and the parties made only one brief reference to delayed disclosure during closing arguments. Id., 239. Consider- ing the entire record, then, the rationales that animated our decision in Adam P. are largely absent here, and I see no meaningful basis for distinguishing the present case from Fernando V. and William G.

Accordingly, I concur in part and dissent in part.

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.

All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.

The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ STATE OF CONNECTICUT v. JOSE T.* (SC 21021)

Mullins, C. J., and McDonald, D’Auria, Ecker, Alexander, Dannehy and Bright, Js.** Syllabus Convicted of, among other crimes, sexual assault in the first degree, sexual assault in the fourth degree, and risk of injury to a child in connection with the sexual abuse of the minor victim, the defendant appealed to this court. During and after the defendant’s romantic relationship with the victim’s mother, the defendant maintained a father-daughter like relationship with the victim, who was not the defendant’s biological daughter. Around the victim’s fifteenth birthday, the defendant hosted a party for her. Eight days later, while the victim was in a class in her freshman year of high school, she had a strong emotional reaction while reading aloud an article about a girl who decided to disclose that she had been sexually abused. Shortly thereafter, the victim disclosed to her teacher that the defendant had sexually abused her. Subsequently, during a video-recorded forensic interview, the victim recounted three instances of sexual abuse by the defendant, two of which occurred when she was about five years old, and the other when she was about twelve years old. At trial, the defense sought to establish that the alleged sexual abuse did not occur and that the victim had been motivated to fabricate her allegations against him shortly after her fifteenth birthday because she was angry with him for taking certain cash gifts that she had received at her party. During cross-examination, defense counsel questioned the victim regarding the party and her disclosure to her teacher, and he challenged the victim’s credibility by impeaching her testimony with prior inconsistent statements from the video-recorded interview, which had been admitted into evidence over defense counsel’s objection. Following the presentation of evidence and closing arguments, the prosecutor, relying on this court’s decision in State v. Daniel W. E. (322 Conn. 593), which was the governing law at the time of the defendant’s trial, requested that the court instruct the jurors that they could not consider any delay in the victim’s disclosure of the sexual abuse when evaluating her credibility. Over defense counsel’s objection, the court gave a modified version of the standard charge prescribed *

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 victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e. Moreover, in accordance with federal law; see 18 U.S.C. §2265 (d) (3) (2024); we decline to identify any person protected or sought to be protected under a protection order, protective order, or a restraining order that was issued or applied for, or others through whom that per- son’s identity may be ascertained. by Daniel W. E. and instructed the jurors that, to the extent that the victim delayed in reporting the sexual abuse, they could not consider “the mere fact of that delay” in evaluating her credibility. On appeal, the defendant claimed, inter alia, that the trial court’s delayed disclosure instruction was improper and violated his constitutional right to present a closing argument. Held: Although the trial court’s delayed disclosure instruction was improper under Daniel W. E., the error was harmless, as it was not reasonably prob- able that the improper instruction misled the jury in reaching its verdict, and, accordingly, the defendant was not entitled to a new trial on the basis of that instructional error.

In Daniel W. E., this court authorized trial courts to instruct juries that, to the extent that a sexual assault victim has delayed in reporting sexual abuse, the delay should not be considered by the jury in evaluating the victim’s cred- ibility, but only when the defense has not challenged the victim’s credibility on the basis of the victim’s delayed disclosure.

In the present case, it was improper for the trial court to give the modified Daniel W. E. instruction because it was undisputed that defense counsel challenged the victim’s credibility in part on the basis of the victim’s delayed disclosure, specifically, that the victim did not contemporaneously report her allegations of sexual abuse because they were a recent fabrication arising from her dispute with the defendant over his taking of the money that she had received at her party.

This court rejected the defendant’s claim that the trial court’s instructional impropriety was constitutional in nature insofar as the trial court’s modified Daniel W. E. instruction infringed on his rights to due process, to present a defense, and to challenge the state’s evidence, that claim having been inconsistent with this court’s analysis in State v. Adam P. (351 Conn. 213), which overruled Daniel W. E. and held that the type of delayed disclosure instruction previously authorized by Daniel W. E., although improper, does not rise to the level of a constitutional violation.

Moreover, to the extent the defendant claimed that the trial court’s error in giving the modified Daniel W. E. instruction was constitutional in nature because it deprived him of his right to present a defense, that claim was unavailing because the instruction did not exclude defense evidence, prevent cross-examination, or foreclose the defense from otherwise challenging the victim’s credibility or advancing the defendant’s theory that the victim had fabricated her allegations of sexual abuse, and the jury remained free to disbelieve the victim’s testimony for any reason apart from “the mere fact” that she had delayed in disclosing the sexual abuse.

The defendant failed to demonstrate that it was reasonably probable that the modified Daniel W. E. instruction misled the jury in reaching its verdict in light of the language of the particular instruction given, the adequacy of the jury instructions as a whole, the defendant’s broader theory that the victim had fabricated her allegations, and the other evidence presented at trial.

With respect to the language of the modified Daniel W. E. instruction and the jury instructions as a whole, the jury would not have understood the challenged instruction to preclude it from considering the victim’s credibil- ity more generally or defense counsel’s specific argument that the victim’s allegations were a recent fabrication, especially when the instructions, as a whole, emphasized the jury’s exclusive role in evaluating witness credibility, related the state’s burden of proving each element of the crimes charged beyond a reasonable doubt, and directed the jurors to consider inconsisten- cies and omissions in the victim’s prior statements.

Furthermore, unlike the standard Daniel W. E. charge, which this court found to be improper in Adam P., the modified Daniel W. E. instruction given in the present case did not categorically preclude the jury from considering the victim’s delayed disclosure but, rather, addressed certain concerns raised in Adam P. by expressly conveying to the jury the distinction between the fact of the delay and the reasons for, or circumstances surrounding, the delayed disclosure and by prohibiting only the inference that the victim was less credible merely because she did not promptly disclose the sexual abuse.

With respect to the evidence presented, it was clear that the defense theory did not depend on persuading the jury that the victim was untruthful merely because she delayed in reporting the sexual abuse, but, rather, defense counsel argued that the victim had fabricated her allegations because she was angry with him for taking her money.

In addition, although the state’s case was not particularly strong, insofar as there was no physical or forensic evidence corroborating the sexual abuse, there was other corroborating testimony in the record, and the relative weakness of the state’s case did not render it reasonably probable that the improper instruction infected the jury’s verdict.

The defendant could not prevail on his claim that the trial court had violated his constitutional right to present a closing argument by giving the chal- lenged instruction.

Although the trial court notified the parties, prior to closing argument, that it intended to provide the modified Daniel W. E. instruction in its final jury charge, it did not restrict the permissible scope of summation or affirmatively preclude defense counsel from arguing that the victim’s delayed disclosure undermined her credibility and supported the defense theory that she had fabricated the allegations, and, therefore, the present case did not involve interference by the trial court that absolutely precluded defense counsel from presenting the defendant’s theory of defense.

Even if this court assumed that the challenged instruction effectively restricted defense counsel from relying on “the mere fact of [the victim’s] delay” during summation, counsel was not deprived of the opportunity to present the defendant’s fabrication theory to the jury, as counsel repeatedly addressed the timing and evolution of the victim’s disclosures during clos- ing argument and challenged her account of when and how she remembered the sexual abuse.

Moreover, the challenged instruction restricted only the jurors’ ability to draw a permissible credibility inference arising solely from the timing of delayed disclosure, and it did not preclude defense counsel from arguing that the circumstances surrounding the disclosure demonstrated that the victim had lied about her allegations or otherwise lacked credibility.

The defendant’s claim that the trial court improperly admitted the video recording of the victim’s forensic interview was moot, as the defendant failed to challenge all of the independent bases for the trial court’s decision to admit the recording.

The record demonstrated that the trial court admitted the recording under the medical diagnosis or treatment exception to the hearsay rule, as a prior consistent statement, and under the rule of completeness, but, on appeal, the defendant challenged only the trial court’s conclusions that the recording was admissible under the medical diagnosis or treatment hearsay exception and as a prior consistent statement, and, because there was an independent ground for the trial court’s admission of the recording that the defendant did not challenge on appeal, namely, that the recording could be admitted under the rule of completeness, this court could not grant the defendant any practical relief in connection with his evidentiary claim. (Three justices concurring in part and dissenting in part and two justices dissenting in part in two separate opinions) Argued April 6—officially released September 29, 2026 Procedural History Substitute information charging the defendant with the crimes of sexual assault in the first degree, sexual assault in the fourth degree, risk of injury to a child, and failure to appear in the first degree, brought to the Superior Court in the judicial district of Stamford-Nor- walk and tried to the jury before Blawie, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

Erica A. Barber, assistant public defender, with whom, on the brief, were Kayla Kelly and Isabelle Kirschbaum, law student interns, for the appellant (defendant).

Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Paul J. Ferencek, state’s attorney, and Margaret Moscati and Elizabeth K.

Moran, assistant state’s attorneys, for the appellee (state).

Opinion BRIGHT, J. The defendant, Jose T., appeals directly to this court from his conviction of one count of sexual assault in the first degree in violation of General Stat- utes § 53a-70 (a) (2), one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).1 His prin- cipal claim on appeal is that the trial court improperly instructed the jury that, to the extent the victim delayed in reporting the alleged sexual abuse, “the mere fact of that delay” should not be considered in evaluating her credibility. The defendant contends that the instruction was improper under State v. Daniel W. E., 322 Conn. 593, 629, 142 A.3d 265 (2016), and State v. Adam P., 351 Conn. 213, 220, 226, 330 A.3d 73 (2025), which subsequently overruled Daniel W. E., because delayed disclosure was central to his theory that the victim had fabricated the allegations and because he challenged the victim’s credibility on that basis. The defendant further contends that the challenged instruction violated his constitutional right to present a closing argument. He separately claims that the trial court erred in admitting into evidence the video recording of the victim’s forensic interview.

We conclude that, because the defendant challenged the victim’s credibility in part on the basis of her delayed disclosure, it was improper under State v. Daniel W. E., supra, 322 Conn. 629, for the trial court to give the challenged instruction. We further conclude, however, that the error was not of constitutional magnitude and that it is not reasonably probable that the erroneous instruction misled the jury in reaching its verdict. Addi- tionally, the improper instruction did not violate the defendant’s right to present a closing argument. We decline to review the merits of the defendant’s third claim regarding the admissibility of the forensic interview because the defendant’s failure to challenge all bases on which the court admitted the video recording of the interview renders the claim moot. We therefore affirm the judgment of the trial court.

I

The record reflects the following relevant facts, which the jury reasonably could have found, and procedural history. The defendant emigrated from Honduras to the United States in 1998 and settled in Stamford. In 2002, E, who was pregnant with the victim at the time, also emigrated from Honduras to the United States and began a romantic relationship with the defendant. Although the defendant is not the victim’s biological father, he signed the victim’s birth certificate and treated her as his daughter. Following the end of the defendant’s relationship with E in 2006 or 2007, the victim and her sisters continued to maintain a close relationship with the defendant. In 2009, the defendant began dating Maria Diaz and subsequently moved in with her. Approximately every other weekend, the victim and her younger sister, M, would stay at the residence that Diaz shared with the defendant.

When the victim was a freshman in high school in 2017 or 2018, she had a strong emotional reaction while read- ing aloud to her class a book about a girl who decided to disclose that she had been sexually abused. The victim abruptly ran out of the classroom and subsequently dis- closed to her social studies teacher, Kaylin English, that “her stepfather,” the defendant, had sexually abused her. English made an appointment for the victim to meet with the school psychologist and contacted the Depart- ment of Children and Families to report the victim’s disclosure. Either that day or the following day, after the victim had told her mother and sisters about the sexual abuse, her family took her to the police station, and the victim reported to the police that the defendant had sexually abused her. Approximately one week later, Kim Sauter, a clinical social worker at the Child Guid- ance Center of Southern CT in Stamford, conducted a forensic interview of the victim.2 During that interview, the victim recounted three specific instances of sexual abuse by the defendant, two of which had occurred in Stamford. After the Stamford police conducted an inves- tigation, the defendant was arrested and charged with one count of sexual assault in the first degree, one count of sexual assault in the fourth degree, and one count of risk of injury to a child. See footnote 1 of this opinion and accompanying text.

At trial, the victim testified that, when she was around five years old, the defendant began sexually abusing her. The victim testified about three different, specific inci- dents of sexual abuse, one that occurred in Bridgeport and two that occurred in Stamford.3 The first instance occurred in 2008 or 2009, when the victim was visiting the defendant in Bridgeport. The victim testified that, at the time, the defendant and his brothers participated in local soccer games, and Diaz would often prepare food at home to sell at those events. During one such game, Diaz ran out of food, and the defendant and the victim drove back to the residence the defendant shared with Diaz to retrieve more. Once inside the home, while the victim was seated on the defendant’s bed, the defendant began to touch her breast and buttocks under her clothes. The victim then felt something penetrate her anally, causing a discomfort she had “never felt before.” Following this incident, the victim felt pain in her rectal area and found it difficult to sit down. She disclosed the incident to an elementary school classmate named Maya, but, when Maya “freaked out,” the victim told her that it was a joke because the victim feared that others might react similarly if they learned what had occurred.

The victim testified about a second incident that occurred around the same time as the Bridgeport inci- dent, when the victim resided in Stamford with her mother and two of her sisters, N and M. Although the defendant had been residing with Diaz in Bridgeport, he stayed at the Stamford residence for a short period of time in either 2008 or 2009. The victim testified that, one day during the defendant’s stay at the Stamford resi- dence, while E was at work and N was upstairs cooking, the victim went into the basement, where the defendant was doing his laundry. After the victim hugged him, the defendant picked her up and placed her on top of the dryer. When the defendant finished transferring his clothes into the dryer, he began touching the victim’s breast. The defendant then put his fingers inside the vic- tim’s vagina and rectum. While this incident was occur- ring, N began looking for the victim. Before N reached the bottom of the basement stairs, the defendant, having heard her approaching, moved the victim to a nearby bed and instructed her to “be quiet and not to move . . . .” This incident was the basis for the first degree sexual assault and risk of injury to a child charges.

The third incident occurred in either 2015 or early 2016, when the victim was approximately twelve years old. The victim testified that, while the victim and M were visiting the defendant in Stamford, the defendant stopped to buy them ice cream before going to the beach. The defendant parked in a secluded area of Cummings Park, and the three of them ate their ice cream inside the defendant’s truck; the victim was sitting in the front passenger seat, and M was sitting in the backseat watch- ing videos on the defendant’s cell phone. The defendant then took the victim’s hand and placed it inside his pants and underwear. The victim felt something “squishy” at first, but, as the defendant made her move her hand up and down, she felt something “hard . . . .” Thereafter, the victim noticed something “sticky” on her hands that was not ice cream, and the defendant quickly wiped her hand with paper towels. The defendant then instructed the victim not to tell anyone what had occurred, stating that he would go to jail and that M would be hurt if the victim disclosed the incident. Nevertheless, the victim told a friend from middle school named DeAndre4 about the incident at Cummings Park, as well as the incident at the Stamford residence. The incident at Cummings Park was the basis for the sexual assault in the fourth degree charge.

The defendant’s theory of defense at trial was that no sexual abuse had occurred and that the victim had fabricated the allegations. In support of that theory, defense counsel challenged the victim’s credibility by emphasizing that she was motivated to fabricate her allegations by a dispute she and the defendant had over money shortly before she made her disclosure to English; contradictions, inconsistencies, and omissions between the victim’s forensic interview and trial testimony; the victim’s delay in disclosing the abuse; the absence of physical evidence corroborating the victim’s allegations; the implausibility of aspects of the victim’s testimony; and deficiencies in the police investigation.

At trial, both parties presented multiple witnesses. In addition to the victim, the state called N, English, and Sergeant Leslie Lugo, who investigated the charged crimes. The state also presented expert testimony from Monica Madigan, a licensed clinical social worker and forensic interviewer at the Yale Child Abuse Clinic. Madigan testified generally regarding the dynamics of child sexual abuse disclosure, including delayed and incremental disclosures, barriers to disclosure, and fac- tors that may affect a child’s willingness or ability to disclose abuse. The defense called the defendant, Diaz, the defendant’s brother, E, several members of Diaz’ family, and Sauter, who testified about the victim’s forensic interview.

Following the close of evidence and the parties’ clos- ing arguments, the trial court instructed the jury. Over defense counsel’s objection, the court instructed the jury that “[t]here was evidence in this case [that] the [victim] delayed in making an official report of the alleged sexual assault by the defendant. There are many reasons why sexual assault victims may delay in officially reporting the offense, and, to the extent that [the victim] delayed in reporting the alleged offenses here, the mere fact of that delay should not be considered by you in evaluating her credibility.” (Emphasis added.)

The jury found the defendant guilty on all counts, and the trial court rendered judgment, imposing what the court described as a total effective sentence of forty years of imprisonment, execution suspended after twenty-five years, followed by thirty-five years of probation.5 The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3).

The defendant raises three claims on appeal. He con- tends that (1) the trial court’s provision of the delayed disclosure instruction was erroneous and requires a new trial, (2) the erroneous instruction improperly infringed on his constitutional right to present a closing argument, and (3) the trial court improperly admitted the video recording of the victim’s forensic interview.

II

The defendant first claims that, because the victim’s delay in reporting the sexual abuse was central to his theory that she had fabricated the allegations against him, the trial court’s instruction preventing the jury from considering evidence of delay in assessing the vic- tim’s credibility was erroneous and requires a new trial. We agree with the defendant that the delayed disclosure instruction was erroneous under State v. Daniel W. E., supra, 322 Conn. 629. We nevertheless conclude that the error was not of constitutional magnitude and that it is not reasonably probable that the erroneous instruc- tion misled the jury. Accordingly, the defendant is not entitled to a new trial.

“We exercise plenary review over a challenge to jury instructions because it presents a question of law.” State v. Adam P., supra, 351 Conn. 230. The record reveals the following additional relevant facts and procedural history.

Relying on this court’s decision in Daniel W. E., the prosecutor requested that the trial court instruct the jury that it could not consider any delay in the victim’s disclosure when evaluating her credibility. Defense coun- sel repeatedly objected to the prosecutor’s request for a delayed disclosure instruction, both orally and in writing. In his November 16, 2023, written objection, defense counsel argued that the instruction was unnecessary in light of the general credibility charge and would improp- erly invade the province of the jury. He also argued that Accordingly, we do not consider whether the trial court intended to impose a total effective sentence of forty years of imprisonment or whether the aggregate of the individual sentences reflects a greater total effective sentence. We note, however, that, to the extent the parties disagree about the court’s intended disposition, motions for interpretation or clarification “are commonly considered by trial courts and are procedurally proper.” (Internal quotation marks omitted.) State v. Denya, 294 Conn. 516, 528, 986 A.2d 260 (2010). the instruction was inconsistent with the state’s presen- tation of expert testimony on delayed disclosure because, if delay did not potentially bear on credibility, there would have been no need for such expert testimony. At the charge conference on November 17, defense counsel again objected to the proposed delayed disclosure instruc- tion. Counsel reiterated his earlier concerns and further emphasized that delayed disclosure was central to the defense theory, arguing that instructing the jurors not to consider delay would effectively preclude the defense from arguing that the victim’s lengthy delay in reporting undermined the reliability of her allegations. The state responded that the instruction was supported by Daniel W. E. and related case law and was intended to prevent the jurors from assuming that a sexual assault victim who delays reporting is not credible.

After hearing the parties’ arguments, the trial court stated that it was inclined to give the instruction but proposed modifying the final sentence to read: “To the extent that [the victim] delayed in reporting the alleged offenses here, the mere fact of that delay, without more, should not be considered by you in evaluating her cred- ibility.” (Emphasis added.) Defense counsel expressed satisfaction with the added language, stating: “That makes sense to me . . . . That sounds like the proposi- tion [that the case law is] supposed to stand for.” The prosecutor objected to the modification, arguing that the language would allow the jury to consider the delay if it found other reasons to question the victim’s cred- ibility, which the prosecutor maintained was contrary to the purpose of the instruction. The court then stated that it would consider the matter over the weekend and later advise the parties about how it intended to proceed. Over the weekend, defense counsel filed a renewed writ- ten objection. In that filing, counsel argued that Daniel W. E. did not authorize the state’s requested instruction under the circumstances of this case because the delayed disclosure language arose in the constancy of accusa- tion context and applied only when the defense did not challenge the victim’s credibility on the basis of delayed reporting. Counsel emphasized that, in this case, delayed disclosure was a central feature of the defense and that the state had not presented any constancy witnesses. In the alternative, counsel requested that, if the court gave a delayed disclosure instruction, it include “language such as ‘delay, without more, should not be considered in evaluating the witness’ credibility.’ ” (Emphasis in original.)

When the charge conference resumed on November 20, 2023, the trial court explained that it had revised the instruction but “not as far as the defense was asking . . . .” The court declined to include the phrase “without more” but retained the rest of the modification, settling on the following language: “[T]o the extent that [the vic- tim] delayed in reporting the alleged offenses here, the mere fact of that delay should not be considered by you in evaluating [her] credibility.” (Emphasis added.) Defense counsel maintained his objection to the instruction, and the prosecutor withdrew his prior objection and asked that the instruction be given as written. Consistent with its ruling, the court instructed the jury as previously discussed in this opinion.

On appeal, the defendant challenges the propriety of the instruction as given and argues that he is entitled to a new trial.

A

We first consider whether the instruction was erro- neous. The defendant argues that the delayed disclo- sure instruction was improper pursuant to State v. Adam P., supra, 351 Conn. 213, which overruled State v. Daniel W. E., supra, 322 Conn. 593. The defen- dant further contends that, because defense coun- sel attacked the victim’s credibility on the basis of her delayed disclosure, the instruction was improper under Daniel W. E. itself because the delayed disclo- sure instruction “is not a standalone instruction and was not intended by the [court in] Daniel W. E. . . . to be given when the defense challenges the delay.” The state responds that the trial court’s modification of the Daniel W. E. charge was “ameliorative in nature” and addressed the concerns that this court articulated in Adam P. regarding the standard Daniel W. E. instruc- tion. The state further contends that the final charge, when examined as a whole, was adequate to guide the jury to a correct verdict and to avoid injustice. We agree with the defendant that it was improper for the court to give a delayed disclosure instruction in any form under the circumstances of this case.

In resolving the defendant’s claim, it is helpful to start with a discussion of the recent evolution of our law regarding how juries should be instructed regarding a complaining witness’ delay between when the alleged abuse occurred and when it was first reported. In sexual assault cases, our courts have long grappled with the significance of delayed disclosure and the extent to which such evidence properly bears on a complainant’s cred- ibility. Historically, these concerns arose in connection with the common-law constancy of accusation doctrine; that doctrine permitted “the state in a sexual assault case to offer constancy evidence, which generally included proof that the victim had disclosed the sexual assault to third parties prior to making a formal complaint to authorities,” in order “to negate the inference a fact finder might draw . . . that a complainant was fabricating her accusation if she failed to officially report the alleged sexual abuse promptly after the incident.” State v. Adam P., supra, 351 Conn. 221; see also State v. Troupe, 237 Conn. 284, 294–99, 677 A.2d 917 (1996). In Troupe, we undertook a comprehensive reexami- nation of the constancy of accusation doctrine and the assumptions underlying the admission of delayed dis- closure evidence in sexual assault cases. See State v. Troupe, supra, 237 Conn. 294–99. We traced the histori- cal origins of the doctrine to “the fresh complaint rule,” which itself “evolved as a response to the common-law requirement of hue and cry.” (Internal quotation marks omitted.) Id., 294. Under the common law, “[v]ictims of violent crimes were expected to cry out immediately and [to] alert their neighbors that they had been violently assaulted,” and courts later applied the same expectation “in rape cases . . . .” (Internal quotation marks omitted.) Id. We observed that courts historically assumed “that any normal woman would report a rape soon after its occurrence” and, therefore, treated a victim’s silence or delayed disclosure as suggesting that “no rape had occurred.” (Internal quotation marks omitted.) Id., 295. “These assumptions about how a normal woman should react to a sexual assault, coupled with the common-law rule requiring corroboration of the victim’s testimony in order to obtain a rape conviction, reflect the common law’s profound distrust of female complainants in rape cases.” (Internal quotation marks omitted.) Id. We further acknowledged in Troupe that a premise underlying the doctrine—“that it is natural for the vic- tim of a sexual assault to complain promptly following the assault”—had been substantially discredited. (Internal quotation marks omitted.) Id., 300. “The overwhelming body of current empirical studies, data, and other infor- mation establishes that it is not inherently natural for the victim to confide in someone or to disclose, immedi- ately following commission of the offense, that he or she was sexually assaulted.” (Emphasis in original; internal quotation marks omitted.) Id., 300–301. We noted, however, that “many people still adhere to the belief that a rape victim ordinarily will report the crime and that the failure of the victim to do so casts doubt on the credibility of the accusation”; id., 301; and, accordingly, we declined to abolish the doctrine altogether. Id., 303. Nevertheless, we concluded that the doctrine’s existing scope was “broader than necessary” to address those lin- gering misconceptions. Id. Although the doctrine served a legitimate purpose, we observed that “a defendant has an interest in not being unreasonably burdened by such accrediting or supporting evidence”; id., 302; and that concerns regarding prejudice “are magnified” when a victim reports the alleged assault to multiple individuals who are then permitted to recount the details of the com- plaint at trial. Id., 302–303. “In such circumstances,” we explained, “there is an enhanced risk that the jury may be unduly swayed by the repeated iteration of the constancy of accusation testimony.” Id., 303. Accord- ingly, we narrowed the scope of permissible constancy testimony largely “to the fact and timing of the victim’s complaint”; id., 304; and we reaffirmed the principle that “the defendant is entitled to an instruction that any delay by the victim in reporting the incident is a matter for the jury to consider in evaluating the weight of the victim’s testimony.” Id., 305. Thus, although Troupe rejected the outdated premise that delayed reporting is inherently inconsistent with sexual assault, it preserved the principle that the timing of disclosure remained a permissible subject for the jury’s consideration when evaluating the credibility of the victim and the weight to afford the victim’s testimony at trial.

Twenty years later, in Daniel W. E., this court modi- fied the constancy of accusation doctrine established in Troupe to address concerns regarding the cumulative, prejudicial effect of multiple constancy witnesses. See State v. Daniel W. E., supra, 322 Conn. 617–30. Under the framework adopted in Daniel W. E., if the defendant challenges the victim’s credibility on the basis of delayed disclosure or prior complaints, the state is “permitted to call constancy of accusation witnesses subject to the limitations established in Troupe . . . .” Id., 629. If, however, the defendant does not challenge the victim’s credibility on those grounds, the constancy testimony is not admissible, and the trial court is directed to “instruct the jury that there are many reasons why sexual assault victims may delay in officially reporting the offense, and [that], to the extent the victim delayed in reporting the offense, the delay should not be considered by the jury in evaluating the victim’s credibility.” Id. Through this modified framework, we sought to reduce the need for constancy evidence while preventing jurors from drawing unwarranted, adverse inferences from delayed disclosure. See id., 630.

In our recent decision in Adam P., we reconsidered the delayed disclosure instruction adopted in Daniel W. E. and clarified the operation of the constancy of accusation doctrine in sexual assault cases. See State v. Adam P., supra, 351 Conn. 220–30. In Adam P., the defendant challenged the trial court’s instruction to the jury that the victims’ “eight year delay in report- ing the sexual abuse [by the defendant] should not be considered by [the jury] in evaluating their credibility.” (Internal quotation marks omitted.) Id., 217–18. The trial court had provided that instruction pursuant to our earlier decision in Daniel W. E., which governed at the time of trial. See id. We concluded that the delayed disclosure instruction authorized by Daniel W. E. was incorrect and that the modified framework conflicted with important aspects of the doctrine articulated in Troupe. See id., 224–27. We explained that, under the approach authorized in Daniel W. E., “if a defendant challenges the victim’s credibility based on a delay in reporting and the state then calls constancy witnesses, the jury must be instructed to consider any delay; but, if a defendant does not challenge the victim’s credibility and the state therefore does not call constancy witnesses, the jury will be instructed to disregard any delay.” Id., 225–26. We could not “reconcile this disparate outcome considering the otherwise parallel nature of these cases.” Id., 226. We further explained that the instruction itself risked confusing jurors regarding what evidence they could properly consider in evaluating credibility. See id., 224–26.

In Adam P., we also rejected the state’s argument that the instruction merely prohibited the jury from considering the fact of delay, while still permitting con- sideration of the reasons for delay, when assessing a victim’s credibility. See id., 225. “[G]iven that we [had] trouble discerning or articulating this distinction con- vincingly ourselves,” we were not persuaded that “the jury would understand that the reasons why a victim might delay reporting sexual assault are necessarily separate from the delay itself based on the instructions provided . . . .” Id. Accordingly, we overruled Daniel W. E. and its requirement that trial courts, in certain circumstances, instruct jurors that a victim’s delay in reporting “should not be considered . . . in evaluating [the victim’s] credibility . . . .” (Internal quotation marks omitted.) Id., 234; see id., 229. Instead, we returned to the rule articulated in Troupe; id., 229; under which “the defendant is entitled to an instruction that any delay by the victim in reporting the incident is a matter for the jury to consider in evaluating the weight of the victim’s testimony . . . .” (Internal quotation marks omitted.) Id., 227; accord State v. Troupe, supra, 237 Conn. 305. We further explained that the abandonment of the Daniel W. E. instruction did not leave the jurors without guid- ance regarding delayed disclosure evidence. See State v. Adam P., supra, 351 Conn. 226–29. As we noted, the state remains free to present expert testimony concerning the behavioral characteristics of sexual assault victims, including delayed disclosure; id., 226; and trial courts retain the authority to admit properly limited constancy evidence and to guard against undue prejudice under the rules of evidence. Id., 227–28.

Applying these principles to the present case, we con- clude that the trial court improperly instructed the jury regarding delayed disclosure. Irrespective of our deci- sion in Adam P. in 2025, the instruction was improper under Daniel W. E., which was the governing law at the time of the defendant’s trial in 2023. As discussed, the trial court was authorized to give the delayed disclosure instruction “[i]f defense counsel [did] not challenge the victim’s credibility in any fashion” on the basis of delayed disclosure. (Emphasis added.) State v. Daniel W. E., supra, 322 Conn. 629. If defense counsel did challenge the victim’s credibility on the basis of delayed disclosure, the state’s remedy under Daniel W. E. was the introduction of constancy witnesses, not an instruction directing the jury to disregard the delay in evaluating credibility. Id. In the present case, it is undisputed that defense coun- sel challenged the victim’s credibility in part on the basis of her delayed disclosure. Defense counsel argued that the victim’s allegations were a recent fabrication brought about by a dispute between the victim and the defendant over money. Counsel argued that the allega- tions were not contemporaneously reported because the underlying facts did not happen. Instead, he argued, the victim concocted the allegations because she was angry with the defendant. Thus, because defense coun- sel placed the victim’s credibility at issue in part on the basis of her delay in reporting, the trial court’s modified delayed disclosure instruction was inconsistent with the framework set forth in Daniel W. E. itself.

Even if we assume, as the state contends, that, “in the context of the entire charge, the modification of the standard instruction from ‘the delay’ to the ‘mere fact of delay’ accomplished what the standard Daniel W. E. instruction that was at issue in Adam P. failed to do . . . [insofar as] it enabled the . . . jury to ‘understand that the reasons why a victim might delay reporting sexual assault are necessarily separate from the delay itself,’ ” the instruction nevertheless remains improper because the trial court should not have given it in any form. (Emphasis in original.) Although the trial court lacked the benefit of our subsequent decision in Adam P., which reaffirmed that delay is a proper factor for the jury’s consideration, the error of the instruction is even more apparent in view of that more recent decision. See State v. Adam P., supra, 351 Conn. 227. We therefore conclude that the trial court erred in instructing the jury as it did. B

We next consider whether the defendant is entitled to a new trial in light of the erroneous instruction. “To determine whether the defendant is entitled to a new trial because of an erroneous jury instruction, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. . . . In appeals not involving a constitutional question [we] must determine whether it is reasonably probable that the jury [was] misled . . . . [I]n appeals involving a constitutional question, [however, the standard is] whether it is reasonably possible that the jury [was] misled.” (Emphasis in original; internal quotation marks omitted.) Id., 230.

The defendant first contends that the instructional impropriety in the present case was constitutional in nature because it infringed on his state and federal con- stitutional rights to due process, to present a defense, and to challenge the state’s evidence by depriving the jurors of the ability to consider the victim’s delayed disclosure in assessing her credibility. He argues that, because credibility was the central issue in the case and the victim’s testimony constituted the only direct evi- dence against him, the instruction invaded the province of the jury as the sole arbiter of witness credibility, cre- ated an impermissible mandatory inference favorable to the state, and effectively diluted the state’s burden of proof. We disagree.

In Adam P., we concluded that delayed disclosure instructions of the type previously authorized by Dan- iel W. E., although improper, “are nonconstitutional in nature because they do not, on their own, confuse the ele- ments of a crime, shift the state’s burden of proof to the defendant, or undermine the defendant’s presumption of innocence.”6 Id., 231–32. The defendant nevertheless attempts to distinguish Adam P. on the ground that delayed disclosure was more central to his defense in the present case, which “depended on his ability to attack [the victim’s] credibility by exposing the unreasonable delay.” In Adam P., however, we expressly recognized that “[c]redibility is often particularly important in sexual assault cases, and victims’ delayed reporting may be relevant to their credibility. In fact, what to make of delay is often a point of dispute between the parties in sexual abuse cases, with one side positing that delay is a symptom of a victim’s trauma, and the other claim- ing that it is consistent with a motivation to fabricate accusations. Even so, neither delay nor credibility is an element of the charged offenses; nor do they shift the state’s burden of proof to the defendant.” State v. Adam P., supra, 351 Conn. 232. Thus, the defendant’s reliance on delayed disclosure as a central component of his attack on the victim’s credibility does not transform the instructional impropriety into one of constitutional magnitude. See, e.g., State v. William G., 232 Conn. App. 317, 329–30, 335 A.3d 511 (2025) (instructional error was nonconstitutional, even when defense theory turned on victim’s delay in reporting).7 Nor are we persuaded by the defendant’s contention that the challenged instruction deprived him of his right to present a defense. The instruction did not exclude defense evidence, prevent cross-examination, or foreclose the defense from otherwise challenging the victim’s credibility and advancing the theory that the victim fabricated her allegations.8 Although the instruction limited one permissible credibility inference, the jury remained free to disbelieve the victim’s testimony for any other reason apart from “the mere fact” that the victim delayed in disclosing the abuse and, thus, did not amount to a constitutional deprivation of the defendant’s right to present a defense. To the extent that delayed disclo- sure played a more prominent role in the present case, that consideration bears more directly on whether the instructional error was harmful rather than on whether it was of constitutional magnitude.

Therefore, consistent with our analysis in Adam P., we conclude that the instructional impropriety in the present case was nonconstitutional in nature. See State v. Adam P., supra, 351 Conn. 232–33.

C

Accordingly, “[w]e must now consider whether the defendant has demonstrated that it is not just reasonably possible, but reasonably probable—meaning more prob- able than not—that the instructional error misled the jury in arriving at its verdict, therefore requiring rever- sal.” Id., 233. “The defendant’s claim of harm requires that we conclude that the jury’s verdict turned on its misunderstanding, based on the [modified] Daniel W. E. instruction, that it could not consider the [victim’s] delayed reporting of the sexual abuse when assessing [her] credibility.” Id. “This determination is necessarily fact intensive, requiring that we look to the instructions provided, the parties’ theories of the case, and the larger record, all in their entireties, to ensure that injustice is not done to either party under the established rules of law. . . . We evaluate the harmfulness of a nonconstitu- tional error on the record as a whole. . . . An improper instruction is not automatically harmful merely because it adversely affects a defense.” (Citation omitted; internal quotation marks omitted.) Id. diluted the government’s burden of proof. Id., 104. The delayed dis- closure instruction in the present case did neither. See State v. Adam P., supra, 351 Conn. 231–32.

The defendant contends that the instructional impro- priety was harmful because the victim’s credibility was the central issue at trial and his principal theory of defense challenged the credibility of her allegations on the basis of delayed disclosure. He argues that, because his convictions rested solely on the victim’s testimony, the state presented no evidence corroborating the allega- tions, and the jury returned a guilty verdict on all counts, it is reasonably probable that the challenged instruc- tion misled the jury to believe that it could not consider delayed disclosure in assessing the victim’s credibility and that the jury’s guilty verdict turned on such misun- derstanding. The defendant further contends that the prejudicial effect of the instruction was compounded by the state’s presentation of expert testimony explaining delayed disclosure.

The state responds that the defendant cannot dem- onstrate harm because the jury instructions, viewed as a whole, adequately informed the jury regarding cred- ibility, the burden of proof, and inconsistent statements. The state further argues that the defendant’s fabrication theory relied not on the mere fact of delayed disclosure but on apparent contradictions and inconsistencies in the victim’s testimony, the lack of corroborating evi- dence, the implausibility of the victim’s allegations, and the victim’s motive to fabricate. Finally, the state contends that its case was sufficiently strong that there is no reasonable probability that the modified instruction affected the verdict.

Having reviewed the record in its entirety, including the instructions as a whole, the defendant’s theory of the case, the evidence presented at trial, and the parties’ closing arguments, we conclude that it is not reasonably probable that the erroneous delayed disclosure instruc- tion misled the jury in arriving at its verdict.

We first consider the jury instructions. Notwithstand- ing the erroneous delayed disclosure instruction, we are not persuaded that the jury would have understood the challenged language to prohibit consideration of the victim’s credibility more generally or defense counsel’s specific argument that the evidence demonstrated that the victim’s allegations against the defendant were the product of a recent fabrication. Viewed as a whole, the charge repeatedly emphasized that the jury retained exclusive authority to determine witness credibility, to assess inconsistencies and omissions, and to decide what weight, if any, to assign to the victim’s testimony. The trial court instructed the jury that it was “the sole [judge] of the facts” and that it alone determined what testimony to accept or reject, including whether to “believe all, none, or any part of any witness’ testimony.” The court charged the jurors to assess witness credibility by consid- ering, among other things, a witness’ ability to perceive and recall events, a witness’ demeanor while testifying, a witness’ possible bias or interest in the outcome of the case, the reasonableness of testimony in light of all the evidence, and whether the testimony was “contradicted by what that witness has said or done at another time or by the testimony of other witnesses or by other evidence.” The court further instructed the jury that “[e]vidence has been presented that [the victim] made statements outside of court that are inconsistent with her trial tes- timony,” explained that “[t]he law treats an omission in a prior statement as an inconsistent statement,” and directed jurors to consider such evidence in determining the weight to assign the victim’s testimony. The court instructed the jurors that, in evaluating credibility, they should consider whether a contradiction reflected “an innocent lapse in memory or an intentional falsehood” and that, if they believed a witness had “deliberately testified falsely in some respect,” they should “care- fully consider” whether to rely on any of that witness’ testimony.

To the extent that the defendant argues that the delayed disclosure instruction reinforced the testimony of the state’s expert, Madigan, and directed the jury to accept the state’s theory that the victim’s delayed disclosure was consistent with the typical behavior of child sexual abuse victims, rather than indicative of her untruthfulness, we are not persuaded. The jury was expressly instructed that Madigan’s testimony was not binding and could be disregarded completely if the jury saw fit.9 Moreover, in Adam P., the state similarly presented expert testimony that sexual assault victims often delay reporting abuse, and defense counsel likewise argued that the delayed disclosure instruction would “bolster” the expert’s testimony. State v. Adam P., supra, 351 Conn. 219. Nevertheless, the presence of such expert testimony did not alter our conclusion in Adam P. that the instructional error was harmless. See id., 239–40, 243.

Additionally, rather than providing the standard Dan- iel W. E. charge, which instructs jurors broadly that delayed disclosure should not be considered in evaluating the victim’s credibility; see State v. Daniel W. E., supra, 322 Conn. 629; the trial court modified the language to instruct that only “the mere fact of [the victim’s] delay” should not be considered. Although the modified delayed disclosure instruction should not have been given in light of defense counsel’s attack on the victim’s credibility, the added language lessened the likelihood that the jury understood the instruction to foreclose all consideration of the circumstances associated with the delayed disclo- sure that independently bore on credibility.

Although the concurring and dissenting opinion con- cludes that the trial court’s modification of the stan- dard Daniel W. E. instruction has no meaningful effect because, in Adam P., we rejected the state’s argument that the jury would have understood the instruction to mean “that it could consider the victims’ reasons for delay, but not the fact of the delay itself, when assess- ing their credibility,” we did not conclude that such a distinction was conceptually unsound or could never be communicated to or understood by a jury. State v. Adam P., supra, 351 Conn. 225; see also part II C of the concurring and dissenting opinion. Rather, we concluded that the standard Daniel W. E. instruction fails to com- municate that distinction. See State v. Adam P., supra, 224–25. The instruction at issue in Adam P. referenced “evidence ‘that [the victims] delayed in making an offi- cial report’ of the assaults and explain[ed] in the same sentence that there are ‘many reasons why sexual assault victims may delay,’ all the while admonishing that any delay ‘should not be considered by [the jury] in evaluat- ing [the victims’] credibility.’ ” Id. Thus, because the instruction informed the jury that there were “ ‘many reasons’ ” why victims may delay reporting but then, in the same sentence, categorically directed that delay should not be considered in evaluating credibility, “we underst[ood] how the sentence [could] create confusion.” Id., 225. We further explained that “we do not believe that the jury would understand that the reasons why a victim might delay reporting sexual assault are neces- sarily separate from the delay itself based on the instruc- tions provided, given that we have trouble discerning or articulating this distinction convincingly ourselves.” (Emphasis added.) Id.

Unlike the standard instruction at issue in Adam P., the modified instruction in the present case did not cat- egorically direct the jury to disregard delayed disclosure. Rather than leaving the jury to infer some unstated limitation from a broad prohibition against considering the victim’s delay, the trial court first informed the jury that “[t]here are many reasons why sexual assault victims may delay in officially reporting the offense” and then expressly instructed the jury that only “the mere fact of [the victim’s] delay should not be considered . . . in evaluating her credibility.” In this way, the modifica- tion addressed the concern we expressed in Adam P. by expressly conveying to the jury the distinction between the fact of the delay and the reasons for, or circumstances surrounding, the delayed disclosure. See State v. Adam P., supra, 351 Conn. 225. Accordingly, the modified instruction was less likely than the standard instruc- tion at issue in Adam P. to be understood by the jury as precluding it from considering all evidence relating to the victim’s delayed disclosure, including the par- ties’ competing theories concerning the timing of the disclosure and its significance in assessing the victim’s credibility. Although this modification did not render the instruction proper in this case, the reduced risk of misunderstanding remains relevant to our harmless error analysis.10

The concurring and dissenting opinion suggests that it cannot discern what it means to consider “the mere fact” of delay differently from the surrounding circumstances. See part II C of the concurring and dissenting opinion. The distinction, however, is neither abstract nor novel. The phrase “the mere fact of . . . delay” refers to the existence of a lapse of time between the alleged abuse and the victim’s disclosure, standing alone. It does not, by its terms, encompass the circumstances surrounding the delayed disclosure or any other evidence bearing on the victim’s credibility. Thus, consistent with the historical considerations that informed the development of our constancy doctrine, the modified instruction prohibited only one inference—that, solely because the victim did not promptly disclose the abuse, she is therefore less credible. See, e.g., State v. Troupe, supra, 237 Conn. 303 (noting “the unwarranted, but nonetheless persistent, view that a sexual assault victim who does not report the crime cannot be trusted to testify truthfully about the incident”). This inference, as we explained in part II A of this opinion, is rooted in the now discredited premise underlying the constancy doctrine, that is, “that it is natural for the victim of a sexual assault to complain promptly following the assault”; (internal quotation marks omitted) id., 300; and, if the victim “did not, [if] she went about as if nothing had happened, [it] was in effect an assertion that nothing violent had been done.” (Internal quotation marks omitted.) Id., 295–96. This inference has “[i]ndisputably . . . been discredited sub- stantially in contemporary times.” (Internal quotation marks omitted.) Id., 300. Because the modified instruc- tion in the present case prohibited only that limited inference, it did not otherwise preclude the jury from considering the circumstances surrounding the eventual disclosure—including when, how, why, and under what circumstances that disclosure occurred—to the extent that those circumstances bore on the victim’s credibility and the veracity of her allegations.

This is particularly true given the defendant’s theory in attacking the credibility of the victim’s disclosures, the state’s explanations for the victim’s delay in disclos- ing, and the inconsistencies in the victim’s accounts of what had happened. The defendant’s theory was not that the jury should not believe the victim solely because she delayed disclosing the alleged sexual assaults. Rather, defense counsel argued that the victim had fabricated the allegations shortly after her quinceañera11 because the defendant kept the cash gifts she had received, and that the inconsistencies in her recounting of the alleged abuse proved that her story was contrived. The state responded to that theory by presenting Madigan to explain why child sexual assault victims delay disclosing and often disclose details incrementally. The trial court’s instruc- tion that the jury could not consider “the mere fact of [the victim’s] delay” did not limit the jury’s consideration of the defendant’s theory of defense or the state’s response. Accordingly, when read together with the remainder of the charge, we are not persuaded that the jurors rea- sonably would have understood the modified delayed disclosure instruction to foreclose consideration of defense counsel’s challenges to the victim’s credibility.

The instructions as a whole repeatedly emphasized the jury’s exclusive role in evaluating witness credibility, directed the jurors to consider inconsistencies and omis- sions in the victim’s prior statements, and reiterated that the state bore the burden of proving each element beyond a reasonable doubt.12 See State v. Adam P., supra, 351 Conn. 234 (“[t]here is no reason to believe that the jury, based purely on the Daniel W. E. instruction, would disregard the credibility factors the court provided as examples in its final charge or its instruction on the state’s burden of proof”).

Our conclusion that the delayed disclosure instruc- tion did not mislead the jury is supported further by the evidence in the record and the defendant’s theory of defense. At trial, defense counsel advanced a cohesive theory centered on the victim’s motivation to fabricate the allegations following a dispute with the defendant over money she received at her quinceañera. Consistent with that theory, counsel sought to persuade the jury that the victim had acted on that motive and argued that the evidence presented at trial demonstrated that the allegations were fabricated.

The evidence at trial reflected that, on the Saturday following the victim’s fifteenth birthday, the defendant hosted a quinceañera for the victim. The defendant and Diaz paid for most of the celebration, which included the hall rental, food, drinks, a disc jockey, security, and the victim’s dress. Guests brought gifts for the victim and placed envelopes containing cash gifts into a card box. The victim stayed overnight at the defendant’s home following the party. The next day, the victim opened the card box and counted the money she had received. The defendant subsequently informed her that he intended to keep the cash gifts to reimburse himself for expenses he incurred in hosting the celebration. The victim was upset by the defendant’s decision, left the defendant’s home, and did not speak with him again.13 Approximately eight days later, the victim disclosed the sexual abuse to English.

Defense counsel argued to the jury that the dispute concerning the victim’s quinceañera money explained why she would falsely accuse the defendant. The impor- tance counsel attached to this theory is reflected in both his examination of witnesses and his representations to the trial court. Counsel questioned the victim about “storming out of the house” following the dispute and emphasized during closing argument that the victim had not seen or spoken to the defendant since that day.14 In seeking to admit the testimony of E that the victim told her that the defendant had kept the cash gifts from the quinceañera, defense counsel explained to the court that “[t]he fact that [the victim] was given money but [the defendant] took the money is the motive for these false allegations. . . . That’s our whole defense . . . .” Counsel further argued that the victim’s belief that the defendant had taken her money was “the number one key of our defense,” “everything in this case in terms of the defense,” and “exactly what our defense is,” because it established the victim’s “motiv[ation] to, eight days later, make these complaints.” Thus, the defense theory was that the victim fabricated the allegations because she was angry with the defendant for taking her quinceañera money. The remaining credibility challenges advanced by the defense were offered to persuade the jury that the victim had acted on that motive.

Consistent with this fabrication theory, defense coun- sel sought to demonstrate that the victim’s testimony about the abuse was unreliable. He questioned the victim at length about statements she had made during the 2018 forensic interview and compared those statements to her trial testimony, focusing on allegations or details that appeared in one account but not the other, as well as details that changed over time. Counsel then revisited many of those discrepancies during his direct examina- tion of Sauter, eliciting testimony about statements the victim had made during her forensic interview that were absent from, or distinct from, her trial testimony. During closing argument, defense counsel returned to those discrepancies and repeatedly argued that they con- stituted “direct contradictions” demonstrating that the victim’s allegations were fabricated rather than truthful recollections of the abuse.15 Counsel also relied on the tes- timony of the state’s expert, Madigan, to reinforce this argument. He emphasized Madigan’s acknowledgment that true contradictions, as opposed to the incremental disclosure of additional details over time, may indicate fabrication, arguing that her testimony revealed that such contradictions “are a telltale sign of a false accusa- tion” and “not something you would expect [during] the process of disclosure.”16 Defense counsel argued that the victim changed her account of the abuse “to make her two stories more consistent and more believable,” and that the discrepancies he had highlighted throughout trial constituted precisely the type of contradictions indicative of fabricated allegations.17 Defense counsel also focused on the timing, progres- sion, and content of the victim’s disclosures as part of his broader effort to demonstrate that her account of the abuse was unreliable. Through his cross-examination of the victim, he explored the circumstances surrounding her disclosures to English, family members, the police, “the only thing [the victim] didn’t directly contradict is the Bridgeport incident. And [do] you know why? Because she didn’t give any details in 2018 to contradict.” and Sauter, and sought to challenge the consistency of her explanations regarding how and when she came forward with the allegations.18 He further elicited that, during the February 2018 forensic interview, the victim stated that she did not recall any abuse besides the three incidents she described at the time. At trial, however, she testified that the abuse occurred many more times when she was between the ages of five and twelve, although she had not previously disclosed those additional memories to “anybody on the planet . . . .” Defense counsel further emphasized that the victim repeatedly claimed not to The concurring and dissenting opinion views this case as “unique” because defense counsel argued that the victim’s testimony that reading a book in school “ ‘triggered’ ” memories she had “ ‘kept buried inside’ ” or repressed was incompatible with her later testimony that she “ ‘never forgot’ ” the abuse. Part II A of the concurring and dissenting opinion. We believe that that argument mischaracterizes the victim’s testimony. When defense counsel first asked whether the book “triggered memo- ries” of the abuse, the victim said “[y]es.” But, when counsel tried to reframe the victim’s answer as meaning that she had previously forgotten the abuse, she unequivocally rejected that characterization, responding: “I never forgot. I just never found the ability to talk about it because I was in constant fear, and [the defendant] kept bribing me by buying me stuff.” The victim likewise declined counsel’s repeated attempts to characterize her experience as recovering “long lost memo- ries,” explaining that the book “triggered” memories that she had “kept buried inside . . . .” And, when defense counsel later suggested that, if the book had “triggered [the victim] to remember these incidents,” then she necessarily “didn’t remember them” when she was twelve years old, the victim rejected that premise, responding: “I did.” Thus, the victim never testified that she had forgotten or repressed the abuse until the book caused her to recover those memories for the first time. Rather, she consistently maintained that she had always remembered the abuse but had “buried” it, “sort of just kept it down,” and did not tell anyone about the abuse, other than the two schoolmates to whom she did disclose it, because she “was in constant fear,” had been told not to disclose it, had been bribed to remain silent, and “was scared that [disclosure] would end up hurting” her sisters insofar as the defendant was their father. The victim never testified that the memories had been absent from her consciousness or that she had repressed them. To the contrary, she testified that she “never forgot” the abuse. Whether the jury credited that explanation is, of course, a question of fact. We disagree only with the assertion of the concurring and dissenting justice that this presents a “unique” case because the defense theory was that the victim’s account “not only of the alleged crimes but of the delay itself was inconsistent . . . .” (Emphasis in original.) remember statements she had made during her forensic interview, despite acknowledging that she had reviewed a recording of the interview just three weeks prior to trial. In closing, counsel relied heavily on the victim’s inability to recall her prior statements or to provide any details about the additional abuse in arguing that her allegations had evolved over time because they were fabricated rather than remembered.

Defense counsel likewise emphasized the absence of physical or corroborating evidence and argued that aspects of the victim’s allegations were implausible. For example, counsel highlighted that N had bathed the victim on the day of the incident at the Stamford resi- dence yet testified that she observed no signs of abuse. Counsel further argued that the victim had changed her account of that incident because, as she got older, she realized “how [im]plausible [it is] that a grown man put his adult penis in her five year old buttocks and there’d be no physical signs.” Counsel also highlighted the evidence that contradicted the victim’s accounts, including tes- timony that the defendant and his brothers did not play organized outdoor soccer, and Diaz did not begin selling food at those games, until 2015—several years after the alleged Bridgeport incident—and that the defendant did not treat the victim differently than her sisters.

Defense counsel further argued that the victim’s fab- rication was allowed to gain traction because the police had failed to adequately investigate the victim’s claims. Throughout closing argument, counsel repeatedly criti- cized Lugo for failing to interview potential witnesses, to pursue corroborating information, or to investigate and verify the circumstances surrounding the victim’s disclosure at school.19 Counsel argued that these inves- tigative deficiencies deprived the jury of evidence that could have confirmed or disproved the victim’s allega- tions, and, thus, the inadequate investigation under- mined the state’s ability to prove the defendant’s guilt beyond a reasonable doubt.

The victim’s testimony that she disclosed the abuse to Maya and DeAndre several years prior to 2018 further undermines the defendant’s contention that his defense depended on persuading the jury that the victim’s alle- gations were not credible simply because she delayed disclosure. The victim testified that she told Maya about the Bridgeport incident shortly after it occurred and later disclosed the incidents at the Stamford residence and Cummings Park to DeAndre when they were in middle school. She likewise referenced her disclosure to DeAn- dre during the forensic interview. Thus, if credited, the victim’s testimony established that she had disclosed the abuse to her classmates years before her 2018 disclo- sure to English. Defense counsel, however, incorporated these purported earlier contemporaneous disclosures into his broader fabrication theory. During closing, counsel emphasized that the victim could not provide the last names of Maya or DeAndre, despite describing them as close friends, and argued that it was not believable that she remembered disclosing the abuse to those friends but could not recall their full names. Counsel further highlighted that law enforcement officers never identi- fied, located, or interviewed either individual.

Thus, as in Adam P., the record in the present case does not support “the defendant’s efforts on appeal to portray the delay as the centerpiece of his defense . . . .” State v. Adam P., supra, 351 Conn. 238. Even if we assume that defense counsel tempered his reliance on delayed disclosure during closing argument in anticipation of the trial court’s instruction, the record nevertheless demonstrates that the defense theory did not depend take a statement from English, (5) to speak to the teacher of the class in which the victim was triggered to disclose, (6) to attempt to locate the book the victim was reading in that class, and (7) to interview the school psychologist with whom the victim spoke. on persuading the jury that the victim was untruth- ful merely because she delayed in reporting the abuse. Rather, counsel advanced a comprehensive fabrication theory, arguing that the victim had falsely accused the defendant because she was angry with him for taking her quinceañera money. In support of that theory, counsel argued that evidence regarding the timing and circum- stances of the victim’s disclosures, contradictions and inconsistencies between her forensic interview and trial testimony, the evolution of her allegations over time, implausibilities in her account, and deficiencies in the police investigation all combined to demonstrate that the allegations were fabricated. Thus, as in Adam P., “the jury was able to appreciate [the defendant’s theory of] defense even if it arguably believed it was constrained to disregard delay in assessing the [victim’s] credibility.” Id., 236. “[T]he jury was able to assess the [victim’s] credibility by considering other factors, such as [her] consistency while testifying, that both the trial court and defense counsel had emphasized.” Id., 239.

We next consider the strength of the state’s case. We agree that the victim’s credibility was central in the pres- ent case, and, based on the lack of physical or forensic evidence corroborating the abuse, we recognize that the state’s case was not particularly strong. See, e.g., State v. Giovanni D., 353 Conn. 742, 760, 346 A.3d 945 (2025) (“[g]iven the lack of physical evidence or eyewitnesses to the alleged abuse, the state’s case was not an exceedingly strong one”); State v. Freddy T., 200 Conn. App. 577, 599, 241 A.3d 173 (2020) (“[i]n cases of sexual assault or risk of injury to a child, a lack of corroborating physical evidence or any witnesses to the alleged sexual assaults . . . weakens the state’s case” (citation omitted; internal quotation marks omitted)). Nevertheless, a sexual abuse case “is not automatically weak”; State v. Felix R., 319 Conn. 1, 18, 124 A.3d 871 (2015); just because there is a “lack of conclusive physical evidence corroborating sexual assault,” especially when, as in the present case, there is other corroborating evidence introduced at trial. Id., 19. Although there was no physical evidence of the sexual abuse, the state’s case was not devoid of supporting evi- dence. The victim’s older sister, N, testified about the day of the incident at the Stamford residence and the layout of the house, all of which largely corroborated the victim’s testimony.20 Additionally, English testified regarding the victim’s initial disclosures and corrobo- rated several aspects of the victim’s testimony concern- ing the circumstances of those disclosures, including the victim’s fears about disclosure.21 Finally, Madigan’s testimony about the behavioral characteristics typical of child sexual assault victims provided some context for the victim’s accounts.

Thus, this was neither an exceptionally strong case nor one entirely devoid of corroboration. Although the state’s case depended heavily on the victim’s credibility, the corroborative testimony presented provided some independent support for aspects of the victim’s accounts and distinguishes this case from one resting solely on the victim’s uncorroborated testimony. Accordingly, the relative weakness of the state’s case does not, in light of the foregoing analysis, persuade us that it is reason- ably probable that the challenged instruction infected the verdict.

Finally, the defendant argues that, unlike in Adam P., the jury in the present case found him guilty on all counts, and, therefore, there is no split verdict from which this court may infer that the jury evaluated the victim’s credibility on the basis of evidence other than the delayed disclosure. See State v. Adam P., supra, 351 Conn. 242. We are not persuaded. As we observed in Adam P., “there are limits to what inferences we may properly draw from a jury’s verdict . . . .” Id. In any event, even if we were to assume that the absence of a split verdict lends some support to the defendant’s position, it would not undermine our conclusion that the instructional error was harmless.22 As we have explained, the record independently supports our conclusion that the jury was able to assess the victim’s credibility on the basis of evidence other than the mere fact of the delayed disclosure.

In conclusion, our review of the record persuades us that the defendant’s theory of defense that the victim fabricated the allegations did not hinge on the jury’s ability to infer untruthfulness from the mere fact of delay in disclosure. The record reflects that the defen- dant’s theory of defense was that the victim fabricated the allegations against the defendant shortly after the victim’s quinceañera because she was angry with him for keeping the money she had received. Defense counsel argued that several aspects of the evidence adduced at trial indicated that the victim had fabricated the allega- tions and advanced several reasons why the jury should reject the victim’s testimony as not credible. Thus, “the jury had sufficient grounding on which to make a cred- ibility determination . . . .” Id., 242–43.

In light of the adequacy of the jury instructions as a whole, the modified language of the delayed disclosure instruction, the defendant’s broader fabrication theory, and the evidence presented at trial, we conclude that the defendant has not demonstrated that it is reasonably probable that the improper instruction misled the jury in reaching its verdict.

III

The defendant next argues that the delayed disclosure instruction improperly infringed on his constitutional right to present a closing argument. He claims that the trial court’s instruction prevented defense counsel from arguing that the victim’s delayed disclosure undermined her credibility and supported the defense theory that she had fabricated the allegations. The defendant further contends that this alleged infringement constituted structural error requiring automatic reversal. We dis- agree.

The following principles guide our analysis. “The opportunity for the defense to make a closing argument in a criminal trial has been held to be a basic element of the adversary process and, therefore, constitutionally pro- tected under the sixth and fourteenth amendments. . . . Closing argument is an integral part of any criminal trial, for it is in this phase that the issues are sharpened and clarified for the jury and each party may present his theory of the case. Only then can [counsel] . . . argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt.” (Internal quotation marks omitted.) State v. Silva, 339 Conn. 598, 625–26, 262 A.3d 113 (2021). We “have consistently recognized that the sixth amendment right to present a closing argu- ment protects a criminal defendant’s right to present his theory of the defense at the close of evidence.” State v. Gonzalez, 338 Conn. 108, 130, 257 A.3d 283 (2021). The right is abridged not only when a defendant is denied summation altogether, but also when he “is deprived of the opportunity to raise a significant issue that is reason- ably inferable from the facts in evidence,” particularly when “the prohibited argument bears directly on the defendant’s theory of the defense.” (Internal quotation marks omitted.) Id., 128; accord State v. Arline, 223 Conn. 52, 64, 612 A.2d 755 (1992). At the same time, “the scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. . . . It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from consider- ing matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations. . . . [Although] we are sensitive to the discretion of the trial court in limiting argument to the actual issues of the case, tight control over argument is undesirable when counsel is precluded from raising a significant issue.” (Internal quotation marks omitted.) State v. Robert R., 340 Conn. 69, 80, 262 A.3d 810 (2021).

The record does not demonstrate that the trial court prevented defense counsel from presenting the defen- dant’s theory of defense to the jury during closing argu- ment. Although the court informed the parties, prior to closing argument, that it intended to provide the modi- fied delayed disclosure instruction in its final charge, the court did not circumscribe the permissible scope of summation. The court did not tell defense counsel or otherwise rule that he could not argue delayed disclosure or advance any of his arguments in support of his fabri- cation theory. Nor did the court prohibit counsel from urging the jury to reject the victim’s testimony. Rather, after the parties had finished delivering their closing arguments, the court instructed the jury that “the mere fact of [the victim’s] delay” should not be considered in evaluating her credibility.

The delayed disclosure instruction therefore concerned only the jury’s use of evidence; it did not restrict the scope of defense counsel’s summation. See State v. Ames, 171 Conn. App. 486, 516–17, 157 A.3d 660 (“[r]egard- ing a trial court’s interference with closing argument, our courts have found reversible error only [when] the trial court affirmatively precluded defense counsel from discussing particular issues during closing argument”), cert. denied, 327 Conn. 908, 170 A.3d 679 (2017). Cases recognizing violations of a defendant’s right to present a closing argument have involved affirmative trial court rulings precluding the defense from making specific argu- ments during closing. See State v. Robert R., supra, 340 Conn. 86; see also, e.g., id., 77, 79–80, 89 (precluding defense counsel from arguing that victim planted defen- dant’s DNA on paper towel following consensual sexual encounter to substantiate her false allegations violated defendant’s right to present closing argument); State v. Arline, supra, 223 Conn. 63–65 (precluding defense counsel from referring to “the only evidence from which the jury could infer motive or bias” violated defendant’s right to present closing argument); State v. Ross, 18 Conn. App. 423, 431–34, 558 A.2d 1015 (1989) (preclud- ing defense counsel from commenting that state’s sole eyewitness did not testify at trial violated defendant’s right to present closing argument). But cf. State v. Silva, supra, 339 Conn. 622–28 (there was no violation of defen- dant’s right to present closing argument when trial court sustained objection to defense counsel’s “missing witness argument”). The defendant has not identified, and we are not aware of, any case in which we have found a violation of a defendant’s constitutional right to present a closing argument when defense counsel was not affirmatively restricted during summation but instead claimed to be effectively constrained by the anticipated content of a forthcoming jury instruction.

Thus, this case differs from those involving “trial court interference that absolutely precluded . . . defendants from presenting the theory of their defenses.” State v. Gonzalez, supra, 338 Conn. 132. Even if, as the defen- dant contends, the erroneous instruction effectively restricted counsel from relying on the mere fact of delay during summation because he could not properly urge the jury to disregard the court’s instructions, the record does not support the conclusion that the defendant was deprived of the opportunity to present his fabrication theory to the jury. Indeed, defense counsel repeatedly addressed the timing and evolution of the victim’s dis- closures during closing argument. He challenged the victim’s account of when and how she remembered the abuse, arguing that her claimed prior disclosures to friends were inconsistent with her testimony that the book she was reading in class later “triggered” repressed memories, and asserting that those explanations did not “make sense.” Counsel further argued: “[I]f [the victim] really remembered all along, she just decided to tell now. Why wouldn’t she just say that here?” Notwithstanding the challenged instruction, counsel expressly invited the jury to draw credibility inferences from the timing, pro- gression, consistency, plausibility, and circumstances of the victim’s disclosure. Thus, the challenged instruction neither foreclosed the defendant’s principal contention that the victim lacked credibility nor prevented counsel from arguing that the state failed to satisfy its burden of proof. To the contrary, the defendant remained free to advance—and in fact did advance—his theory that the victim had fabricated the allegations because she was angry with him.

The defendant’s reliance on State v. Robert R., supra, 340 Conn. 69, does not persuade us otherwise. In Robert R., we concluded that the trial court had violated the defendant’s constitutional right to present a closing argument when it barred defense counsel from arguing to the jury that the victim had planted physical evidence on a paper towel after a consensual sexual encounter with the defendant in an effort to substantiate her false allegations that the defendant had sexually assaulted her. See id., 77, 79–80, 89. We found this restriction on defense counsel’s arguments particularly significant because the prosecutor had argued that the victim had no motive to fabricate her testimony and that the defen- dant had repeatedly lied. Id., 88. We concluded that, because the case turned on questions of credibility, it was “disconcerting that the defendant was not afforded an equal opportunity to emphasize his theory” that the victim had also lied. Id.

The present case differs in both form and effect. The prohibited argument in Robert R. supplied an exculpatory explanation for how inculpatory physical evidence came to exist at all—namely, that the victim herself manufac- tured evidence to corroborate her false accusation. The precluded argument would have directly undermined the evidentiary basis of the state’s case. The challenged instruction in the present case, however, restricted only the jury’s ability to draw a permissible credibility infer- ence arising solely from the timing of delayed disclosure; it did not prevent defense counsel from arguing that the circumstances surrounding the disclosure showed that the victim had lied about the allegations or otherwise lacked credibility. Further, evidence that the victim provided contradictory accounts of the alleged abuse and possessed a motive to fabricate more directly sup- ported the defendant’s theory that the victim lied than did the mere fact that the disclosure was first made to an authority figure years after the abuse. Under these cir- cumstances, the challenged instruction did not foreclose defense counsel from advancing the central premise of the defendant’s defense and, therefore, did not operate in the manner of the affirmative restrictions on summa- tion recognized in our prior cases.

IV

Finally, the defendant claims that the trial court erred when it admitted evidence of the video recording of the victim’s forensic interview. He argues that the recording was inadmissible hearsay and that the court erroneously admitted it under the medical diagnosis or treatment exception because there was no evidence that the victim understood the interview to have a medical purpose or that her statements were reasonably pertinent to treat- ment. He further contends that, to the extent the court admitted the recording as a prior consistent statement, that ruling also was improper because the recording con- tained statements beyond those necessary to rehabilitate the victim, and the jury received no limiting instruction. The state responds that we need not reach the merits of those evidentiary arguments because the court relied on several grounds to admit the recording, including the rule of completeness; see Conn. Code Evid. § 1-5; which the defendant has not challenged on appeal. Because the defendant has not challenged the rule of completeness as an independent basis for the trial court’s ruling, the state maintains that this court cannot grant him relief on this evidentiary claim. We agree with the state.

The record reflects that, after defense counsel used statements the victim had made during the forensic interview to impeach the victim on cross-examination and later elicited testimony from Sauter concerning statements the victim had made or omitted during the forensic interview,23 the prosecutor sought admission of the recording on multiple grounds. The prosecutor first argued that, under the rule of completeness, the remainder of the interview should be admitted because the defense had introduced prior inconsistent statements from the interview and the additional portions were nec- essary to provide context. The prosecutor next argued that, because the victim’s credibility had been impeached with prior inconsistent statements, the remainder of the interview constituted prior consistent statements that were consistent with her trial testimony and were admis- sible to rebut that impeachment. The prosecutor further argued that she had laid a foundation for its admission under the business records exception to the hearsay rule. The trial court then raised the medical diagnosis or treatment hearsay exception under § 8-3 (5) of the Connecticut Code of Evidence, after which the prosecu- tor argued that Madigan’s testimony established that a forensic interview serves to assess a child’s medical and mental health needs, that the victim received therapy at the Child Guidance Center of Southern CT following the interview, and that the victim later underwent a forensic medical examination.

Defense counsel objected, arguing that the medical diagnosis or treatment exception did not apply because there was no foundation that the interview was conducted for purposes of medical treatment, and because it was purely investigatory. He also argued that the rule of completeness did not warrant admission of the entire interview because the prior inconsistent statements elicited on cross-examination were not misleading or taken out of context. Finally, he argued that any prior would have that effect, arguing that he was offering live testimony rather than the recording itself, the court advised: “[T]he more I’m listening to you, and you want to offer a witness who was on video five years ago talking to the [victim], rather than offering the portion of the video [in which] the [victim] said what you said she said—and I’m not disputing the accuracy of what she said—the recitation, not necessar- ily accuracy in the sense of truthfulness. But . . . your argument is . . . different from what she testified to here under oath. I grant that. . . . I’m just letting you know that the consequences of that may allow the state on rebuttal to offer the video. But we’re not there yet.” consistent statements should be elicited from the wit- ness rather than admitted through the recording, which he maintained was unfairly prejudicial. The trial court rejected the applicability of the business records excep- tion but stated that it would admit the recording “on several grounds.”24 The court also indicated that the recording was admissible under the medical diagnosis or treatment exception.

Although the defendant acknowledges that the pros- ecutor offered the rule of completeness as a ground for admitting the forensic interview during the trial, the defendant challenges only the medical treatment and prior consistent statement theories of admissibility on appeal. Relying on State v. Lester, 324 Conn. 519, 153 A.3d 647 (2017), the defendant argues in his reply brief that he need not challenge the rule of completeness ground because the trial court’s articulated basis for admitting the evidence rested on the medical treatment and prior consistent statement grounds and that “[a] reviewing court evaluates an evidentiary ruling based on the grounds articulated by the trial court in admitting the evidence . . . not on the various, alternative rationales offered by the state.”25 (Citation omitted.)

We are not persuaded. Although the defendant cor- rectly observes that appellate review ordinarily focuses on the grounds articulated by the trial court, the record in the present case demonstrates that the trial court admit- ted the recording on multiple, independent grounds, including the rule of completeness. Prior to the admission of the recording, the trial court observed that defense counsel’s use of selected portions of the forensic inter- view to impeach the victim on cross-examination and through Sauter’s testimony could “[open] the door to the state’s offering the entire video under the doctrine of completeness.” Thereafter, when the prosecutor formally offered the recording into evidence, she expressly relied on the rule of completeness and the business records exception, and argued that it could also be admitted as a prior consistent statement. Although the court rejected the state’s reliance on the business records exception, it stated that it would admit the recording “on several grounds.” The court did not specifically limit its ruling to the medical treatment exception to the hearsay rule or the rule concerning the admission of prior consistent statements; nor did it reject the state’s reliance on the rule of completeness. Accordingly, the record does not support the defendant’s contention that the trial court did not rely on the rule of completeness as an independent basis for admitting the recording of the entire forensic interview into evidence.26

Thus, the defendant’s failure to challenge on appeal each independent basis for admitting the forensic inter- view is dispositive. “[W]hen an appellant challenges a trial court’s adverse ruling, but does not challenge all independent bases for that ruling, the appeal is moot.”27 State v. Lester, supra, 324 Conn. 527. Even if we agreed with the defendant that the recorded interview was not admissible under the medical treatment exception or as a prior consistent statement, the unchallenged rule of completeness ground would remain an independent basis for the trial court’s ruling. See id., 526–28; see, e.g., State v. Council, 344 Conn. 113, 121–22, 277 A.3d 1251 (2022). For that reason, we cannot grant the defendant any practical relief. See, e.g., State v. Lester, supra, 528. Consequently, the defendant’s evidentiary claim that the video recording of the victim’s forensic interview was improperly admitted is moot.

The judgment is affirmed.

In this opinion MULLINS, C. J., and ALEXANDER and DANNEHY, Js., concurred.