Date: 04-11-2016

Case Style: STATE OF CONNECTICUT v. CHYWON WRIGHT

Case Number: SC 19233, SC 19234

Judge: Peter T. Zarella

Court: Connecticut Supreme

Plaintiff's Attorney: Robert J. Scheinblum, Maureen Platt, David A. Gulick, Rocco A. Chiarenza

Defendant's Attorney: Annacarina Jacob

Description: The defendant in these certified appeals, Chywon Wright, was convicted of various crimes stemming from his involvement in a sexual assault that occurred on November 1, 2008. On that date, ‘‘the victim1 accompanied Bryan Fuller, a member of a street gang, to a vacant second floor apartment at 19 Taylor Street in [the city of] Waterbury. The victim went to the apartment expecting Fuller to pay her $250. Fuller’s fellow gang members, including the defendant, were present at the apartment. Inside the apartment, several of the gang members, including the defendant, took turns open handedly hitting the victim on her breasts, buttocks and vagina, and engaged in oral intercourse with the victim for approximately one-half hour. ‘‘The victim was then moved to a second room. In this room, the defendant engaged in oral intercourse with the victim and vaginally penetrated the victim while wearing a black plastic convenience store bag on his penis. Also, in that room, several of the defendant’s fellow gang members engaged in oral, vaginal and anal intercourse with the victim. These events lasted for approximately one and one-half hours. Eventually, the victim left the apartment, wearing her clothes but leaving her shoes, cell phone and purse behind. Shortly thereafter, the victim went to Saint Mary’s Hospital in Waterbury, where she reported the sexual assault and the medical staff [examined her and utilized] a sexual assault evidence collection kit . . . .’’ (Footnote added.) State v. Wright, 144 Conn. App. 731, 733–34, 73 A.3d 828 (2013). Subsequently, the defendant was charged with, and foundguiltyof,twocountsofaggravatedsexualassault inthefirstdegreeinviolationofGeneralStatutes§ 53a70a(a)(4)andonecounteachofconspiracytocommit aggravatedsexualassaultinthefirstdegreeinviolation of General Statutes §§ 53a-70a (a) (4) and 53a-48 (a), conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (A) and 53a-48 (a), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and conspiracy to commitassaultinthethirddegreeinviolationof§§ 53a61 (a) (1) and 53a-48 (a).2 The trial court, Cremins, J., rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective term of twenty years of incarceration and ten years of special parole. The defendant appealed to the Appellate Court from the trial court’s judgment, claiming, first, that the trial court improperly had precluded him from introducing certain evidence of the victim’s prior sexual conduct, thereby violating his constitutional rights of confrontation and to present a defense. Id., 735–36. Second, the defendant claimed that his sentence on all three con
spiracycounts,whichwerebasedonasingleagreement with multiple criminal objectives, violated the double jeopardyclauseofthefederalconstitution.Id.,745.The Appellate Court rejected the defendant’s first claim, concluding that ‘‘[t]he record demonstrates that although the [trial] court initially precluded the [defense] from presenting evidence as to the victim’s prior sexual conduct, it later allowed the [defense] to present such evidence to the jury.’’ Id., 744–45. The Appellate Court did agree, however, with the defendant’sdoublejeopardyclaim.Seeid.,747.TheAppellate Court further concluded that, under State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), the proper remedy for such violation was to remand the case to the trial court with direction to vacate the judgment as to two of the conspiracy counts, to render judgment on one of theconspiracycounts,andtoresentencethedefendant accordingly.Statev.Wright,supra,144Conn.App.748– 49. The defendant and state each appealed from the Appellate Court’s judgment, and we granted certification in both appeals. The defendant claims that the Appellate Court incorrectly concluded that the trial courthadappropriatelylimited,underGeneralStatutes § 54-86f,3 his ability to present evidence of the victim’s priorsexualconduct.Initsappeal,thestatearguesthat the Appellate Court incorrectly concluded that vacatur was the appropriate remedy for the double jeopardy violation stemming from the sentence for the defendant’s conviction on the three conspiracy counts. After oral argument,we orderedsupplemental briefingin the defendant’s appeal. The parties were asked to brief (1) whether State v. DeJesus, 270 Conn. 826, 856 A.2d 345 (2004), should be overruled to the extent that it construed the term ‘‘material,’’ as used in § 54-86f (4), to refer to material in the constitutional sense rather than the evidentiary sense, (2) if the first question is answered in the affirmative, whether the trial court improperly excluded the challenged evidence, and, if so, whether such error is subject to harmless error analysis,and (3)ifquestions oneandtwo areanswered in the affirmative, whether the exclusion of the challenged evidence was harmless beyond a reasonable doubt. Additional facts and procedural history will be set forth as necessary. I We first address the defendant’s argument that the trial court violated his constitutional rights of confrontation and to present a defense through its application of§ 54-86f.Thedefendantcontendsthatthetrialcourt’s application of § 54-86f, the rape shield statute, improperly precluded defense counsel from questioning the victim in the presence of the jury about certain sexual conduct that closely preceded the Taylor Street incident, namely, (1) the victim’s offer to Fuller to have sexwithmultiplemen,formultiplehours,for$500,and (2) the victim’s act of engaging in consensual oral sex
with Fuller and his friend at a different residence on Wolcott Street in Waterbury for the promise of $250. The defendant argues that these lines of inquiry would have supported his defense theory that the Wolcott Street conduct was part of a larger, consensual, sexfor-hire transaction that extended to Taylor Street, and that the victim had fabricated allegations of sexual assault and other crimes after she was not paid for the transaction. His alternative defense theory was that he reasonably believed that the victim had consented to havingsexualrelationswithhimatTaylorStreet.Citing State v. DeJesus, supra, 270 Conn. 826, and Demers v. State, 209 Conn. 143, 547 A.2d 28 (1988), the defendant maintains that evidence of a victim’s prostitution may be relevant and material in a sexual assault case if consent is raised as a defense. Thus, the defendant argues that defense counsel should have received greater latitude in his examination of the victim under the exception to the rape shield statute providing that evidence of the sexual conduct of a victim may be admissible if it is ‘‘so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.’’ General Statutes § 54-86f (4). In his supplemental brief, the defendant further claims that this court incorrectly concluded in DeJesus that evidence mustbe material in the constitutional sense to be admissible under § 54-86f (4) and, therefore, should be overruled. Moreover, the defendantaversthattheexcludedevidencewasbothrelevant and material in an evidentiary sense and that its exclusion violated his constitutional rights of confrontation and to present a defense. Finally, the defendant claims that the state cannot demonstrate that such error was harmless beyond a reasonable doubt. In response, the state argues that defense counsel wasallowedtoquestionthevictimaboutthetwoaforementioned prostitution related topics and thus was not actuallyrestrictedfromdevelopingeitherofthedefense theories of consent.4 In its supplemental brief, the state agrees with the defendantthat DeJesus should be overruledinsofarasthiscourtheldthattheterm‘‘material,’’ in the context of § 54-86f (4), means material in the constitutional sense. Nevertheless, the state maintains that the trial court allowed defense counsel to question the victim and others regarding the $250 payment and the offer to engage in sexual activities for $500, and, thus, the court reasonably exercised its discretion and upheld the defendant’s constitutional rights. The state also claims that, even if the trial court improperly excludedtheevidence,sucherrorwasharmlessbeyond a reasonable doubt. A The record reveals the following additional facts and procedural history that are relevant to the resolution of this claim. On the first day of trial, the state com
menced its case by calling the victim as a witness. The victim testified before the jury to the following facts: On November 1, 2008, she went into a second floor apartment on Taylor Street because Fuller owed her moneyand toldherthatit wasinside.After sheentered the apartment, someone immediately locked the door behindher.Thedefendantandhisfellowgangmembers crowdedaroundthevictim,yelledcursesather,yanked at her clothes, and took turns openhandedly hitting her breasts,buttocks,andvagina.Thevictimwasfrightened and scared of being hurt, and complied with an order from Elizer Gibbs, who was the gang’s ringleader, to remove her clothes and to get on her knees. The defendant then made the victim perform oral sex on him. Five or six of the defendant’s fellow gang members similarly forced the victim to have oral sex with them. The victim later went into a different room where Gibbs urinated on her face and body. The defendant thentookaplasticbagfromthefloor,coveredhispenis with it, and vaginally penetrated the victim. The victim explained that this felt as though ‘‘there [were] a thousandknivesin[her]vagina.’’Othergangmembersthereafter took turns having compelled oral, vaginal, and analsexwiththevictim.Theyalsopenetratedthevictim with sex toys that they found in her purse. The gang members tried to convince a nearby woman, Yamile Rivera, to partake in penetrating the victim with the sex toys, but Rivera rebuffed their efforts and instead punched the victim in the face. At one point, while the victim was with the gang members,sheusedhercellphonetocallafriend,Catherine Jortner. The victim was allowed to make the call, while being monitored on speakerphone, after she told everyone that ‘‘another girl would come up and . . . join the fun . . . .’’ When no one appeared to be paying attention, the victim told Jortner, ‘‘I need help . . . .’’ One of the gang members noticed this cry for help, however,and‘‘tookthecellphoneandsaidintoit,‘your friend’s about to get fucked up,’ and then threw the phone against the wall.’’5 Eventually, after being forced to engage in additional sexual activities, the victim was allowed to take a cigarette break on a second floor porch. On the porch, someone commented that they could be the victim’s ‘‘pimp . . . .’’ Gibbs interrupted the victim’s cigarette break by telling her, ‘‘get back in the house, we’re not done with you yet.’’ Members of the gang resumed forcing the victim to have various forms of sex but complained that her vagina was dry. Someone then inserted a forty ounce beer bottle into the victim’s vagina and poured beer inside of her. The victim later saw Fuller in a bathroom and remarked that what had happened ‘‘was really messed up,’’ to which Fuller responded that ‘‘it wasn’t supposed to go downlikethat.’’Sheexplainedthatsheunderstoodthat to mean ‘‘that his friends got out of control and that they weren’t supposed to do that.’’
Finally, the victim was able to dress and leave Taylor Street but was in such a hurry to do so that she left her shoesand otherpersonal belongingsbehind. Asthe victimwalkedhome,thedefendantfollowedher,asking if she ‘‘like[d] what happened in there?’’ The victim, who was crying, replied, ‘‘no,’’ and the defendant proceeded to taunt her by telling male bystanders that she would ‘‘get [them]off’’ for $20. Whenshe arrived home, the victim toldthree different friends thatshe had been rapedandneededtogotothehospital.Thevictimwent to Saint Mary’s Hospital later that night, where she was examined and the police were contacted. The victim’s direct examination concluded with her testimony that she never consented to having any form of sex with the defendant, or anyone else, while she was at Taylor Street. During cross-examination of the victim,6 defense counsel attempted to ask her why Fuller owed her money.Aftertheassistantstate’sattorney(prosecutor) objected to that question on the ground that it was covered by a motion in limine, the trial court excused thejuryfromthecourtroom.Defensecounselexplained that, although he had not filed any response to the state’s motion in limine, he was raising consent as a defenseandwishedtoquestionthevictimaboutcertain prior sexual conduct pursuant to § 54-86f (4). Under the circumstances, the trial court determined that it was necessary to hold a rape shield hearing before the jury returned. During the hearing, the victim testified that, prior to going to Taylor Street, she had a conversation with Fuller in which she had offered to have sex with him and three other people for four hours in exchange for $500. The victim further testified that, ultimately, she engaged in sexual activities with Fuller and another person at Wolcott Street for the promise of $250. Fuller did not have any money when those sexual activities concluded, however, and took the victim to Taylor Street. On the way, Fuller explained that there would be three or four other people at Taylor Street, but the victim did not believe that there was a plan for her to have sex with them. After hearing this testimony and argumentsfromthestateandthedefense,thetrialcourt determined that there wasan insufficient offer of proof to establish the victim’s consent to engage in sexual relations with the defendant or the defendant’s reasonable belief that such consent had occurred. Consequently, the trial court ruled that questions about the victim’s prior sexual conduct at Wolcott Street would be precluded until the defense presented an adequate offer of proof as to consent. Later, during the state’s case-in-chief, the prosecutor sought to admit a redacted version of the defendant’s statement to the police into evidence. After excusing the jury from the courtroom, the trial court reviewed
the redacted text. This portion of the text stated that, after Fuller and the victim arrived at Taylor Street, Fuller had pulled the defendant aside to say ‘‘that he told this girl that he was gonna give her some money because he was with her all day, and she was giving himandanotherboyheadallday.’’Thetrialcourtfound that this text reflected the defendant’s knowledge that thevictimwasaprostituteandthusimplicatedtheissue of consent. The trial court ruled that, if the prosecutor wantedtoadmitthedefendant’sstatementtothepolice into evidence, he needed to do so using a version that was not redacted. Once the jury returned, a complete version of the defendant’s statement to the police was read into evidence. It included the following admissions: ‘‘[A]round Halloween, I was over on Taylor Street . . . chilling with my homies. . . . [We] are all ‘Bloods.’ . . . While we was there, another guy that is a Blood showed up, he is [Fuller], and he was with [the victim]. . . . Then [Fuller] grabbed me aside and said that he told this girl that he was gonna give her some money because he waswithherallday,andshewasgivinghimandanother boy head all day. Giving head means getting oral sex. I heard [Fuller] tell this girl that the money he owes her is upstairs on the second floor but I knew he was lying to her because he told me that and I also know that the second floor is a vacant apartment. The girl kept asking him for the money, so we all went up to the second floor . . . . The whole time this was going on the girl thought she was gonna get her money, but [Fuller] was telling all of us that we was gonna fuck this girl. . . . I was the first one to get my dick sucked. [Gibbs] told the girl to suck me first. . . . Then [Gibbs] was telling us all to smack her ass, so we all took turns doingit.Thereasonwedowhat[Gibbs]saysisbecause he is a General in the Bloods, which means he is in charge . . . . I know she didn’t like us smackin her ass because she told us it hurt and to stop. [Gibbs] told her to shut up and take it. . . . ‘‘After some time, I started to fuck this girl from behind. I didn’t have a rubber so I used a black plastic bag . . . . Then this girl said she wanted to call a friend . . . to come over. She said that her friend would want to do this too. While she was on her cell phone, [Gibbs] snatched the phone from her and threw it. . . . Then I grabbed the . . . girl and put her head on my dick so she would suck it. . . . Then the other guys took turns telling this girl that she better suck their dicks . . . . We kept telling her that she likes it. I could tell at this point that this girl wasn’t liking this and she started to look scared. . . . Then [Gibbs] found some [sex toys] in this girl’s pocketbook and took them out and started to use them on the girl. . . . Then the girl was on her knees and [Gibbs] told her to open her mouthand,whensheopenedhermouth,[Gibbs]pissed in her mouth and all over her. . . . [Gibbs] was telling
[Rivera] to smack the girl but [Rivera] just punched her in the face. We were all trying to get [Rivera] to mess around with this girl . . . . The . . . girl then said that she was scared and afraid that we was gonna kill her. We was telling her that we ain’t gonna kill her but we wanna fuck her. I told her to shut up and put my dick in her mouth, so she did. . . . [W]e wasn’t letting her leave until we were done with her. . . . [Later on, someone] put a [forty ounce] bottle of beer in the girl’s [vagina]. . . . Then the girl left and walked down the street. A few minutes after she left Taylor Street, I left too. . . . [A]s I walked by her, I asked her if she liked what happened, and she was like, ‘no.’ I could see she was crying real hard. I didn’t say nothing else and just kept walking and I went home.’’ Subsequently, the prosecutor called Steven Garrett, one of the defendant’s fellow gang members who was present at 19 Taylor Street on November 1, 2008. In large part, Garrett’s testimony was consistent with the undisputed facts. In his brief, however, the defendant claims that ‘‘Garrett testified that [the victim] had not been forced to engage in sex’’ and ‘‘consented’’ to the sexualacts.ThischaracterizationofGarrett’stestimony is generous. Garrett testified that he personally did not forcethevictimtohaveoralsexandthatsheseemingly ‘‘accepted’’ having sexual relations with others ‘‘at first . . . .’’ Indeed, Garrett disclaimed any knowledge as to whether the defendant had forced the victim to engage in any sexual acts. Garrett also testified that the victim lookedafraid afterGibbsurinated onher.While hewas in the apartment, Garrett did not think that the victim was free to leave because Gibbs would not have let her.Infact,throughoutthecourseofthesexualassault, Garrettlefttheapartmentatleastthreetimes,and,upon returning each time, the apartment door was locked. Garrettfurthertestifiedthat,duringthevictim’scigarette break, he talked to the victim about ‘‘pimping’’ her. Specifically, he said ‘‘she don’t need to be doing what she’s doing at that moment in time to get money when I know people, older guys, that get . . . Social Security [Income] checks . . . that would . . . give more for less.’’ The victim did not respond to Garrett. Later, Garrett took credit for pouring beer into the victim’s vagina and laughing about it. The prosecutor also called Fuller as a witness, who gave inconsistent testimony regarding what the victim knewpriortoandwhenarrivingatTaylorStreet.Fuller initially testified that he brought the victim to Taylor Street with assurances that she would be paid after she ‘‘[took] care of [his] boys . . . .’’ Fuller then refreshed his memory with a copy of his statement to the police, however, and repeatedly testified that the victim was unaware that she was being brought to Taylor Street to have sex.7 Near the conclusion of his testimony, Fuller clarified that there was no preexisting arrange
ment for the victim to have sex with the gang members atTaylorStreetformoney;rather,thevictimwasmerely expectingtoretrievea$250paymentthere.Withoutthe victim’sknowledge,however,Fullerhadcalledaheadto two gang members at Taylor Street and told them that hewasbringing thevictimovertohavesex.8 Inhisown words, Fuller’s ‘‘whole intention [was] for [the victim] to go there and [to] have sex with them,’’ and he ‘‘set the whole thing up without her know[ledge] [of that intention] . . . .’’ Fuller testified that, following the victim’s arrival at Taylor Street, she was forced to give the defendant oral sex at Gibbs’ urging.9 According to Fuller, Gibbs was swearing and angrily saying things like ‘‘give them head, have sex with us or you’re not going nowhere.’’ Fuller verified that the victim was urinated on, penetrated with a plastic bag, and penetrated with a fortyounce beer bottle. Fulleralso testified that, duringthevictim’ssubsequentcigarettebreak,thegang memberstoldthevictimthatshecouldleave,butFuller ‘‘could tell by [her] facial expression and by her voice . . . she was a little scared [that], if she left, something would happen to her.’’ Eventually, Fuller encountered the victim in the bathroom immediately before she departed and told her that ‘‘it wasn’t supposed to go down like that.’’ The defense commenced its case by recalling the victim as a witness. The victim testified that she had toldFullerthatshewould‘‘dosomestufffor500bucks.’’ As defense counsel attempted to explore this topic through questioning, the prosecutor objected, and the trial court excused the jury from the courtroom. The victim then explained that the $500 was supposed to be compensation for activities on Wolcott Street. She also reiterated that Fuller had told her that she could collect $250 at Taylor Street. The victim testified that she had no intention of having sexual relations with the men at Taylor Street and that she had received no payment for doing so. Interjecting, the trial court explained that it was not persuaded that the Wolcott Street and Taylor Street incidents were part of a single transaction, and ruled that asking the victim about her prior sexual conduct on Wolcott Street would not be allowed pursuant to § 54-86f. The jury returned, and defense counsel continued questioningthevictim.Shedeniedevermakinganoffer to Fuller to have sex with multiple people at Taylor Street for $250 or $500. When the victim was asked, more generically, if she had a conversation with Fuller duringwhich‘‘$500cameupasafeefor[her]services,’’ she responded, ‘‘[r]ight, for Wolcott Street.’’ Using a copy of the victim’s statement to the police, defense counsel attempted to refresh her recollection with respecttothedetailsofthisconversationaboutthe$500 fee,butthetrialcourtinterruptedandagainexcusedthe jury. Defense counsel explained that, in the victim’s statementtothepolice,shehaddescribedtellingFuller
‘‘he could do whatever he wanted for four hours [for $500].’’ The trial court cautioned that, ‘‘[t]o the extent that the $500 related to discussions at Wolcott Street, I am not allowing that.’’ Defense counsel then called Fantasia Daniels as the final defense witness. Daniels testified that she saw the victim at Taylor Street on the night of the incident and, moreover, that the victim had said that she was there ‘‘forsexwiththeguys.’’AccordingtoDaniels,thevictim stated that ‘‘[s]he [had] to use her [sex] toys to get started’’ and seemed to like what had transpired because she was smiling during the cigarette break. Daniels testified that, at the end of the night, the victim asked Fuller where her $250 was. After Fuller replied ‘‘there’s no [$250],’’ the victim said she was going to report the matter to the police.10 After this questioning of Daniels, the defense rested its case. B Prosecutions for sexual assault are governed by special rules of evidence, including § 54-86f. That statute ‘‘wasenactedspecificallytobarorlimittheuseofprior sexual conduct of an alleged victim of a sexual assault becauseitissuchhighlyprejudicialmaterial.’’(Internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 176, 777 A.2d 604 (2001). In enacting § 54-86f, the legislature intended to ‘‘[protect] the victim’s sexual privacy and[shield the victim] fromundue harassment, [encourage] reports of sexual assault, and [enable] the victim to testify in court with less fear of embarrassment. . . . Other policies promoted by the law include avoidingprejudice tothe victim,jury confusion andwasteoftimeoncollateralmatters.’’(Citationomitted; internal quotation marks omitted.) State v. Christiano,228Conn.456,469–70,637A.2d382,cert.denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994). Thus, to determine whether the prostitution related evidence was properly excluded, we must begin our analysis with the relevant language of the rape shield statute. Section 54-86f prohibits a defendant from presenting evidence of an alleged sexual assault victim’s prior sexual conduct, ‘‘unless such evidence is [among other things] . . . otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.’’ General Statutes § 54-86f (4). In State v. DeJesus, supra, 270 Conn. 841–42, we addressed the meaning of ‘‘material’’ in the context of § 54-86f(4).Inthatcase,weconcludedthatsubdivision (4) of § 54-86f referred to the constitutional standard for materiality, and, relying on United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), and United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87L. Ed.2d481(1985), heldthatevidence wasmaterial only ‘‘if, considering the case without the excluded evi
dence, there is a probability sufficient to undermine confidence in the guilty verdict.’’ State v. DeJesus, supra, 842. In the present case, we consider whether DeJesus was correct on this point. The defendant and the state both argue that DeJesus should be overruled insofar as it held that § 54-86f (4) refers to materiality in the constitutional sense. The defendant claims that the plain language of the statute demonstrates that the legislature was referring to nothing more than the ordinary test for the admissibility of evidence, namely, that the evidence is relevant and material,andthatevidenceismaterialintheevidentiary sense ‘‘if it is of consequence to the determination of the action.’’ He further asserts that such a reading of the statute is supported by the legislative history. In addition, the defendant contends that our current readingofthestatuteplacestrialcourtsinthenearlyimpossible position of having to apply an appellate standard of review at trial. Similarly, the state claims that ‘‘material’’ is a legal term of art with two plausible meanings, namely, materiality in the constitutional sense or materiality in the evidentiary sense, and that the structure of the rape shield statute supports the inference that the legislature intended to refer to material in the evidentiary sense. The rape shield statute establishes four exceptions to the inadmissibility of an alleged victim’s prior sexual conduct. The first three cover specific types of sexual conduct evidence11 and the fourth is a catchall exception that allows for the admission of unspecified sexual conduct evidence. The first three exceptionstotherapeshieldstatute,theargumentgoes, reflect the legislature’s judgment as to what types of sexual conduct evidence are material, whereas the fourthexceptionallowsfortheadmissionofothertypes of sexual conduct evidence after materiality has been established.12 The state claims that there is nothing to suggest that the legislature intended it to be more difficult to introduce evidence under the fourth exception than it is under the first three exceptions. Theinterpretationoftheterm‘‘material’’isaquestion of statutory construction. When construing a statute, we strive to determine the legislative intent, and, in doing so, we begin with the text of the statute. See, e.g., State v. Smith, 317 Conn. 338, 347, 118 A.3d 49 (2015); see also General Statutes § 1-2z. If the legislature’s intent is clear from the statute’s language, our inquiry ends.See State v. Smith, supra, 346–47.If, however,thestatuteisambiguousoritsplainmeaningyields an absurd result, we go on to consider extratextual evidenceofitsmeaning,suchasthestatute’slegislative history, the circumstances surrounding its enactment, the legislative policy the statute implements, and the statute’s relationship with existing legislation and common-law principles. E.g., State v. LeFleur, 307 Conn. 115, 126, 51 A.3d 1048 (2012).
The relevant text of § 54-86f (4) provides: ‘‘In any prosecution for sexual assault . . . no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . otherwise so relevant and materialtoacriticalissueinthecasethatexcludingitwould violate the defendant’s constitutional rights.’’ The statutedoesnotdefinetheterm‘‘material.’’Generally,when a statutory term is not defined, we presume that it was intended to have its ordinary meaning as expressed in standard dictionaries. See, e.g., State v. LaFleur, supra, 307Conn.128.Inthepresentcase,however,webelieve that ‘‘material’’ is a legal term of art because it is used inconjunctionwith‘‘relevant’’andisfoundinanevidentiary statute. Thus, we will look to legal dictionaries and authorities to ascertain its meaning. Around the time § 54-86f was enacted in 1982; see Public Acts 1982, No. 82-230; Black’s Law Dictionary defined ‘‘material’’ as: ‘‘[i]mportant; more or less necessary; having influence or effect; going to the merits; having to do with matter, as distinguished from form. Representation relating to matter which is so substantial and important as to influence party to whom made ismaterial.’’(Internalquotationmarksomitted.)Black’s Law Dictionary (5th Ed. 1979) p. 880. The fifth edition of Black’s Law Dictionary also provided the following definition for ‘‘material evidence’’: ‘‘That quality of evidencewhichtendstoinfluencethetrieroffactbecause ofitslogicalconnectionwiththeissue.Evidencewhich has an effective influence or bearing on question in issue is material. . . . Materiality of evidence refers to pertinency of the offered evidence to the issue in dispute. . . . Material evidence is evidence which is material to question in controversy, and which must necessarily enter into the consideration of the controversy, and which by itself or in connection with other evidence is determinative of the case.’’ (Citations omitted; internal quotation marks omitted.) Id., p. 881. In light of the foregoing definitions, we might conclude that § 54-86f (4) refers to the evidentiary standard of ‘‘material,’’ that is, evidence is material when it has an influence, effect, or bearing on a fact in dispute at trial. That is not, however, the only plausible definition. The law has given ‘‘material’’ another meaning as well, as we noted in DeJesus. See State v. DeJesus, supra, 270 Conn. 841–42. In DeJesus, we adopted the United States Supreme Court’s constitutional standard for materiality in determining the meaning of material in § 54-86f (4). Id., 841. Under the constitutional standard, ‘‘[e]vidence is material only if there is a reasonable probability that, had the evidence been [presented at trial], the result of the proceeding would have been different.’’ Id., quoting United States v. Bagley, supra, 473 U.S. 682 (opinion announcing judgment). Because there are two plausible meanings of ‘‘material’’ in the context of § 54-86f (4), we also must consider extratex
tual evidence, specifically, the circumstances surrounding the enactment of § 54-86f, the statute’s legislative history, and the policy objectives that § 54-86f was intended to implement. See, e.g., State v. LaFleur, supra, 307 Conn. 126. It is important to understand the state of the law when the rape shield statute was enacted. See, e.g., State v. Fernando A., 294 Conn. 1, 19, 981 A.2d 427 (2009) (‘‘the legislature is presumed . . . to know the state of existing relevant law when it enacts a statute’’ [internal quotation marks omitted]). In 1978, this court decided State v. Mastropetre, 175 Conn. 512, 400 A.2d 276 (1978), in which the defendant, Michael Mastropetre, argued that the trial court improperly ruled that a sexual assault victim did not have to answer defense counsel’s question regarding whether she had had sexual relations with men other than Mastropetre prior to the assault. Id., 514. On direct examination, the victim was asked if Mastropetre had achieved an orgasm during the assault, to which she replied: ‘‘ ‘I think so.’ ’’ Id. Then,duringcross-examination,defensecounselasked the victim whether she was certain that Mastropetre had an orgasm. Id. The victim responded that she was not sure. Id. Defense counsel then asked the victim if, prior to the assault, she had had sexual relations, to which she responded ‘‘ ‘With him? No.’ ’’ Id. She was then asked, ‘‘ ‘[w]ith anyone else?’ ’’ Id. She replied: ‘‘ ‘Thathasnothingtodowiththis.WhyshouldIanswer that?’ ’’ Id. The trial judge agreed that the victim did not have to answer the question. Id. Onappeal,Mastropetrearguedthatthevictim’sprior sexual conduct was relevant to the issues of consent and the victim’s credibility. Id., 515, 518. We first concluded that the evidence was not admissible as to the issue of consent because Mastropetre denied engaging in sexual conduct with the victim, and, therefore, consent was not truly at issue. Id., 516. Moreover, we acknowledged that the victim’s prior sexual conduct with people other than Mastropetre was irrelevant to consent because ‘‘[t]he fact that a [victim] may have consented to sexual relations with others before does not, without more, tend to establish that consent was given on the occasion in question.’’ Id., 517. Wenextconsideredwhethersuchevidencewasrelevantinweighingthevictim’scredibility.Seeid.,518–20. Webeganbydividingthatquestionintotwoissues:‘‘(1) whether the question [posed by defense counsel] was admissible to impeach the [victim], and (2) whether it was admissible to clarify the source of semen found in the [victim] on the night of the alleged crime . . . .’’ Id., 518. On the issue of impeachment, we concluded that, as a general rule, a victim’s sexual conduct does not ‘‘reflect [on] his or her credibility,’’ and, therefore, evidenceofsuchconductisnotadmissibleforimpeachment purposes. Id., 518–19. We did note, however, an
exception to that general rule. When a victim testifies regarding her chastity prior to the assault, a defendant is entitled to test that statement during cross-examination. Id., 518. As to Mastropetre’s second credibility argument, namely,clarificationregardingthesourceofthesemen, we approved of his reasoning: ‘‘[Mastropetre’s] reasoning is correct: that is, had [defense counsel] asked whether the [victim] had had sexual relations with someone other than [Mastropetre] at any time within the two or three days prior to the assault, the question wouldhavebeen[proper]ontheissueofwhether[Mastropetre] wasresponsible for the semen,raising doubts as to the [victim’s] credibility.’’ Id., 519. Defense counsel’squestionwasnotlimitedtotheperiodimmediately precedingtheassault,however,andwethusdetermined that the exclusion of the question was proper. See id., 519–20.Furthermore,wenotedthatevidenceregarding the semen was not admitted until after defense counsel’s question was asked. Id., 520. We also stated that it is ‘‘elementary’’ that the question would be improper under this theory until after evidence of the semen was presented. Id. Finally, Mastropetre asserted that barring defense counsel’s question regarding the victim’s prior sexual conduct violated his confrontation rights. Id. In resolving this claim, we recognized that due process requires thatacriminaldefendantbe affordedafairopportunity to present a defense and to confront the witnesses against him, and that excluding evidence offered by a defendant, even when such exclusion is in accord with evidentiary rules, infringes on these rights to some extent.Seeid.,520–21.Wefurthernoted,however,that, in cases in which courts had found that the exclusion of a defendant’s proffered evidence violated his due process and confrontation rights, ‘‘the excluded evidence was clearly relevant and material to a critical issue in the case.’’ Id., 521. Because we had determined that the evidence of the victim’s prior sexual conduct was not relevant to any issue in Mastropetre’s case, we concluded that the exclusion of defense counsel’s questionregardingsuchconductdidnotviolateMastropetre’s confrontation rights. Id. In summary, the following can be gleaned from our decision in Mastropetre. In a trial on sexual assault charges, the victim’s prior sexual conduct is generally not relevant to the issues and is therefore inadmissible. Evidence of such conduct is admissible, however, in some circumstances. Those circumstances include: (1) when there is evidence of semen in the victim and the victim is questioned about his or her sexual conduct with individuals other than the defendant in the days prior to the assault to prove the source of that semen; (2) the victim testifies regarding his or her prior sexual conductorchastity,andthedefendanttestssuchasser
tions on cross-examination; (3) consent is an issue at trial, and the defendant offers evidence of prior sexual conduct between the victim and the defendant; and (4) when excluding the evidence would violate the defendant’s right to confront witnesses and to present a defense.13 Also evident from Mastropetre is that we wereconcernedwithexcludingevidencethatwasmaterial, in the evidentiary sense, to a matter at issue. When we spoke of evidence being material, we spoke of its materiality to a critical issue, and not to the trial as a whole,aswedowhenweareconcernedaboutmateriality in a constitutional sense. We also noted that, when the defendant’s evidence is irrelevant or more prejudicial than probative, it could be excluded without violating his constitutional rights and without the need to considerwhethertheexclusionofsuchevidencewould undermine our confidence in the outcome of the trial. We presume, as we must, that the legislature was aware of Mastropetre when it enacted § 54-86f in 1982. See, e.g., State v. Fernando A., supra, 294 Conn. 19. Even without such a presumption, it is apparent that the statute was modeled after Mastropetre. For example, the four instances we have identified in which a victim’s sexual conduct can be admitted into evidence are the same exceptions codified in § 54-86f. Additionally,theOfficeofLegislativeResearchpreparedadocument that compared the proposed legislation that became § 54-86f to our decision in Mastropetre; Letter fromGeorgeCoppolo,ResearchAttorney,OfficeofLegislative Research, to Representative Alfred J. Onorato, Connecticut General Assembly (March 10, 1982); and, in a letter to the Judiciary Committee, the Office of the Chief State’s Attorney noted that the proposed legislation was consistent with our decision in Mastropetre. Letter from Austin J. McGuigan, Chief State’s Attorney, Office of the Chief State’s Attorney, to Members of the Judiciary Committee (September 22, 1982). Therefore, it seems likely that the legislature, when it codified subdivision (4), used material in the same manner we did,namely,theevidentiarysense.Thereisnoevidence that the legislature intended to modify our holding in Mastropetre. In fact, Senator Howard T. Owens, Jr., in callingforthepassageoftherapeshieldstatute,stated: ‘‘The history of it is that there was case law that kind ofleftthiswithsomeambiguityandwewantedtobring this to a head.’’ 25 S. Proc., Pt. 10, 1982 Sess., p. 3250. Thus, it appears that § 54-86f was intended to clear up whateverambiguitiesthelegislaturefoundinMastropetre and not to modify or supersede that decision. Our construction of the term ‘‘material’’ also is supported by a close look at the legislative history of § 5486f. Section 54-86f was enacted in 1982 through the passage of No. 82-120 of the 1982 Public Acts (P.A. 82120). When P.A. 82-120 was discussed on the floor of the Senate, Senator Owens made clear that the intent of the bill was to ensure that a victim of sexual assault
couldnotbequestionedabouthisorhersexualconduct when such conduct was irrelevant to the issue at trial, specifically, whether the alleged sexual assault had occurred. See 25 S. Proc., supra, pp. 3249–50. Senator Owens noted that such evidence would be admissible, however, when it was so ‘‘relevant and material to a critical issue of the case that excluding it would violate thedefendant’sconstitutionalrights.’’Id.,p.3249.Senator Owens illustrated this exception: ‘‘For example, if an individual were to claim . . . as part of his defense that the person that he had the contact with was in fact a prostitute and then there was later a claim of rape or a situation where someone was hanging around an [A]rmybaseoran[A]ir[F]orcebaseandenticedpeople into these types of situations that would be one of the situations that would call for constitutional confrontation and due process would require that.’’ Id. On the House floor, Representative Onorato noted that P.A. 82-120 dealtwith the admissibility of evidence concerning a sexual assault victim’s prior sexual conduct and outlined three instances in which such evidence would be admissible, referring to what would becomesubdivisions(1),(2),and(3)of§ 54-86f.25H.R. Proc., Pt. 11, 1982 Sess., p. 3532. He further explained: ‘‘There’s also protection . . . for the violation of constitutional rights . . . .’’ Id. Consideration of these statements leads us to conclude that it is difficult to imagine that the term ‘‘material’’ meant anything other than material in the evidentiary sense. Neither Senator Owens nor RepresentativeOnoratodescribedasituationinwhichcourts would consider whether the exclusion of prior sexual conduct evidence would change the outcome of the trial or undermine confidence in the verdict. In fact, Senator Owens gave an example that is particularly instructive in the present case. He explained that evidence suggesting that a sexual assault victim was a prostitute would be admissible under the exception codified in subdivision (4) because the exclusion of such evidence would violate the defendant’s constitutional rights to due process and confrontation.14 See 25 S. Proc., supra, p. 3249. In DeJesus, we decided ‘‘that § 54-86f (4) refers to materiality in its constitutional sense’’ with little explanation. State v. DeJesus, supra, 270 Conn. 842. Indeed, we did not even consider the other plausible meaning of ‘‘material’’ discussed in this opinion. Instead, we chose to follow the definition for material evidence provided in United States v. Bagley, supra, 473 U.S. 682(opinionannouncingjudgment),withoutexplaining why. State v. DeJesus, supra, 841. We did not engage in our normal process of statutory construction, and § 1-2zwasnevermentioned,eventhoughitwasineffect at that time.15 Moreover, the construction of § 54-86f (4) set forth
in DeJesus yields an unworkable result, and the court seemed to acknowledge as much. See id., 842 n.17. Under the construction we gave the term ‘‘material’’ in that case, trial courts are left to decide, either prior to or during trial, whether the exclusion of a particular piece of evidence will, in the event that the trial results in a guilty verdict, undermine the court’s confidence in that verdict. This is a precarious position for a trial court. First, there will not yet be a guilty verdict when the court is ruling on the admissibility of the evidence under § 54-86f (4). Second, the court is asked to determine whether the evidence would affect the trial’s outcome before all the evidence has been presented and all thetestimony heard,making itdifficult todetermine the impact that the proffered evidence might have on thetrial.Third,implicitinDeJesusisaperplexingproposition. In that case, we appear to suggest that the trial courtcouldcommiterrorbyexcludingevidencethatthe constitutionrequires thecourttoadmit and,thereafter, determine the harmfulness of the court’s error. Finally, DeJesus directs trial courts, when making an evidentiary ruling, to consider the impact a single piece of evidence may have on a case, a task we have never before asked trial courts to conduct when making evidentiary rulings. Instead, the analysis required by DeJesus is typically reserved for appellate courts, after all the trial evidence has been introduced, a record created, and a verdict reached. In sum, in light of the statute’s text and legislative history,alongwiththeunworkableresultthatthecourt in DeJesus reached, we conclude that DeJesus improperly construed § 54-86f (4) and now overrule that decision to the extent that it determined that ‘‘material’’ refers to the constitutional standard for materiality. Instead, we hold that the legislature intended material to refer to the evidentiary standard, that is, evidence is material when it has an influence, effect, or bearing on a fact in dispute at trial. In addition, we overrule DeJesus insofar as the court in that case held that ‘‘an evidentiary ruling that excludes evidence properly admissible under § 54-86f (4) . . . requires reversal with no additional evaluation of harm . . . .’’ Id., 845. C Wenowturntothefactsofthepresentcase.Because the state contends that defense counsel was not prevented from questioning the victim with respect to the defendant’stheoriesofconsent,wemustmakeathreshold determination as to whether the trial court used the rape shield statute to limit the questioning of the victim in the presence of the jury about the following sexual conduct: (1) the victim’s offer to Fuller to have sexwithmultiplemen,formultiplehours,for$500;and (2) the victim’s act of engaging in consensual oral sex with Fuller and his friend at Wolcott Street for the promise of $250. Our review of the record reveals that,
following the initial rape shield hearing, the court was steadfast in its ruling that defense counsel could not question the victim in the presence of the jury about her sexual conduct that took place prior to the Taylor Street incident. At multiple points during the victim’s testimony before the jury, defense counsel posed questions regarding the two prostitution related topics. At eachofthesepoints,thetrialcourtultimatelysustained theprosecutor’sobjectionsto thequestionsorexcused the jury from the courtroom. The closest defense counsel came to being able to explore the first prostitution related topic with the victim in the presence of the jury was when the victim testified that she told Fuller that she would ‘‘do some stuff for 500 bucks’’ and that she had a conversation with Fuller in which $500 came up as a fee ‘‘for [her] services . . . .’’ This vague testimony does not, however, reflect specifically whether the victim expressed a willingness, shortly before the Taylor Street incident, to have sexual relations with multiple partners for multiple hours. Moreover, defense counsel was unable to question the victim in the presence of the jury about the second prostitution related topic, namely, her act of engaging in consensual oral sex with Fuller and his friend at Wolcott Street for the promise of $250. Accordingly, we agree with the defendant that defense counsel was prevented, by virtue of the trial court’s application of the rape shield statute, from pursuing his desired lines of inquiry before the jury with respect to the victim’s prior sexual conduct. Having determined that defense counsel was indeed precluded from questioning the victim in the presence of the jury about certain sexual conduct, we must proceed to consider whether such testimony was so relevant and material to a critical issue in this case— namely, actual consent or a reasonable belief of consent—that precluding the testimony amounted to a violation of the defendant’s constitutional rights. See GeneralStatutes§ 54-86f(4).‘‘Determiningwhetherevidence is relevant and material to critical issues in a caseisaninherentlyfact-boundinquiry.Relevance[and materiality depend] on theissues that must be resolved at trial, not on the particular crime charged.’’ (Internal quotation marks omitted.) State v. DeJesus, supra, 270 Conn. 837. ‘‘Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . In considering whether evidence [is] sufficiently relevanttofallunderoneoftheexceptionsenumerated
in § 54-86f, we have drawn a distinction between, on theonehand,evidencethatisrelevanttoestablishsome portion of the theory of defense or [to] rebut some portion of the state’s case . . . and, on the other hand, evidence that is offered as an impermissible attempt to establishthevictim’sgeneralunchastecharacter[which is] prohibited by [§ 54-86f].’’ (Internal quotation marks omitted.) State v. Shaw, 312 Conn. 85, 104–105, 90 A.3d 936 (2014). We first underscore that the defense did not offer this sexual conduct evidence to establish the victim’s ‘‘general unchaste character . . . .’’ (Internal quotation marks omitted.) Id., 105; see also id., 104 (‘‘the defendant bears the burden of showing that the proffered evidence . . . [is] relevant to the case, rather than . . . relevant merely to demonstrate the unchaste character of the victim’’ [internal quotation marks omitted]). Moreover, the defense did not argue that the victim’s unchastecharacterwasrelevanttothejury’sdetermination of her credibility. See Demers v. State, supra, 209 Conn. 156–57 (‘‘[i]t is . . . generally held that a witness’ reputation for being unchaste or a prostitute, or her prioractsof sexualmisconductarenot,inand ofthemselves, relevant to her credibility or veracity as a witness’’). Instead, as defense counsel explained during the initial rape shield hearing, he was seeking to show that the victim negotiated and willingly consummated a multipartner, multihour, sex-for-hire transaction that began at Wolcott Street and ended after the ensuing intercourse with the defendant at Taylor Street. Later, outside of the presence of the jury, defense counsel also attempted to support this theory of actual consent byestablishingthatthevictimhadamotivetofabricate her allegations of sexual assault and other crimes because she had not been paid for the transaction at the end of the night. The defense’s theory of actual consent harmonized with the proffered evidence. Defense counsel did not attempttoelicittestimonyof thevictim’spriorconduct asaprostitutethatwasunrelatedtothechargesagainst the defendant. Instead, the defense wanted the jury to hear that the victim, shortly before arriving at Taylor Street, (1) offered to engage in sexual relations with Fuller and three other men for four hours in exchange for$500,and(2)engagedinconsensualsexualrelations with Fuller and his friend for the promise of $250. The proffered evidence had a strong temporal connection with the sexual assault and showed that the victim’s offer to engage in a multipartner, multihour, sex-forhire transaction was made to Bryan Fuller, the individual who accompanied her to Taylor Street. There can be no doubt that this excluded testimony makes the defendant’s wholesale transaction theory of consent more probable. These two pieces of information could suggest that the victim brokered a consensual prostitution deal with Fuller that was only partially performed
at WolcottStreet, withan expectationthat moresexual relationsandcompletepaymentwouldfollowatTaylor Street.16 Moreover, the excluded testimony also was relevant to the defendant’s claim that the victim had fabricated her allegations. Without the testimony that the victim had offered to engage in sexual relations with multiple men, there was no evidence that would explain to the jury why she may have fabricated the sexual assault allegations as a result of not receiving the promised $250. See State v. DeJesus, supra, 270 Conn. 840 (‘‘[e]vidence suggesting a motive for a false allegation was relevant to the jury’s assessment of the victim’s credibility’’). Next, we address the materiality of the evidence. Material evidence is evidence that has an influence, effect, or bearing on a fact in dispute at trial. See part I B of this opinion. As we just noted, the proffered evidence was relevant to the question of whether the sexual conduct on Taylor Street was a continuing, sexfor-hire transaction. In turn, whether the sexual relations on Wolcott and Taylor Streets were part of a continuous transaction influences or bears on the critical issue in the case, namely, whether the victim consented to the sexual conduct with the defendant at Taylor Street or, alternatively, whether the defendant could reasonably have so believed that she had done so. Thus, because the evidence has a bearing on the critical issue of consent, it is material. Our conclusion that the excluded testimonial evidencewasrelevantandmaterialdoesnotendouranalysisastowhetheritshouldhavebeenadmittedpursuant to § 54-86f (4). That provision also demands that the exclusion of such evidence deprive the defendant of a constitutionally protected right. See General Statutes § 54-86f (4).17 It is fundamental that the defendant’s rights to confrontthewitnessesagainsthimandtopresentadefense are guaranteed by the sixth amendment to the United States constitution. The sixth amendment provides in relevantpart:‘‘Inallcriminalprosecutions,theaccused shall enjoy the right . . . to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor . . . .’’ ‘‘A defendant’s right to present a defense is rooted in the compulsory process and confrontation clauses of the sixth amendment . . . . See, e.g., Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986). Furthermore, the sixth amendment rights to confrontation and to compulsory process are made applicable to state prosecutions through the due process clause of the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) (right to confrontation); see Washington v. Texas, 388 U.S. 14, 18, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (right to compulsory process).’’ (Internal
quotation marks omitted.) State v. West, 274 Conn. 605, 622–23 n.26, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005). In plain terms, the defendant’s right to present a defense is ‘‘the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.’’ (Internal quotation marks omitted.) Id., 624. It guarantees ‘‘the rightto offerthe testimonyof witnesses,andto compel their attendance, if necessary . . . .’’ (Internal quotation marks omitted.) Id. Therefore, exclusion of evidence offered by the defense may result in the denial of the defendant’s right to present a defense. See, e.g., State v. Crespo, 303 Conn. 589, 604, 35 A.3d 243 (2012); State v. Christiano, supra, 228 Conn. 474 The right of confrontation is ‘‘the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and animportantfunctionofcross-examinationistheexposure of a witness’ motivation in testifying. . . . Crossexamination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . ‘‘Impeachmentofawitnessformotive,biasandinterest may also be accomplished by the introduction of extrinsic evidence. . . . The same rule that applies to the right to cross-examine applies with respect to extrinsic evidence to show motive, bias and interest; proofofthemainfactsisamatterofright,buttheextent of the proof of details lies in the court’s discretion. . . . The right of confrontationis preserved if defense counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . ‘‘Although it is within the trial court’s discretion to determine the extent of cross-examination and the admissibility of evidence, the preclusion of sufficient inquiryintoaparticularmattertendingtoshowmotive, biasandinterestmayresultinaviolationoftheconstitutional requirements [of the confrontation clause] of the sixth amendment.’’ (Internal quotation marks omitted.) State v. Baltas, 311 Conn. 786, 798–99, 91 A.3d 384 (2014). These sixth amendment rights, although substantial, do not ‘‘suspend the rules of evidence . . . .’’ (Internal quotation marks omitted.) Id., 799; see also State v. Hedge, 297 Conn. 621, 634, 1 A.3d 1051 (2010). A court is not required to admit all evidence presented by a defendant; nor is a court required to allow a defendant to engage in unrestricted cross-examination. See, e.g., Statev.Baltas,supra,311Conn.799.Instead,‘‘[a]defendant is . . . bound by the rules of evidence in pre
senting a defense . . . .’’ (Internal quotation marks omitted.) State v. Hedge, supra, 634. Nevertheless, ‘‘exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights . . . .’’ (Internal quotation marks omitted.) Id. ‘‘Thus, [i]ftheprofferedevidenceisnotrelevant[orconstitutes inadmissible hearsay], the defendant’s right[s] to confrontation [and to present a defense are] not affected, andtheevidencewasproperlyexcluded.’’(Internalquotation marks omitted.) State v. Baltas, supra, 799; see also State v. Mastropetre, supra, 175 Conn. 521 (‘‘The defendant’s right to confront witnesses against him is notabsolute,butmustbowtootherlegitimateinterests in the criminal trial process. . . . Such interests are implicitinatrialcourt’sacceptedright,indeed,duty,to exclude irrelevant evidence . . . .’’ [Citations omitted; internal quotation marks omitted.]).18 There are special considerations in sexual assault prosecutions that trial courts must keep in mind when rulingontheadmissibilityofevidence,suchasshielding an alleged victim from embarrassing or harassing questions regarding his or her prior sexual conduct. See, e.g., State v. Christiano, supra, 228 Conn. 469–70. ‘‘Althoughthestate’sinterestsinlimitingtheadmissibility of this type of evidence are substantial, they cannot bythemselvesoutweigh[a]defendant’scompetingconstitutional interests.’’ Id., 470. As we previously have observed, evidentiary rules cannot be applied mechanistically to deprive a defendant of his constitutional rights. E.g., State v. Hedge, supra, 297 Conn. 634. ‘‘We must remember that [t]he determination of whetherthestate’sinterestsinexcludingevidencemust yield to those interests of the defendant is determined by the facts and circumstances of the particular case. . . . In every criminal case, the defendant has an important interest in being permitted to introduce evidence relevantto hisdefense. Evidenceis notrendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant facteventoaslightdegree,[as]longasitisnotprejudicial or merely cumulative. . . . Whenever the rape shield statute’s preclusion of prior sexual conduct is invoked, a question of relevancy arises. If the evidence is probative, the statute’s protection yields to constitutional rights that assure a full and fair defense. . . . If the defendant’s offer of proof is . . . more probative to the defense than prejudicial to the victim, it must be deemed admissible at trial. . . . When the trial court excludes defense evidence that provides the defendant with a basis for cross-examination of the state’s witnesses, [despite what might be considered a sufficient offer of proof] such exclusion may give rise to a claim ofdenialoftheright[s]toconfrontationandtopresenta defense.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Rolon, supra, 257 Conn. 176–77.
In the present case, the defendant advanced a single, continuoustransactiontheoryofthecase:(1)thevictim offered to engage in sexual relations with Fuller and threeothermeninexchangefor$500;(2)shortlybefore arriving at Taylor Street, the victim engaged in oral sex with Fuller and one other man at Wolcott Street; and (3) Fuller and the victim came to Taylor Street to continue the bargained for transaction. The evidence that thedefenseprofferedwas,aswepreviouslynoted,relevant and material to a single, continuous transaction theory. By excluding the evidence, however, the trial courtpreventedthedefensefrompresentingitsversion of the events to the jury, in violation of the defendant’s right to present a defense. See, e.g., State v. Hedge, supra,297Conn.634(‘‘inplaintermstherighttopresent a defense [is] the right to present the defendant’s version of the facts . . . to the jury’’ [internal quotation marks omitted]). More troubling, the excluded testimony was the only evidence the defense presented to support its theory of the case. Therefore, the exclusion of such testimony completely foreclosed the ability of the defense to present this version of the events to the jurors.19 Additionally, the defense theory related to a central and critical question before the jury, namely, whether the victim consented to the sexual conduct at Taylor Street. Accordingly, we conclude that the defendant’s right to present a defense was violated when the trial court excluded the foregoing evidence. See id., 636–37. We further conclude that the trial court’s restriction of defense counsel’s cross-examination of the victim limited his ability to explore her possible motive for fabricating her claims of sexual assault, in violation of the defendant’s right of confrontation. See, e.g., State v. Baltas, supra, 311 Conn. 798 (‘‘[c]ross-examination to elicit factstending to show motive,interest, bias and prejudice is a matter of right and may not be unduly restricted’’ [internal quotation marks omitted]). Testimony that the victim had not been paid for sexual conduct, particularly if such admission came from the victim herself, would have allowed the jury to weigh the victim’s credibility and to consider her possible motive for fabricating her allegations. We recognized the defendant’s right to explore this possible motive in DeJesus. See State v. DeJesus, supra, 270 Conn. 840. In that case, counsel for the defendant, Luis DeJesus, Jr., who was charged with sexual assault, wanted to question the victim about ‘‘whether she had engaged in prostitution, whether she had told an investigating officer that she had engaged in prostitution, and whether [DeJesus] was aware that she had engaged in prostitution.’’ Id., 831. Defense counsel sought to offer the testimony to establish that the sex with DeJesus was consensual and to show the victim’s motive for fabricating the sexual assault claim. Id., 833–34. The defense claimed that the victim had fabricated the
charges because, when she demanded $50 after the sexual relations had concluded, DeJesus gave her only $30 and refused to pay her the balance. See id., 832–34. The trial court excluded the evidence, and we concluded that such exclusion was improper. Id., 834–35. We reasoned that, ‘‘without evidence of the victim’s priorhistory ofprostitution,the juryheard noevidence toexplainwhyshewouldhavehadareasontofabricate a sexual assault allegation against [DeJesus].’’ Id., 840. Similarly,inthepresentcase, withoutthevictim’stestimony that she was owed $250 for engaging in sexual conduct with Fuller, a confederate of the defendant’s, and another person, the jury was without the proper contextual framework to evaluate the victim’s testimony. The evidence that the defense proffered, through the testimony of the victim, was both relevant and material to a critical issue in this case, namely, consent. Moreover,theexclusionofthatevidencedeprivedthedefendant of his constitutional rights of confrontation and to present a defense. Thus, we conclude the excluded evidence was admissible under § 54-86f (4)20 and that the trial court abused its discretion by excluding such evidence.21 As with all improper evidentiary rulings of constitutional proportion, we now must consider whether the exclusion of the evidence was harmless beyond a reasonable doubt. See, e.g., State v. Shaw, supra, 312 Conn. 102. ‘‘Whether such error is harmless in a particular case depends [on] a number of factors, such as the importance of the witness’ testimony in the prosecution’scase,whetherthetestimonywascumulative,thepresenceorabsenceofevidencecorroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. . . . If the evidence may have had a tendency to influence the judgment of the jury,itcannotbeconsideredharmless.’’(Internalquotation marks omitted.) Id. After a complete and thorough review of the record, we conclude that the trial court’s error was harmless beyond a reasonable doubt. We first observe that the defense had available to it other means of directly testing the victim’s credibility. Indeed, defense counsel questioned the victim in the presence of the jury more than one-half dozen times about whether she had intendedtocollectmoneyinexchangeforhavingsexual relations at Taylor Street. Every time, the victim responded to the various permutations of that question with the answer ‘‘no.’’ Second, Fuller’s testimony, although equivocal at first, also refutes the existence of an agreement on the part of the victim to engage in prostitution at Taylor
Street. In fact, he testified that the $250 he owed the victim was not for sex on Taylor Street. In addition, Fuller admitted that it was his intention that the victim have sex withhis fellow gang membersat Taylor Street but that the victim was not aware of that intention. Instead, she accompanied him to Taylor Street under the false pretense that it was there that she would receive the money he owed her. Third, during the assault, the victim called a friend, namely, Jortner. Both the victim and Jortner testified that, during the call, the victim stated that she needed help,after whichthephonewas takenanda malevoice exclaimed, ‘‘ ‘your friend’s about to get fucked up . . . .’ ’’ Jortner also testified that the victim sounded scared during the call and that, after the call, she attempted to repeatedly reach the victim, but her calls went directly to voice mail. The occurrence of this call also was corroborated by the defendant’s statement to the police, which was admitted into evidence. Fourth, the victim’s testimony was not the sine qua non of the state’s case, nor was this case a credibility contest between the victim and the defendant. Indeed, the victim’s testimony was largely uncontradicted and, in fact, supported by the testimony of the defendant’s confederates, Garrett and Fuller, and the defendant’s own statement to the police. Moreover, the defendant, through his statement, and Garrett and Fuller, in their testimony, all acknowledged that the victim appeared to be scared. For example, the defendant admitted to the police that he could tell ‘‘that this girl wasn’t liking this and she started to look scared’’ and that the victim said ‘‘she was scared and afraid that we was gonna kill her.’’ Fifth, Garrett testified that, when the victim and the other men first entered the second floor apartment at 19TaylorStreet,heremainedoutsidewithafewothers. When he did decide to enter, the apartment door was locked. Subsequently, Garrett left the apartment on three separate occasions, and, when he returned each time, the door was locked. Sixth, and perhaps most damaging, the defendant, in hisstatementtothepolice,statedthathe‘‘grabbed[the victim] and put her head on [his] dick so she would suckit.’’Healsosaid,‘‘[t]he[victim]keptasking[Fuller] for the money, so we all went up to the second floor [at Taylor Street] . . . . The whole time this was going on the [victim] thought she was gonna get her money, but [Fuller]was tellingall ofus thatwe wasgonna fuck this girl.’’ In addition, Fuller testified that the victim was forced to give the defendant oral sex at Gibbs’ urging. Even Garrett seemed to suggest that, at least at some point, the conduct was not consensual. Lastly, and importantly, defense counsel was not entirelyprecludedfromtesting whetherthevictimcon
sentedtoanactofprostitution,although,aswealready noted,hewasprecludedfromexploringthedefendant’s continuous transaction theory. Defense counsel was allowed to question the victim about whether the $250 she was owed was for sexual intercourse on Taylor Street. The victim also testified that she had made an offer to Fuller to ‘‘do some stuff for 500 bucks’’ and had a conversation with Fuller in which $500 came up as a fee ‘‘for [her] services . . . .’’In addition, the defendant’s statement to the police contained the following admission: ‘‘Then [Fuller] grabbed me aside and said that he told [the victim] that he was gonna give her some money because he was with her all day, and she was giving him and another boy head all day.’’ A jury couldreasonablyconclude,fromthevictim’stestimony and the defendant’s statement, that the victim had offered to engage in a sex-for-hire transaction. The defendant seems to concede as much in his brief: ‘‘Through the testimony [of] Fuller, Garrett and . . . Daniels,andthrough[thedefendant’s]policestatement, thejuryheardevidencetosupportareasonableconclusion that [the victim] was a prostitute who engaged in consensualsexualactswiththemenattheTaylorStreet apartment.’’ In light of all this evidence, we are convinced that the trial court’s error was harmless beyond a reasonable doubt. II DOUBLE JEOPARDY CLAIM We next address the state’s claim that the Appellate Court improperly concluded that, pursuant to State v. Polanco, supra, 308 Conn. 242, vacatur is the appropriate remedy for the double jeopardy violation caused by the defendant’s conviction of the three counts of conspiracy arising from a single agreement with multiple criminal objectives. As an initial matter, the state acknowledges that, under Connecticut law; see, e.g., State v. Ortiz, 252 Conn. 533, 559, 747 A.2d 487 (2000); it is a double jeopardy violation to impose cumulative punishments for conspiracy offenses if they arise from a single agreement with multiple criminal objectives.22 Furthermore, the state recognizes that, pursuant to the United States Supreme Court’s decision in Rutledge v. United States, 517 U.S. 292, 302, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996), a cumulative conviction can be a form of punishment in and of itself because it may lead a defendant to suffer adverse collateral consequences. With these concessions in mind, the state narrowly focuses its argument on the type of remedy that exists for the defendant’s conviction on the three conspiracy counts. Specifically, the state argues that ‘‘[t]his court should limit the reach of Polanco and . . . hold that, when a defendant receives multiple punishments for cumulativeconspiracyconvictionsarisingfromasingle agreement, merger, rather than vacatur, is the proper remedy . . . .’’ We disagree and conclude that the
Appellate Court properly determined that vacatur was the appropriate remedy for the defendant’s conviction on the three conspiracy counts. In Polanco, we readopted vacatur as the remedy for a cumulative conviction that violates double jeopardy protections. State v. Polanco, supra, 308 Conn. 248–49, 255. Although the holding in Polanco was limited to cases involving greater and lesser included offenses, in light of the issue presented, this court remarked in dictumthatitwas‘‘awareofnoreasonwhyourholding, oflogicalnecessity,wouldnotapplywithequalforceto otherscenariosinwhichcumulativeconvictionsviolate the double jeopardy clause . . . .’’ Id., 249 n.3. Since Polanco, we have ‘‘continue[d] to end our use of the merger approach’’ and have required that vacatur be utilized in other scenarios in which a defendant has been subject to cumulative convictions in violation of thedoublejeopardyclause.Statev.Miranda,317Conn. 741, 753, 120 A.3d 490 (2015); see also id., 743, 757 (vacating conviction as to felony murder and murder counts, which violated protection against double jeopardy, because they were cumulative of capital felony count). As we already have explained at some length, extendingthevacaturapproach‘‘promote[s]inter-jurisdictional and intra-jurisdictional harmony, and better safeguard[s] against unconstitutional multiple punishments.’’ Id., 753. Moreover, we continue to see ‘‘no substantive obstacle to resurrecting a cumulative conviction that was once vacated on double jeopardy grounds—provided that the reasons for overturning [a] controlling conviction would not also undermine the vacated conviction.’’

Outcome: Accordingly, we conclude that the Appellate Court correctly determined that the trial courtwasrequiredtovacatethedefendant’sconviction on two of the three conspiracy counts, to render judgment of conviction on one of the conspiracy counts, and to resentence him on that one conspiracy count. The judgment of the Appellate Court is affirmed.

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