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       STATE OF CONNECTICUT v. FREDDY T.*
                              (AC 41755)
               DiPentima, C. J., and Lavine and Bright, Js.**

                                  Syllabus

Convicted, after a jury trial, of two counts of risk of injury to a child in
   violation of statute (§ 53-21 (a) (1) & (2)), stemming from his alleged
   sexual abuse of his minor child, the defendant appealed to this court.
   Held that the trial court abused its discretion by admitting into evidence
   portions of the video recording of a forensic interview with the defen-
   dant’s child conducted by C, a licensed clinical social worker, because
   the child’s statements failed to satisfy the requirements of the medical
   diagnosis and treatment exception to the rule against hearsay as set
   forth in the Code of Evidence (§ 8-3 (5)): the state failed to adequately
   demonstrate that the statements were reasonably pertinent to obtaining
   medical treatment as the state could not demonstrate that the child
   understood C’s interview to be for medical treatment, the child had
   received medical care prior to the forensic interview and the record
   did not establish that the forensic interview was used to inform the
   subsequent medical examination of the child, and the basic purpose of
   the interview was for an investigative purpose; moreover, the court’s
   error was not harmless and substantially affected the jury’s verdict, as
   there was a lack of corroboration in the form of witnesses to the alleged
   sexual abuse or physical evidence, the child’s trial testimony was at
   times contradictory but also inconsistent with statements made during
   the forensic interview, and the fact that the jury deadlocked on a count
   of sexual assault in the first degree supported the conclusion that the
   admission of portions of the forensic interview played a significant role
   in the jury’s verdict of guilty of two counts of risk of injury to a child.
           Argued May 11—officially released October 6, 2020

                            Procedural History

   Substitute information charging the defendant with
one count of the crime of sexual assault in the first
degree and two counts of the crime of risk of injury to
a child, brought to the Superior Court in the judicial
district of Fairfield, geographical area number two, and
tried to the jury before Pavia, J.; verdict of guilty of
two counts of risk of injury to a child; thereafter, the
state entered a nolle prosequi as to the charge of sexual
assault in the first degree; subsequently, the court,
Pavia, J., rendered judgment in accordance with the
verdict, from which the defendant appealed to this
court. Reversed; new trial.
  Virginia M. Paino, certified legal intern, with whom
was James B. Streeto, senior assistant public defender,
for the appellant (defendant).
   Melissa E. Patterson, assistant state’s attorney, with
whom, on the brief, were Josephy T. Corradino, state’s
attorney, John C. Smriga, former state’s attorney, and
Colleen P. Zingaro, senior assistant state’s attorney, for
the appellee (state).
  Jennifer B. Smith filed a brief for the Connecticut
Criminal Defense Lawyers Association as amicus
curiae.
                           Opinion

  LAVINE, J. The defendant, Freddy T., appeals from
the judgment of conviction, rendered after a trial to a
jury, of two counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (1) and (2). On appeal,
the defendant claims that (1) the court improperly
admitted portions of a recording of a forensic interview
of the child under the medical treatment exception to
the hearsay rule that were harmful to him, (2) his con-
victions under both § 53-21 (a) (1) and (2) constitute
double jeopardy, and (3) the court abused its discretion
by declining to order disclosure of certain of the child’s
records following its in camera review of them. We
agree that the court improperly admitted portions of
the forensic interview of the child that constituted
harm. We, therefore, reverse the judgment of the trial
court.1
   The following facts and procedural history are rele-
vant to this appeal. On or about October 10, 2015, the
defendant allegedly engaged in sexual acts with his then
five year old daughter (child). The defendant allegedly
kissed her and touched her vagina and ‘‘butt.’’ The child
reported the defendant’s actions to her grandmother,
who called the police on October 19, 2015. The child
was taken to Bridgeport Hospital by ambulance, where
she was examined by Karen Della-Giustina, a physician
in the pediatric emergency department. That night, fol-
lowing Della-Giustina’s examination, the child was
interviewed by a hospital social worker, Abigail Alvarez-
Quiles, who inquired about the child’s family situation
and mental state. Alvarez-Quiles made a report to the
hotline for the Department of Children and Families
(department). The responding officer also contacted
the department and the Department of Social Services,
and referred the grandmother’s report to the depart-
ment’s Youth Bureau for further investigation. The child
was discharged from the hospital that night. The emer-
gency department report contained a general instruc-
tion from Della-Giustina to make an appointment with
the child sexual assault team.
  On October 23, 2015, the child was taken to the Center
for Family Justice (center), which provides forensic
interview services in sexual assault cases, where she
met with Brenda Concepcion, a licensed clinical social
worker and forensic interviewer, who conducted the
forensic interview that is at issue in the present case.
During the interview, the child identified the defendant
as her father and disclosed several instances of his
sexual conduct, including vaginal and anal penetration.
Following the forensic interview, Concepcion recom-
mended that the child receive mental health and psychi-
atric therapy services and have a forensic medical
examination.2
  The defendant was arrested on December 10, 2015.
On December 28, 2015, the defendant was charged in
a long form information with one count of sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (2) and one count of risk of injury to a child
in violation of § 53-21 (a) (2). The state later filed an
amended information, adding a second count of risk of
injury to a child under § 53-21 (a) (1).
   At trial, the following witnesses testified: Officer
Laura Azevedo-Rasuk, Della-Giustina, Concepcion, the
child, Detective Jessi Pizarro, and Danielle Williams.3
Concepcion testified both before and after the child tes-
tified.
  Prior to the trial, the state requested that the court
review a video recording of the forensic interview of
the child, indicating that it intended to offer portions
of it during the trial pursuant to the medical diagnosis
and treatment exception to the hearsay rule. The defen-
dant objected on the grounds that the exception did
not apply because medical treatment had concluded
and that the purpose of the interview was investigative
rather than medical. After Concepcion’s initial testi-
mony, the court heard argument on the state’s motion
and ruled that portions of the video recording were
admissible. After the child testified, portions of the
video of the forensic interview were shown to the jury.
   The jury found the defendant guilty of both counts
of risk of injury to a child. On the charge of sexual
assault in the first degree under § 53a-70 (a) (2), the
jury was deadlocked, and the court declared a mistrial.
The state then entered a nolle prosequi on the count
of sexual assault. The court accepted the jury’s verdict
and imposed a total effective sentence of eighteen years
in prison, execution suspended after twelve years, with
twenty years of probation and sexual offender registra-
tion upon release.4 This appeal followed. Additional
facts will be set out as necessary.
  On appeal, the defendant’s dispositive claim is that
the trial court abused its discretion by admitting into
evidence portions of the forensic interview of the child
conducted by Concepcion. We agree.
   We begin with the standard of review. ‘‘To the extent
[that] a trial court’s admission of evidence is based on
an interpretation of [our law of evidence], our standard
of review is plenary. . . . We review the trial court’s
decision to admit . . . evidence, if premised on a cor-
rect view of the law, however, for an abuse of discretion.
. . . The trial court has wide discretion to determine
the relevancy of evidence . . . . Thus, [w]e will make
every reasonable presumption in favor of upholding the
trial court’s ruling[s] . . . . In determining whether
there has been an abuse of discretion, the ultimate issue
is whether the court . . . reasonably [could have] con-
cluded as it did.’’ (Internal quotation marks omitted.)
Weaver v. McKnight, 313 Conn. 393, 426, 97 A.3d 920
(2014).
   ‘‘[E]videntiary rulings will be overturned on appeal
only where there was an abuse of discretion and a
showing by the defendant of substantial prejudice or
injustice. . . . In a criminal case, [w]hen an improper
evidentiary ruling is not constitutional in nature, the
defendant bears the burden of demonstrating that the
error was harmful . . . .’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) State v. Jor-
dan, 329 Conn. 272, 287–88, 186 A.3d 1 (2018).
‘‘[W]hether [an improper ruling] is harmless in a particu-
lar case depends upon a number of factors, such as the
importance of the witness’ testimony in the [defen-
dant’s] case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise per-
mitted, and, of course, the overall strength of the prose-
cution’s case. . . . Most importantly, we must examine
the impact of the . . . evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for
determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was
substantially swayed by the error. . . . Accordingly, a
nonconstitutional error is harmless when an appellate
court has a fair assurance that the error did not substan-
tially affect the verdict.’’ (Internal quotations marks
omitted.) State v. Fernando V., 331 Conn. 201, 215, 202
A.3d 350 (2019).
   The following additional facts inform our analysis.
Della-Giustina testified that the purpose of her physical
examination of the child on October 19, 2015, was ‘‘to
evaluate and address any urgent or acute needs such
as bleeding or medical conditions that are obvious.’’
She conducted a ‘‘head to toe’’ examination but only a
‘‘very cursory’’ examination of the child’s vaginal and
rectal area. She could not perform an extensive exami-
nation of those parts of the child’s body because the
child would not allow it. Despite this ‘‘quick peek,’’
which lasted approximately fifteen seconds, Della-Gius-
tina saw no bleeding or discharge and the child’s vagi-
nal/rectal region appeared normal, with ‘‘no evidence
of trauma or bleeding or bruising.’’5
   Thereafter, when Concepcion conducted the forensic
interview of the child on October 23, 2015, a multidisci-
plinary team comprised of Detective Michael Cantrell,
Kechia Sadler and Vanessa Torres from the department,
and Kayte Cwikla-Masas and Katherine Azana from the
Child Advocacy Center/Center for Family Justice,
observed the interview on a monitor.6 Prior to the inter-
view, members of this team provided Concepcion with
information regarding the allegations against the defen-
dant.7 Concepcion testified on direct examination that
the purpose of a forensic interview is ‘‘to obtain more
information for the investigation.’’ With respect to the
present case, Concepcion testified that the purpose of
the interview was to help the multidisciplinary team
determine how and if the investigation should go for-
ward. The interview was of interest to multiple parties,
including the department and the police. According to
Concepcion, part of her responsibility was to provide
recommendations for further treatment for the child
on the basis of the interview. Concepcion prepared a
written report of the interview that was placed into
evidence, which included a referral for follow-up mental
and physical treatment and examination.
   Conception also testified that a forensic interview
typically is utilized in cases involving allegations of
abuse of young children. The interview facilitates a
setting in which the child feels safe and comfortable
talking. She testified that forensic interviewers at the
center are trained to use an open-ended, rapport-build-
ing approach and to take into account the more limited
focus of younger children. Interviewers set ground rules
such as telling children that they can speak freely and
that they should tell the interviewer if they do not under-
stand something. In particular, Concepcion does not
‘‘use the words true or not true all the time but [tells]
the child if you don’t know an answer, just say I don’t
know.’’ At the beginning of her interview with the child,
Concepcion informed the child that ‘‘[she] could say
whatever [she] want[ed] in this room because [she was]
not in trouble with [her].’’ In addition, she told the child
that ‘‘we talk about things that are in this room we talk
about things that are true and we talk about safe, being
safe.’’ During the course of the interview, Concepcion
utilized anatomically correct dolls and diagrams of male
and female bodies, inviting the child to identify and
describe various body parts. During the interview, the
child disclosed details of the defendant’s abuse of her,
including vaginal and anal penetration. At one point,
Concepcion asked the child the name of her dad, and
the child gave a different name. When asked again, the
child gave the name ‘‘Freddy.’’ At the conclusion of the
interview, Concepcion asked the child about staying
safe and whether she had someone to talk to if she
felt unsafe or scared.8 Eleven days after the forensic
interview, on November 3, 2015, Janet Murphy, a pediat-
ric nurse practitioner at Yale New Haven Hospital, con-
ducted a forensic physical examination of the child.
Murphy viewed Concepcion’s summary report prior to
examining the child.
   The day before evidence began, following jury selec-
tion, the state made an oral proffer of evidence regard-
ing portions of the video recording of the forensic inter-
view under the medical diagnosis and treatment
exception to the hearsay rule.9 In its proffer, the state
referenced State v. Griswold, 160 Conn. App. 528, 127
A.3d 189, cert. denied, 320 Conn. 907, 128 A.3d 952
(2015), asserting that the proffered portions were rele-
vant to finding out ‘‘what happened to [the child] on
the physical and mental aspects of [the assault]’’ for
purposes of an ultimate medical diagnosis, and that a
foundation for the evidence could be laid via Concep-
cion’s testimony. The state provided the court with the
DVD of the interview and a transcript of the DVD’s
content to review, and the court heard argument regard-
ing the proffer the following day mid-evidence, prior
to the child’s testimony. In its offer of proof, the state
offered the evidence on the ground that Concepcion’s
interview obtained specific information about the alle-
gations that was reasonably pertinent to ensuring an
adequate follow-up medical examination. The defense
objected on the ground that the medical diagnosis and
treatment exception did not apply, given that the child
already had received medical treatment and the inter-
view was conducted for an investigative purpose. After
reviewing the relevant portions of the interview, the
court overruled the defendant’s objection, relying on
State v. Estrella J.C., 169 Conn. App. 56, 148 A.3d 594
(2016), and State v. Eddie N.C., 178 Conn. App. 147,
174 A.3d 803 (2017),10 to conclude that the forensic
interview was reasonably pertinent to the child’s physi-
cal and mental health treatment. The trial court
explained that the interview was pertinent to and moti-
vated by medical treatment because Concepcion had
referred the child for physical and mental follow-up
examinations and treatment, both of which the hearsay
exception covered, and that, as a result, the state had
shown a sufficient connection between the interview
and the follow-up treatment.11
   At trial, the child testified that, during the interview,
she had answered questions from Concepcion about
male and female body parts. The child testified that she
had told Concepcion that the defendant had touched
certain parts of her body. The state then offered the
previously identified portions of the forensic interview
video and the court admitted them as a full exhibit
pursuant to its prior ruling. During her trial testimony,
the child identified body parts she previously had identi-
fied during the forensic interview, naming eye, mouth,
hand, belly, butt, and hair. She responded in the affirma-
tive when the assistant state’s attorney asked her
whether ‘‘anybody touch[ed] those parts,’’ but
responded in the negative when asked, ‘‘Did anybody
put anything inside those parts?’’ The assistant state’s
attorney repeated the answer, and the child responded
‘‘[y]es.’’12 The child also testified that she visited the
defendant on weekends. She gave conflicting responses
when the assistant state’s attorney asked her if anything
happened when she went to see the defendant; initially
the child denied that anything happened and then
answered that the defendant had touched her in his
bedroom.13 The child testified that the defendant had
touched her ‘‘on’’ her pants, that the touching was
always on top of her clothes, and that it occurred more
than once. She testified that the defendant kissed her.
The child testified that the defendant had touched her
on the ‘‘inside,’’ pointing to the vaginal area on a diagram
held by the assistant state’s attorney. The defendant
also touched the child on her butt, ‘‘inside.’’ The child’s
clothes were on, and the touching was ‘‘[i]n [the child’s]
clothes.’’ The child denied that she had seen the defen-
dant with his clothes off. The jury then viewed the
portions of the forensic interview, which contained the
child’s descriptions of the defendant’s vaginal and anal
penetration. The child confirmed that she talked to Con-
cepcion.
   On appeal, the defendant claims that at trial the court
improperly admitted portions of the forensic interview
under the medical diagnosis and treatment exception
to the hearsay rule because the interview focused on
aiding the police investigation and not on medical treat-
ment for the child. The defendant argues that medical
treatment for the child had concluded by the time the
interview was conducted.14 The state argues pursuant
to the standard set out in Griswold, as well as Estrella
J.C., that the child’s statements in response to Concep-
cion’s questions were reasonably pertinent to obtaining
medical treatment even though the interview also aided
in the investigation. At trial, the state relied on Concep-
cion’s testimony that the interview involved ‘‘multiple
interests,’’ that Concepcion referred the child for psy-
chological and physical follow-up treatment, and that
Conception asked the child if she had someone to talk
to if she felt unsafe. On this basis, the state argues that
it had laid a proper foundation to admit the child’s
statements on the extent and specifics of the defen-
dant’s assault under § 8-3 (5) of the Connecticut Code
of Evidence because they were necessary to enable a
fully effective forensic medical examination. We agree
with the defendant, that portions of the interview at
issue should not have been introduced into evidence
and shown to the jury.
  We begin our analysis by setting forth the relevant
legal principles and applicable standard of review. ‘‘We
review the trial court’s decision to admit evidence, if
premised on a correct view of the law . . . for an abuse
of discretion. . . . In other words . . . after a trial
court has made the legal determination that a particular
statement is or is not hearsay, or is subject to a hearsay
exception . . . it [becomes] vested with the discretion
to admit or to bar the evidence based upon relevancy,
prejudice, or other legally appropriate grounds related
to the rule of evidence under which admission is being
sought.’’ (Internal quotation marks omitted.) State v.
Griswold, supra, 160 Conn. App. 536.
   ‘‘Hearsay is an out-of-court statement offered for the
truth of the matter asserted and generally is inadmissi-
ble. . . . The rules of evidence, however, recognize
that certain out-of-court statements warrant an excep-
tion to the general rule that hearsay constitutes inadmis-
sible evidence.’’ (Citations omitted.) State v. Michael
T., 194 Conn. App. 598, 611, 222 A.3d 105 (2019). The
medical diagnosis and treatment exception to the hear-
say rule is codified in § 8-3 (5) of the Connecticut Code
of Evidence: ‘‘A statement made for purposes of
obtaining a medical diagnosis or treatment and describ-
ing medical history, or past or present symptoms, pain,
or sensations, or the inception or general character of
the cause or external source thereof, insofar as reason-
ably pertinent to the medical diagnosis or treatment.’’
Admissibility of such statements turns on whether ‘‘the
declarant was seeking medical diagnosis or treatment,
and the statements are reasonably pertinent to achiev-
ing those ends.’’ (Internal quotation marks omitted.)
State v. Cruz, 260 Conn. 1, 8, 792 A.2d 823 (2002).
‘‘[S]tatements made by a sexual assault victim to a social
worker who is acting within the chain of medical care
may be admissible under the medical treatment excep-
tion to the hearsay rule.’’ Id., 10. ‘‘The rationale underly-
ing the medical treatment exception to the hearsay rule
is that the patient’s desire to recover his [or her] health
. . . will restrain him [or her] from giving inaccurate
statements to a physician employed to advise or treat
him [or her].’’ (Internal quotation marks omitted.) Id.,
7. ‘‘The term ‘medical’ encompasses psychological as
well as somatic illnesses and conditions.’’ State v. Tel-
ford, 108 Conn. App. 435, 440, 948 A.2d 350, cert. denied,
289 Conn. 905, 957 A.2d 875 (2008).
   ‘‘[S]tatements may be ‘reasonably pertinent’ . . . to
obtaining medical diagnosis or treatment even when
that was not the primary purpose of the inquiry that
prompted them, or the principal motivation behind their
expression.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) State v. Griswold,
supra, 160 Conn. App. 552–53. ‘‘Although [t]he medical
treatment exception to the hearsay rule requires that
the statements be both pertinent to treatment and moti-
vated by a desire for treatment . . . in cases involving
juveniles, our cases have permitted this requirement to
be satisfied inferentially.’’ (Citation omitted; internal
quotation marks omitted.) State v. Telford, supra, 108
Conn. App. 441–42; see id., 443 (child’s testimony sup-
ported inference that she understood statements to
social worker were for treatment purposes); see also
State v. Donald M., 113 Conn. App. 63, 71, 966 A.2d 266
(2009) (interviewer’s statements supported inference
that child understood interview’s medical purpose, even
though child testified that she did not remember), cert.
denied, 291 Conn. 910, 969 A.2d 174 (2009).
   In Manuel T., this court defined the test for determin-
ing the admissibility of hearsay statements under § 8-
3 (5) of the Connecticut Code of Evidence.15 See State
v. Manuel T., 186 Conn. App. 51, 61–62, 198 A.3d 648
(2018), cert. granted in part, 330 Conn. 968, 200 A.3d
189 (2019). ‘‘[T]he statements of a declarant may be
admissible under the medical treatment exception if
made in circumstances from which it reasonably may
be inferred that the declarant understands that the
interview has a medical purpose. Statements of others,
including the interviewers, may be relevant to show the
circumstances.’’ (Emphasis altered; internal quotation
marks omitted.) Id., quoting State v. Abraham, 181
Conn. App. 703, 713, 187 A.3d 445, cert. denied, 329
Conn. 908, 186 A.3d 12 (2018). In Manuel T., this court
explained that ‘‘the focus of the medical treatment
exception is the declarant’s understanding of the pur-
pose of the interview . . . .’’ (Emphasis added.) State
v. Manuel T., supra, 62. Accordingly, ‘‘the inquiry must
be restricted to the circumstances that could be per-
ceived by the declarant, as opposed to the motivations
and intentions of the interviewer that were not apparent
to the declarant.’’ Id. This focus accords with the ratio-
nale for the medical diagnosis and treatment exception
that patients are motivated to speak truthfully to their
medical care providers when their own well-being is
at stake.
   Under our case law, the state need only show that
the forensic interview had a medical purpose that the
declarant reasonably understood. See State v. Manuel
T., supra, 186 Conn. 61–62; State v. Abraham, supra,
181 Conn. App. 713. This court on numerous occasions
has upheld the admission of forensic interviews where
the purpose of the interview was primarily investigative.
See, e.g., State v. Manuel T., supra, 186 Conn. App.
63–64; State v. Eddie N.C., supra, 178 Conn. App. 173;
State v. Estrella J.C., supra, 169 Conn. App. 77–78; State
v. Griswold, supra, 160 Conn. App. 552–53. The issue
in the present case, therefore, turns on whether the five
year old child, the declarant, understood the interview
to have a medical purpose. See State v. Manuel T.,
supra, 62.
   We conclude that the state has not demonstrated,
on the basis of the interview’s content, that the child
understood that Concepcion’s interview was for medi-
cal treatment purposes. Our review of the interview
supports the conclusion that the basic purpose of the
interview was ‘‘to obtain more information for the inves-
tigation,’’ as Concepcion testified. Because the medi-
cally-oriented content was in fact de minimis, the child
would not have understood the interview to be anything
but investigative, if she understood its purpose at all.
The interview was focused on determining what had
happened, until its conclusion where Concepcion con-
veyed ‘‘brief safety messages’’ to the child, and referred
her for psychiatric therapy and a further forensic exami-
nation following the interview. The state argued before
the trial court that Concepcion’s inquiries about the
alleged assault served the medical purpose of gathering
information for the subsequent physical examination
to which Concepcion referred the child. The trial court
agreed, ruling that the interview had a medical purpose
in addition to the investigative, ‘‘borne out by the fact
that then [Concepcion] does refer the [child] for these
two types of treatments . . . .’’ The test, however, is
what the declarant understands, not what the interview-
er’s motivation is. See State v. Manuel T., supra, 186
Conn. App. 62. Unlike Donald M., where the child was
told in advance ‘‘that she would be meeting with some-
one at the hospital who would help her deal with what
she went through and determine whether she needed
therapy or other medical treatment statements’’; State
v. Donald M., supra, 113 Conn. App. 71; the record does
not show that the child understood the interview to
relate to medical treatment or that it would lead to
follow-up medical treatment in the present case. At oral
argument, the state argued that, even though Concep-
cion’s inquiry about the child’s safety did not occur
until the end of the interview, it still helps inform the
conclusion that the child understood previous portions
of the interview to relate to medical treatment. We find
this argument unpersuasive. The brief medical content
at the interview’s conclusion was insufficient to give
the questioning that preceded it a reasonably pertinent
medical purpose.16
   Second, the fact that the child had been examined
at the hospital prior to the time the forensic interview
was conducted weighs against the inference that the
child understood the interview’s purpose to be medical.
Della-Giustina examined the child when she was taken
to the hospital. Afterward, Alvarez-Quiles, the hospital
social worker, interviewed the child. Concepcion’s
interview occurred four days after the child had com-
pleted her immediate medical treatment. Moreover, the
subsequent forensic medical examination at Yale-New
Haven Hospital occurred eleven days after the inter-
view. Thus, the timing of examinations does not support
an inference that the child would have understood that
the forensic interview was in the service of continuing
medical treatment.
   In its ruling, the court in the present case relied on
State v. Estrella J.C., supra, 169 Conn. App. 56, and
State v. Eddie N.C., supra, 178 Conn. App. 147, both of
which are distinguishable from the present case on the
basis of not only interview content but also contextual
timing. In Estrella J.C., this court noted, in upholding
the forensic interview’s admission under the hearsay
exception, that the child was undergoing treatment for
post-traumatic stress disorder resulting from the defen-
dant’s acts at the time the interview occurred and that
‘‘the physical examination of the [child] was informed
by the forensic interview,’’ given that the pediatric nurse
practitioner had met with the forensic interviewer prior
to the physical examination to obtain medical history
and other relevant details. State v. Estrella J.C., supra,
169 Conn. App. 80. Because the timing and context
supported the inference that the child was seeking med-
ical treatment and the interview reasonably was perti-
nent to medical treatment, this court concluded that
the court properly admitted the child’s statements even
though many of the questions asked of the child per-
tained to what had happened between the child and
the defendant. The forensic interview at issue in the
present case, on the contrary, did not occur in conjunc-
tion with medical treatment but followed the child’s
physical examination, and the record does not establish
that it was used directly to inform the subsequent exam-
ination to the extent that the forensic interview was
used in Estrella J.C.
   In Eddie N.C., the trial court admitted statements
from the child, A, made to a clinical social worker at
the Yale Child Sexual Abuse Clinic. State v. Eddie N.C.,
supra, 178 Conn. App. 169. A preliminary interview was
conducted ‘‘so that [Lisa] Pavlovic [a physician] could
fully understand the nature of the complaint before her
examination.’’ Id., 168. The trial court determined that
‘‘the fact that at least one purpose of the interview was
to aid . . . Pavlovic in her follow-up examination of A
was sufficient to qualify A’s statements under the medi-
cal diagnosis and treatment exception.’’ Id., 169. The
follow-up examination’s purpose was ‘‘to determine
whether A’s injuries had healed.’’ Id., 168. This court
found the statement was admissible because ‘‘the pur-
pose of [Monica] Vidro’s interview was to help . . .
Pavlovic better understand the nature of A’s complaint
so that . . . Pavlovic could conduct a thorough medi-
cal examination of A.’’ Id., 173. In the present case,
Concepcion’s referral did not occur until after the con-
clusion of the forensic interview, and the facts do not
support an inference that the child was aware that she
was being interviewed to determine whether and what
kind of medical and psychological follow-up treatment
may be recommended. Moreover, the child in the pres-
ent case made no physical or emotional complaints to
Conception. Unlike Concepcion’s interview, the inter-
view in Eddie N.C. demonstrated a clearer inference
that the child in that case would have understood it
pertained to medical treatment.
   Finally, the focus on the understanding of the declar-
ant that there is a medical purpose for the interview
remains even when the declarant is a young child. The
law in Connecticut is that, although statements made
by young children are admissible under the medical
diagnosis and treatment exception to the hearsay rule,
the principle holds true that ‘‘[s]tatements made [in
sexual assault cases] . . . reciting history, causation,
and the identity of the person causing the injury should
be scrutinized to ensure that they are generated for the
proper purpose, namely treatment and not litigation.’’
E. Prescott, Tait’s Handbook of Connecticut Evidence
(6th Ed. 2019) § 8.17.4 (b), p. 569, citing State v. DePas-
tino, 228 Conn. 552, 566 n.10, 638 A.2d 578 (1994).
‘‘Because of the difficulty of ascertaining a child’s sub-
jective understanding of the purpose for which the
statement was made, the court should identify indicia
of reliability before admitting such statements.’’ E. Pres-
cott, supra, § 8.17.2, p. 567, citing State v. Juan V., 109
Conn. App. 431, 445-47, 951 A.2d 651 (2000); State v.
Donald M., supra, 113 Conn. App. 71. Consequently, our
case law recognizes that the age of a child sometimes
necessitates allowing an inference, rather than direct
evidence, to conclude that the declarant understood
the purpose of the interview to be medical. See, e.g.,
State v. Griswold, supra, 160 Conn. App. 556; State v.
Telford, supra, 108 Conn. App. 442. The need for reliabil-
ity remains no less important, however, and the trial
court’s responsibility to consider it prior to admitting
the evidence is implicit in the rationale for the medical
diagnosis and treatment exception. The rationale of
§ 8-3 (5) of the Connecticut Code of Evidence is that
reliability stems from a declarant’s motivation to be
truthful with medical care providers. See, e.g., State v.
Cruz, supra, 260 Conn. 7. This court recently iterated
that the exception looks objectively to whether a rea-
sonable declarant would understand that the interview
had a medical purpose. See State v. Manuel T., supra,
186 Conn. App. 64 n.15 (‘‘In addition, whether the infor-
mation provided by the declarant ultimately is deter-
mined to be true, false, or inconsistent has never been
the test to determine whether the statement should be
admitted in the first place. Again, the test focuses on
the declarant’s understanding of the purpose for the
interview, not the adverse party’s attacks on the verac-
ity of the statements made during the interview.’’) Other
courts similarly have held that a foundation regarding
the declarant’s understanding is required when dealing
with the medical diagnosis and treatment hearsay
exception even with young children. ‘‘In cases involving
very young children, who do not seek medical treatment
by themselves but instead are brought to the physician
by someone else, there must be evidence that the child
understood the physician’s role in order to trigger the
motivation to provide truthful information.’’ United
States v. Barrett, 8 F.3d 1296, 1300 (8th Cir. 1993).
In Indiana, ‘‘courts have recognized that alleged child
victims might be too young for a fair presumption they
understood the medical purpose, and have required a
foundation that they had this understanding.’’ Hoglund
v. Neal, 959 F.3d 819, 834 (7th Cir. 2020). The defendant
cites VanPatten v. State, 986 N.E.2d 255, 265 (Ind. 2013),
which is instructive. Citing Barrett, the court in VanPat-
ten held that ‘‘[s]uch young children may not understand
the nature of the examination, the function of the exam-
iner, and may not necessarily make the necessary link
between truthful responses and accurate medical treat-
ment. In that circumstance, there must be evidence
that the declarant understood the professional’s role
in order to trigger the motivation to provide truthful
information.’’ (Internal quotation marks omitted.) Id.,
261. The child in the present case was five years old at
the time of the forensic interview. There was no evi-
dence, direct or indirect, that she understood that there
was a medical purpose for the forensic interview. In
the absence of such evidence, the jury should not have
been permitted to see and hear the child during the
forensic interview.
   Having demonstrated that the trial court abused its
discretion when it admitted portions of the forensic
interview of the child into evidence, we turn to whether
the court’s error was harmful. Examining the evidence
here, we cannot conclude, with a fair assurance, that
the trial court’s abuse of discretion did not substantially
affect the jury’s verdict. In the present case, the state’s
case turned on the credibility of the five year old child.
Given the absence of witnesses to the alleged sexual
assault and the lack of physical evidence relating to it,
the state relied on the video of the forensic interview
and the testimony of the child to establish the facts of
the charged conduct. In 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’’; State v. Fernando V., supra, 331 Conn. 216;
weakens the state’s case. See id., 216–17 (finding exclu-
sion of defense witness testimony harmful where case
turned on the testimony of state’s witness); see also
State v. Favoccia, 306 Conn. 770, 809, 51 A.3d 1002
(2012) (describing sexual assault cases that turn on
complainant’s credibility as not particularly strong);
State v. Grenier, 257 Conn. 797, 807–808, 778 A.2d 159
(2001) (‘‘state’s case rested entirely on S’s credibility
. . . inasmuch as S’s version of the events provided
the only evidence of the defendant’s guilt, the state’s
case was not particularly strong’’). In the present case,
Della-Giustina testified that the child’s intimate parts
appeared normal, with no evidence of trauma, and the
state did not produce any witnesses to the abuse apart
from the child herself. Contra State v. Eddie N.C., supra,
178 Conn. App. 174 (noting that any error was harmless
because ‘‘the overall strength of the state’s case was
high,’’ with physical evidence of abuse and corroborat-
ing witness who testified to defendant’s abuse).
   This was a close case. The jury was deadlocked on
the count of sexual assault and found the defendant
guilty of only the charges of risk of injury to a child.
See State v. Favoccia, supra, 306 Conn. 813 (‘‘[I]t is
highly significant that . . . the jury subsequently was
unable to reach a verdict on the charge of sexual assault
in the second degree, but found the defendant guilty
of two counts of risk of injury. That circumstance alone
indicates that the case was a close one in the eyes of the
jury, making it more likely that the improper evidence
might have tipped the balance.’’) As in Favoccia, the
jury’s inability to reach a verdict on the sexual assault
charge in the present case supports the conclusion that
the forensic interview’s admission played a significant
role in the jury’s verdict of guilty of two counts of risk
of injury to a child.
   Finally, the video portions of the forensic interview
were a significant factor in the jury’s determination,
because the portions provided the most damaging evi-
dence of the defendant’s alleged abuse of the child.17
The jury heard testimony about the interview from both
Concepcion and the child, and then had an opportunity
to watch the interview itself. The portions of the inter-
view shown to the jury contained the child’s allegations
to Concepcion, which were not fully corroborated by
her trial testimony. In the forensic interview, the child
stated that the defendant had put his penis inside her
vagina and butt ‘‘a lot.’’ At trial, however, the child
initially denied that anyone had put anything inside her
body, before changing her answer to ‘‘yes.’’ Similarly,
she denied that anything had ever happened between
her and the defendant in the bedroom, before changing
her answer to the affirmative. The child testified that
the defendant had touched her on her pants, always on
top of her clothes, but subsequently testified that he
had done so ‘‘in my clothes.’’ She testified that the
defendant had touched her on the inside of her vagina
and ‘‘butt,’’ but denied that she had seen him without
clothing. The child’s testimony at trial was not only
contradictory at times, but it also was inconsistent with
the statements she made in the forensic interview. The
child gave conflicting answers about whether touching
had occurred and where, or what type of touching
occurred. The video portions of the forensic interview,
which were made available to the jury, provided the
only support for the state’s theory that the defendant
penetrated the child as well as introducing the new
allegation that the defendant removed the child’s cloth-
ing. We note, as well, that during its deliberations, the
jurors sent out a note requesting to see the summary
of the forensic interview, but because it was not a full
exhibit, the jurors were not permitted to see it. We
recognize the difficulties the state faces in prosecuting
cases involving allegations of sexual assaults of young
children when there is no physical evidence but con-
clude that the child’s allegations of sexual abuse by the
defendant as revealed in the forensic interview were
not admissible under the medical treatment exception
to the hearsay rule and played a substantial role in the
jury’s decision to find the defendant guilty of the charge
of risk of injury to a child.
   We conclude that the trial court’s decision to admit
the excerpts of the child’s forensic interview under
the medical diagnosis and treatment exception to the
hearsay rule constituted an abuse of discretion that
was not harmless, because the evidence substantially
affected the jury’s verdict. We, therefore, reverse the
judgment of conviction.
  The judgment is reversed and the case is remanded
for a new trial.
  In this opinion the other judges concurred.
   * 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 child or others through whom her identity may be ascertained.
See General Statutes § 54-86e.
   Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018); we decline to identify any party protected or sought to be protected
under a protective order or a restraining order that was issued or applied
for, or others through whom that party’s identity may be ascertained.
   ** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
   1
     Because we conclude that the defendant is entitled to a new trial because
the trial court improperly admitted portions of the video of the forensic
interview that constituted harmful error, we need not address the defendant’s
remaining claims. We are aware that the second issue may arise again on
remand, but we do not decide it today. Although there may be double
jeopardy implications with regard to § 53-21 (a) (1) and (2), because this
ultimately is a fact-dependent inquiry, we do not think it prudent to address
it at this time. As for the third issue, the court’s in camera review of the
child’s records, should it arise again on remand, we believe this is better
left to the discretion of the trial court.
   2
     On November 3, 2015, the child received a follow-up forensic physical
examination at Yale New Haven Hospital.
   3
     Azevedo-Rasuk was the officer who responded on October 19, 2015.
Williams, a psychologist and forensic interviewer who works for Klingberg
Child Advocacy Center and for the Center for Youth and Families in Torring-
ton, testified as an expert on the techniques used by forensic interviewers
to collect accurate information from young children who may be impacted
by trauma from abuse.
   4
     Additionally, the court ordered a standing criminal protective order pro-
hibiting the defendant from contacting the child.
   5
     Della-Giustina testified that she did not use a colposcope, a magnification
tool often used in forensic medical examinations of sexual assault victims,
in this examination as it is not normally available in the emergency room.
   6
     Concepcion characterized the group of individuals observing the forensic
interview as a ‘‘multidisciplinary team.’’
   7
     During defense counsel’s cross-examination of Concepcion, she testified
as follows:
   ‘‘Q. And you had met with team members, other team members prior to
the interview taking place.
   ‘‘A. Correct.
   ‘‘Q. So you had information about what the allegations were and against
whom they were made prior to the interview taking place.
   ‘‘A. Yes.’’
   8
     The transcript of the interview reveals the following exchange between
Concepcion and the child:
   ‘‘Concepcion: Okay. So all right. So [child] I want to tell you two quick
things okay cause I think we’re all done. . . . First I want to tell you thank
you for coming. Okay. Did you hear what I said? Okay. So I want to thank
you for coming. And the second thing I wanna make sure . . . that you’re
safe. Remember I said that we talk about safe things to make . . . sure
that you’re safe. . . . So hold on. We’re not done. . . . So last thing I want
to tell you . . . listen if you’re ever not feeling safe or somebody bothers
you or you’re scared who can you tell? Who can you go to that you trust?
   ‘‘[The Child]: You.
   ‘‘Concepcion: Well I’m not gonna be there. How about in school if some-
body bothers you. Who can you tell?
   ‘‘[The Child]: The teacher.
   ‘‘Concepcion: Right. Good. And how about at home if somebody bothers
you? Do you have somebody you can talk to? Can you tell your grandma?
Would you like to have somebody to talk to? Yes? Okay. So I’m gonna tell
your grandma that you’re interested in having somebody to talk to. Okay. So
I’m gonna take you back to your grandma. So let’s go back to your grandma.’’
   9
     The portions of the interview that the state proffered run from pages
11 through 18 and from the bottom of page 25 through page 27 of the
transcript admitted for identification as exhibit 5. The first portion begins
with Concepcion asking the child to identify various parts of the pictured
human bodies. The child identified the parts of the human body displayed
on a chart shown to her and stated that the defendant touched her vagina
(referred to as ‘‘toto’’ in the interview) and butt ‘‘a lot.’’ When asked by
Concepcion, the child responded in the affirmative that the defendant had
used his penis to touch her vagina. She stated that her clothes were on.
The following exchange occurred when Concepcion asked the child if the
defendant had taken her clothes off:
   ‘‘[The Child]: I. . . my clothes on.
   ‘‘Concepcion: You had your clothes on? Okay. And how
   ‘‘[The Child]: And he take it off.
   ‘‘Concepcion: He took your . . . did he take your clothes off? Okay. And
then what happened?
   ‘‘[The Child]: He was like this.
   ‘‘Concepcion: He, he took it off with his hands?’’
   Concepcion asked if the defendant’s penis had touched the child’s skin
or clothes. The child responded that the defendant’s penis, which she
described as ‘‘big,’’ ‘‘black,’’ and ‘‘soft,’’ had touched her skin. Concepcion
then asked the child if the defendant’s penis had gone on top of her vagina
or inside. The child responded in the affirmative, stating ‘‘inside’’ and that
it had done so ‘‘a lot.’’ The child also told Concepcion that the same was
true for her butt (which she referred to as ‘‘coolo’’). Specifically, she stated
that the defendant’s penis had gone inside, again ‘‘a lot.’’ The child stated
that the defendant told her he wanted to marry her, that he kissed her on
her lips and grabbed her head ‘‘a lot,’’ and that he ‘‘[a]sked us to have a
baby.’’ She confirmed that his name was ‘‘Freddy.’’
   In the second portion of the video shown to the jury, Concepcion asked
the child whether the defendant had put his penis ‘‘on top or inside of your
toto or something else.’’ The child responded ‘‘inside.’’ Concepcion asked
the same question in regard to the defendant’s hands. The child stated that
the defendant’s finger had gone inside. Finally, the child stated that this
had occurred in the room where the defendant sleeps and that nobody had
seen it.
   10
      In Estrella J.C., this court upheld the admission of statements made in
a forensic interview, applying the rule set out in State v. Griswold, supra,
160 Conn. App. 528. State v. Estrella J.C., supra, 169 Conn. App. 76–80. In
Eddie N.C., this court upheld the admission of a forensic interview con-
ducted by a social worker prior to the child’s follow-up medical examination,
relying again on Griswold. State v. Eddie N.C., supra, 178 Conn. App. 173.
   11
      The trial court stated in particular that ‘‘I understand while the defense
is arguing that [it] really only relates to the investigation and assisting the
police, the testimony really is that it supports a whole host of different
interests. Medical included and I think that that is borne out by the fact
that then this particular witness does refer the complainant for these two
types of treatments and then those referrals do take place.’’
   12
      The assistant state’s attorney conducted the following examination of
the child:
   ‘‘Q. Okay. And did you tell Brenda things about those parts?
   ‘‘A. Yeah.
   ‘‘Q. Did anybody touch those parts?
   ‘‘A. Yes.
   ‘‘Q. Did anybody put anything inside those parts?
   ‘‘A. No.
   ‘‘Q. No.
   ‘‘A. Yes.
   ‘‘Q. Who?
   ‘‘A. My father.’’
   13
      The assistant state’s attorney examined the child as follows:
   ‘‘Q. And when you visited him on weekends did anything happen on a
weekend when you went to see him?
   ‘‘A. No.
   ‘‘Q. Never. Nothing.
   ‘‘A. Yes.
   ‘‘Q. Yes. What if anything happened when you went to go see him? Tell
me all about that. What would you do on the weekend?
   ‘‘A. I would go eat. Have fun.
   ‘‘Q. Did you ever go into his bedroom?
   ‘‘A. Yes.
   ‘‘Q. Did anything ever happen when you were in the bedroom with him?
   ‘‘A. No.
   ‘‘Q. Never.
   ‘‘A. Yes.
   ‘‘Q. So did things happen in the bedroom with him?
   ‘‘A. Yes.
   ‘‘Q. When you were in the bedroom with him, what would happen?
   ‘‘A. He touched me.’’
   14
      The defendant also argues that this court should overrule State v. Gris-
wold, supra, 160 Conn. App. 528, and its progeny. It is axiomatic that we
cannot overrule the decision made by another panel of this court in the
absence of en banc consideration. In re Zoey H., 183 Conn. App. 327, 340
n.5, 192 A.3d 522, cert. denied, 330 Conn. 906, 192 A.3d 426 (2018). The
defendant filed a motion for en banc consideration of the present appeal,
which this court denied on April 8, 2020.
   15
      This court rendered its decision in Manuel T. in November, 2018; the
present case was tried in January, 2018. In January, 2019, our Supreme
Court granted the defendant’s petition for certification to appeal, limited
to, inter alia, the issue of whether the ‘‘Appellate Court [applied] the proper
standard in determining that, in a criminal prosecution for sexual abuse of
a child, hearsay statements made during a forensic interview of the child
complainant are admissible under § 8-3 (5) of the Connecticut Code of
Evidence?’’ State v. Manuel T., 330 Conn. 968, 200 A.3d 189 (2019).
   16
      We also agree with the defendant that, as a policy matter, allowing the
hearsay exception to be invoked as a result of medical referrals made at
the end of a forensic interview poses a risk that the state can ‘‘sanitize’’ the
interview and subvert the hearsay exception. Ultimately, the focus of the
hearsay exception is the declarant’s understanding of the interview’s pur-
pose, i.e., was it relevant for medical purposes. See State v. Manuel T.,
supra, 186 Conn. App. 62. Pro forma referrals at the end of an interview,
even if fulfilled, do not satisfy this requirement. The evidence does not
reveal that the child was aware that Concepcion would make referrals for
further treatment at the end of the interview based on the information given
in the interview, nor has the state shown that she was aware of the purpose
of the interview when she made the hearsay statements at issue here to Con-
cepcion.
   17
      The full transcript of the interview, the full video, and the forensic report
prepared by Concepcion were marked only as identification exhibits.