PALMER, J.

After a jury trial, the defendant, Richard Fourtin, was convicted of attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-71(a)(3)1 and 53a-49 (a)(2),2 and sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a)(1)(C),3 both of which require proof beyond a reasonable doubt that the victim,4 at the time of the offense, was physically helpless.5 Under General Statutes § 53a-65 (6), a person is physically helpless if he or she is "unconscious or for any other reason is physically unable to communicate unwillingness to an act." After the state had presented its case at trial, and again following the close of evidence, the defendant filed a motion for a judgment of acquittal, claiming that the state had failed to offer sufficient evidence that the victim was physically helpless. The trial court denied the motions and rendered judgment of guilty in accordance with the jury verdict, and the defendant appealed to the Appellate Court. That court considered the sole issue of whether the jury reasonably could have found that the state introduced sufficient evidence to prove that the victim was unable to communicate her lack of consent to the defendant's sexual advances and concluded that the state had failed to sustain its evidentiary burden. See State v. Fourtin, 118 Conn.App. 43, 48, 53, 982 A.2d 261 (2009). The state, in its appeal to this court upon our granting of certification; State v. Fourtin, 294 Conn. 925, 926, 985 A.2d 1062 (2010); claims that the Appellate Court improperly reversed the judgment of the trial court. We disagree and affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth certain of the facts that the jury reasonably could have found, as well as some of the relevant procedural history. "In February, 2006, the twenty-five year old [victim] lived in an apartment complex with her mother [S]. The defendant, who was [S's] boyfriend ... lived nearby.6 He frequently assisted [S] in caring for the [victim]. The [victim] got along with him.

"The [victim] is a woman with significant disabilities that affect the manner in which she interacts with others. She [suffered a brain hemorrhage after being born three months premature, and her disabilities include] cerebral palsy, mental retardation and hydrocephalus. She cannot walk and needs assistance in performing the activities of daily living. She is nonverbal but communicates with others by gesturing and vocalizing and through the use of a communication board.7 To manifest her displeasure, she can kick, bite and scratch. The [victim] can also vocalize her feelings by groaning or screeching.

"In 2006, the [victim] was attending an adult day care program for ... physically, emotionally or mentally disabled [persons]. Deacon Raymond Chervenak was a staff member at the day care program with whom the [victim] regularly communicated about her interest in sports.8 On February 23, 2006, Chervenak observed that the [victim] looked `aggravated' and `scared.' In response to Chervenak's inquiry, the [victim], by means of appropriate gestures9 and the use of a communication board, made him aware that the defendant had sexually assaulted her at her home. In similar fashion, the [victim] repeated this accusation to Frances Hernandez, the supervisor of the adult program, by pointing to her own body parts and [to] Chervenak's body parts.10 A subsequent medical examination disclosed physical symptoms consistent with the [victim's] report that she had been sexually assaulted." State v. Fourtin, supra, 118 Conn. App. at 46-47, 982 A.2d 261.

In addition to the testimony of Chervenak and Hernandez, the assistant state's attorney (prosecutor) elicited testimony from Dee Vetrano, the director of residential support at the victim's group home, regarding the victim's ability to communicate her preferences. Specifically, the state asked Vetrano whether the victim "is susceptible to being suggested to or manipulated in any way?" Vetrano replied: "No. She is not.... She's ... very direct in what her beliefs are or what her feelings are toward others. [The victim is] actually... one of [the] people we use when we hire staff. We do initial interviews with staff, and if there's someone that we're interested in hiring, we always bring them to the house ... to see them interact with clients.... We have had a situation where one individual was hired ... and it's someone that the group home manager felt strongly about, and [the victim] to this day does not care for this person. It's not that she hates her ... but she really ... prefer[s] [not] to have that individual work with her, and she still expresses that, even after knowing that it's someone [who] I value as an employee.... So, she's not swayed in any way by her feelings ... and she will always consistently indicate those to us."

S testified similarly that the victim was able to express her feelings and emotions. When the prosecutor asked S whether the victim had gotten along with S's former husband, the victim's stepfather, S responded: "[H]e got along with her. She did not like him." S explained that the victim "would always be frowning [when he was around] and she never wanted him near her.... And she ... would try to hurt him." When the prosecutor asked S whether the victim would try to hurt him physically, S responded: "Physically. Biting, scratching, leaving marks ... [k]icking." Subsequently, during cross-examination, defense counsel asked S whether the victim had "any problem whatsoever communicating that she did or didn't want to do something...." S responded that the victim "never had a problem." Defense counsel then asked: "If you took her to the shower when she didn't want to go to the shower, I think you testified [that] she would bite you?" S responded, "Yes, and kick [and] scratch."

Finally, the prosecutor also presented the testimony of two physicians, both of whom previously had examined the victim, regarding their ability to communicate with her. Jose Reyes, an obstetrician and gynecologist, testified that when he treated the victim for dermatitis in her genital area in 2005, he communicated with the victim through S because he was unable to communicate with the victim directly. The prosecutor also asked James Bovienzo, an emergency department physician who had examined the victim after the alleged sexual assault, whether he was "able to discuss matters with [the victim] while [he was] involved in collecting any evidence in this case...." Bovienzo replied that "[t]he patient was noncommunicative."11

After the state presented its case, the defendant moved for a judgment of acquittal, outside the presence of the jury, on the ground that the evidence was insufficient to establish that the victim had been physically helpless at the time of the alleged sexual assault. Specifically, the defendant argued that there was uncontroverted evidence that the victim could communicate her lack of consent by biting, kicking, screaming and gesturing. The state opposed the motion, arguing that the issue of physical helplessness and the question of whether the victim was unable "to communicate her wishes" was a question of fact for the jury. The trial court denied the defendant's motion on the ground that the state had presented sufficient evidence to allow the matter to be decided by the jury.

Thereafter, the defense called several witnesses who testified that the victim often used gestures, kicking, biting, screaming or screeching to express herself. Sandra Newkirk, a home health aide who had cared for the victim for several months prior to the assault, testified that, when the victim did not receive the food she was expecting, "[s]he would have a fit." During such a fit, "[s]he would kick and, you know, kick and sort of make a groaning noise." Newkirk further testified that she had witnessed the victim scratch and bite S on a few occasions. The victim's grandmother, R, testified that the victim had a temper and that, "[i]f she didn't like what she was supposed to do, she would screech, and, to anyone who ... wasn't used to the noise ... it would be kind of unnerving." R recalled that, sometimes, if the victim did not want to take a shower, she would bite S to the point of drawing blood, or, if the victim did not want to wear a particular pair of shoes, she would kick S when S bent down to put the shoes on her feet.

During closing argument, the prosecutor emphasized that the jurors had had an opportunity to observe the victim in the courtroom and contended that "[s]he's a young woman who ... is very, very limited in terms of what she can — what type of information she can pass on to you, the manner in which she can pass it on." The prosecutor then asked the jurors to be mindful of the fact that the victim was "disabled to a point where she has some difficulty expressing herself in how she can get her message across in terms of what happened." With respect to whether the victim was physically helpless at the time of the alleged assault, the prosecutor argued that the jurors could find that she was because, like an infant, "[s]he is totally dependent on others." The prosecutor's contention that the victim was like an infant in terms of her physical dependency was the only argument that he made at trial with respect to the physically helpless prong of the charged offenses.

During deliberations, the jury sent a note to the trial court in which it requested a transcript of the victim's testimony and clarification of the legal definition of "physically helpless." In response to the latter request, the trial court simply reiterated the statutory definition that it had provided during its original charge.12 The jury subsequently found the defendant guilty of attempt to commit sexual assault in the second degree and sexual assault in the fourth degree, and the trial court rendered judgment in accordance with the jury's verdict.

The defendant appealed to the Appellate Court, claiming that the state had failed to adduce sufficient evidence to prove that the victim's disabilities rendered her physically helpless within the meaning of § 53a-65 (6). State v. Fourtin, supra, 118 Conn.App. at 47, 982 A.2d 261. The defendant argued that the state "[had] not alleged that, at the time ... [he] assaulted the [victim], she was unconscious, intoxicated, asleep or for some other reason unable to communicate nonverbally, such as by kicking, scratching and screeching. The defendant maintain[ed], therefore, that, even viewing the evidence at trial in favor of the state, the record [did] not establish beyond a reasonable doubt that the [victim] was physically unable to communicate [her] unwillingness to an act, as § 53a-65 (6) requires." (Internal quotation marks omitted.) Id. at 48, 982 A.2d 261.

In response, the state argued that, even though there was testimony "that [the victim] would screech, bite, or kick to indicate displeasure, fear, resistance, or some other negative emotion, it was undisputed that [the victim] was nonverbal." State v. Fourtin, Conn. Appellate Court Records & Briefs, September Term, 2009, State's Brief p. 9. The state contended that "[m]erely making noises, biting, groaning or screeching is not communication" within the meaning of § 53a-65 (6) because "[n]one [of these modes of interaction] transmit[s] a message to the hearer with sufficient clarity to be called `communication.' This is especially so if the hearer is unfamiliar with [the victim]." Id., at p. 10.

The Appellate Court rejected the state's argument, concluding in relevant part: "All the ... witnesses testified that, sometimes with the aid of a communication board and at other times, with appropriate gestures, the [victim] was able to make herself understood. Witnesses testified about the `temper' of the [victim] and her concomitant ability to make her displeasure known through nonverbal means, using gestures, physical aggression and screeching and groaning sounds. Notably, the alleged sexual assault in this case came to light only because the [victim] was able to communicate her distress to Chervenak. His testimony squarely contradicts the state's assertion that the [victim] was unable to transmit a message to the intended recipient with sufficient clarity to be called `communication.'" State v. Fourtin, supra, 118 Conn.App. at 50-51, 982 A.2d 261 "Given the uncontradicted evidence in the record that the [victim] could communicate using various nonverbal methods, including screeching, biting, kicking and scratching, and the failure of the state to present any evidence probative of whether the [victim] was unable to use these forms of communication at the time of the alleged assault, no reasonable jury could have concluded that [the victim] was physically helpless as [that term is] defined by § 53a-65 (6)." Id. at 51, 982 A.2d 261. We subsequently granted the state's petition for certification to appeal, limited to the following issue: "Did the Appellate Court improperly substitute its judgment for that of the jury when it determined that the state did not sustain its burden of proof that the victim was `physically helpless' under ... § 53a-65 (6)?" State v. Fourtin, supra, 294 Conn. at 926, 985 A.2d 1062.

On appeal to this court, the state argues that, contrary to the determination of the Appellate Court, the evidence was sufficient to support the jury's verdict because the jury was not required to accept the testimony of the witnesses who stated that the victim could express her displeasure and unwillingness to an act through biting, kicking, scratching, screeching, groaning and gesturing. In essence, it is the state's contention that, if the jury rejected all of the evidence concerning the victim's ability to communicate displeasure and unwillingness to act through nonverbal methods, then the evidence that remained — namely, that the victim could not speak and communicated with words solely by means of a communication board — was sufficient to support a finding that, at the time of the alleged sexual assault, the victim was unable to communicate unwillingness to an act.

The defendant counters that the Appellate Court's conclusion that the state failed to sustain its burden of proof with respect to the element of physical helplessness "did not constitute an improper substitution of judgment but a recognition that the state did not produce evidence to support its theory." The defendant also contends that the state's argument on appeal that the jury could have rejected all evidence of the victim's ability to communicate nonverbally — which differs not only from its argument in the trial court but also from that which it presented to the Appellate Court — constitutes an "untenable reconstruction" of how the case was presented to the jury and how we must presume that the jury considered and applied the evidence.13 We agree with the defendant.

We review a claim of evidentiary insufficiency by applying a two-part test. "First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533, 540-41, 975 A.2d 1 (2009).

Before we can determine whether the state presented sufficient evidence to prove that the victim was "physically helpless," however, we first must consider the meaning of that statutory term. Because the state's claim raises an issue of statutory interpretation, we exercise a plenary standard of review. E.g., State v. Courchesne, 296 Conn. 622, 668, 998 A.2d 1 (2010). Pursuant to General Statutes § 1-2z, we begin our analysis with "the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."

As a preliminary matter, it bears emphasis that no one would dispute that the victim is physically helpless in the ordinary sense of that term. Physical helplessness under § 53a-65 (6), however, has a highly particularized meaning that is unrelated to whether a person is physically able to resist unwanted sexual advances or mentally able to understand when to resist such advances. Rather, under § 53a-65 (6), a person is physically helpless if they are "unconscious or for any other reason... physically unable to communicate unwillingness to an act." (Emphasis added.) Our case law, and the case law of other jurisdictions, makes clear that, under this definition, even total physical incapacity does not, by itself, render an individual physically helpless.14

In State v. Hufford, 205 Conn. 386, 397-99, 533 A.2d 866 (1987), for example, we rejected the state's claim that the victim, who was totally physically restrained, was physically helpless as that phrase is statutorily defined. In Hufford, the victim allegedly was sexually assaulted by the defendant, Steven H. Hufford, an emergency medical technician, while she was being transported to the hospital by ambulance. Id. at 390, 533 A.2d 866. Although the victim was unable to resist the alleged sexual assault because she was restrained on a stretcher; id. at 390, 393, 533 A.2d 866; this court rejected the state's claim that she was physically helpless because she repeatedly told Hufford to stop touching her. Id. at 398-99, 533 A.2d 866. We explained that, because the victim "was not unconscious, we [were] concerned with whether she was physically able to communicate her unwillingness to the act." Id. at 398, 533 A.2d 866. We concluded that the word "communicate" was plain and unambiguous, and meant "to make known: inform a person of ... speak, gesticulate ... to convey information." (Internal quotation marks omitted.) Id., quoting Webster's Third New International Dictionary. Because the victim in Hufford was able to communicate her lack of consent to Hufford, the state failed to satisfy its burden of proving the essential element of physical helplessness. State v. Hufford, supra, at 398-99, 533 A.2d 866; see also People v. Orda, 180 Misc.2d 450, 454, 690 N.Y.S.2d 822 (1999) (physical helplessness requirement in New York Penal Law "is not satisfied by an inability to move one's body [when] the victim is able to protest verbally"); People v. Morales, 139 Misc.2d 200, 202, 528 N.Y.S.2d 286 (1988) ("although [the victim, who was paralyzed from the neck down] was indeed physically helpless in the ordinary sense of the term, she was not physically helpless for purposes of the [New York Penal Law]").

Our decision in Hufford, which is consistent with case law from other jurisdictions, establishes that physical helplessness under § 53a-65 (6) applies only to a person who, at the time of the alleged act, was unconscious or for some other reason physically unable to communicate lack of consent to the act. This court never has had occasion, however, to explore the applicability of the term "physically helpless" to a severely disabled person who may be able to communicate non-verbally, as distinguished from a person who is unconscious or, for a similar reason, temporarily unable to communicate unwillingness to an act. Indeed, criminal law treatises suggest that physical helplessness, as that term is used in statutes such as § 53a-65 (6) and similar statutes from other jurisdictions, was intended primarily to address the latter situation. For example, in discussing the crime of sexual assault based on the victim's incapacity to consent, Professor Wayne R. LaFave notes that "[t]his type of case arises in three separate circumstances: where the [victim] is unconscious; where the [victim] is mentally incompetent; and where neither of those circumstances [exists] but the [victim] is under the influence of self-administered drugs or intoxicants." 2 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 17.4(b), p. 643; see also 3 F. Wharton, Criminal Law (15th Ed. Torcia 1995) § 282, p. 57 ("A victim is obviously incapable of consenting to sexual intercourse when [the victim] is unconscious or asleep. The term commonly adopted by statute to express the idea is `physically helpless,' which means a victim who is `unconscious, asleep, or otherwise unable to indicate willingness to act.'"); cf. 2 American Law Institute, Model Penal Code and Commentaries (1980) § 213.1, comment, p. 317 ("Common-law authorities treated intercourse with an unconscious [person] as rape and occasionally expanded this rule to cases [in which] the [person] was not technically unconscious but was so incapacitated by alcohol or drugs as to be in a condition of utter insensibility or stupefaction. Most current statutes, however, differentiate unconsciousness from lesser impairment and require in the latter case that the drug or intoxicant be administered by or with the privity of the defendant in order to constitute the highest degree of forcible rape.").

Case law from other jurisdictions, particularly New York, also supports the view that the physically helpless requirement was designed to protect victims who are unconscious or in a similar condition that has rendered them temporarily unable to communicate.15 As one New York court stated: "Physically helpless ... means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act." (Internal quotation marks omitted.) People v. Morales, supra, 139 Misc.2d at 201, 528 N.Y.S.2d 286. "The ... [p]ractice [c]ommentaries [to the New York Penal Law] note that ... this definition would apply to a person who is in a deep sleep as a result of barbituates or who is a total paralytic. To some extent, the definitions of mentally incapacitated and physically helpless overlap." (Citation omitted; internal quotation marks omitted.) Id. "Mentally incapacitated means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent." (Internal quotation marks omitted.) Id. at 201-202, 528 N.Y.S.2d 286. "As noted in the [p]ractice [c]ommentaries, these two forms of incapacity, physically helpless and mentally incapacitated, are applicable to victims who have no mental disease or defect but who are temporarily, for a variety of reasons, not able to make a rational, free-will determination to consent, or not able to communicate an unwillingness to consent, to sexual activity." (Emphasis added; internal quotation marks omitted.) Id. at 202, 528 N.Y.S.2d 286. "It is apparent that the physical helplessness contemplated by the statute requires more than a disease causing physical paralysis." (Emphasis added; internal quotation marks omitted.) Id. "A fair reading of the [applicable] statute indicates the requirement of a mental state that limits or prohibits the victim from communicating a lack of consent to the conduct of the perpetrator." Id.; see also People v. Copp, 169 Misc.2d 757, 758-59, 648 N.Y.S.2d 492 (1996) ("A survey of the cases shows that [when] ... prosecutions are premised on the victim's lack of consent due to physical helplessness, the condition is generally drug or alcohol induced.... However, the statutory definition appears to ... be broad enough to include a sleeping victim." [Citations omitted; internal quotation marks omitted.]); State v. Puapuaga, 54 Wn.App. 857, 861, 776 P.2d 170 (1989) ("[t]he state of sleep appears to be universally understood as unconsciousness or physical inability to communicate unwillingness").

In fact, it is the rare case that does not involve a victim who was physically helpless due to unconsciousness, sleep or intoxication. Of the numerous reported cases involving the sexual assault of a physically helpless person, only a few involve a victim alleged to have been physically helpless by virtue of having a physical or intellectual disability. Of the few cases involving victims with such disabilities and a statutory definition of "physically helpless" that is identical or similar to the definition of that term in § 53a-65 (6), the pertinent sexual assault charge was dismissed or the defendant's conviction was set aside in all but one case.16 In the only case that is directly on point, People v. Huurre, 84 N.Y.2d 930, 645 N.E.2d 1210, 621 N.Y.S.2d 511 (1994), the New York Court of Appeals upheld the determination of the Appellate Division of the New York Supreme Court; see People v. Huurre, 193 App.Div.2d 305, 306-307, 603 N.Y.S.2d 179 (1993); that a nonverbal, profoundly retarded woman who also suffered from cerebral palsy, was not physically helpless within the meaning of N.Y. Penal Law § 130.00(7), New York's equivalent to § 53a-65 (6). The defendant in that case, Leo Huurre, "was convicted ... of sexual abuse in the first degree in that he subjected the victim, a profoundly mentally retarded woman, to sexual contact when she was incapable of consenting to such contact by reason of being physically helpless...." (Citation omitted.) Id. at 306, 603 N.Y.S.2d 179. "The victim ... was a [thirty-five year old] woman with an [intelligence quotient] of 16 to 20, which is the functional equivalent of [that of] a three year old and renders her profoundly mentally retarded. In addition, the victim suffers from cerebral palsy and epilepsy, and is nonverbal in the sense that she has no understandable speech, but she does make gutteral noises and is capable of making and understanding a few signs. Essentially, she is capable of doing and understanding that which a three year old can do and understand, except that she does not have the ability to speak. Those who care for the victim testified, however, that her lack of speech does not inhibit her from communicating when she wants or does not want something. Thus, for example, when she was in the hospital after [the alleged sexual] assault [and] waiting to be examined, she kept crying and pointing away as though she wanted to leave. When the doctor attempted to examine her, she kept trying to get off the examining table and jumped back when he approached her with a tube." Id. at 307, 603 N.Y.S.2d 179.

On appeal, Huurre claimed "that in drafting [New York] Penal Law article 130, the article that deals with sex offenses, the [l]egislature defined the phrase `incapable of consent' in such a way as to preclude a finding that [a person] who is mentally retarded could be incapable of consenting by reason of being physically helpless...." (Citation omitted.) Id. at 306, 603 N.Y.S.2d 179. The Appellate Division rejected this contention, concluding in relevant part: "[T]he fact that an individual is mentally retarded does not, perforce, preclude a finding that she, either as a consequence of or in addition to that retardation, is physically helpless, that is, physically unable to communicate an unwillingness to an act.... [T]he evidence adduced at trial, [however] when viewed in the light most favorable to the prosecution, is legally insufficient to establish that the victim was physically unable to communicate unwillingness to an act. In fact, the testimony is to the contrary. Although the victim, by virtue of her retardation, is not able to determine what she should or should not be unwilling to do, the testimony adduced at trial established that when she is unwilling to do something she communicates that unwillingness. Thus, [Huurre's] conviction for sexual abuse in the first degree [was] reversed ... and that count of the indictment [was] dismissed." (Citation omitted.) Id. at 306-307, 603 N.Y.S.2d 179.

In reaching its determination, the Appellate Division acknowledged that "there may be situations under which the different factors that cause a victim to become incapable of consent overlap.... Indeed, one of the psychologists who testified on behalf of the [prosecution] indicated that while the victim, who is at the high end of the scale which is used to measure profound retardation, has rudimentary communication abilities, there are those on the low end of the scale used to measure profound mental retardation that have none. Such persons may, as a consequence of their mental retardation, or mental defect... be physically unable to communicate unwillingness to an act.... [In this case], however, the [prosecution] failed to establish that such an overlap exists."17 (Citations omitted.) Id. at 309-10, 603 N.Y.S.2d 179.

In sum, even if the term "physically helpless" in § 53a-65 (6) was not intended primarily to apply to a severely handicapped person who is able to communicate non-verbally, we agree with the conclusion in Huurre that a person's physical or intellectual disabilities do not preclude a finding that such a person, by virtue of his or her disabilities or other reasons, is physically helpless in the sense of being "physically unable to communicate unwillingness to an act." General Statutes § 53a-65 (6). Thus, regardless of the reason for the alleged inability to communicate, the key question in cases that require proof of physical helplessness is whether, at the time of the alleged sexual assault, the victim was physically able to convey a lack of consent or unwillingness to an act.

In the present appeal, the state contends that whether the victim was unable to physically communicate her lack of consent at the time of the alleged assault was a factual matter properly left to the jury and that the Appellate Court improperly substituted its judgment for that of the jury. It is axiomatic that physical helplessness is a question of fact for the jury but only if the court determines that the evidence is legally sufficient to support a finding as to that issue. The question, therefore, is whether the state met that threshold burden.

The state argues that the evidence adduced at trial was sufficient to satisfy its burden of proof with respect to the element of physical helplessness because the jury was not required to accept the testimony of the witnesses who stated that the victim could express her displeasure and unwillingness to an act through biting, kicking, scratching, screeching, groaning or gesturing. The state further contends that, even if the jury credited this testimony, "[it] was not required to accept the interpretation of [the victim's] actions assigned by these witnesses." The state maintains that, "[r]ather than conclude, as these witnesses did, that [the victim] was able to signal `no' by biting, screeching, kicking or groaning, the jury could find this behavior merely emblematic of her multiple disabilities. Or, the jury could conclude [that] such behavior, rather than serving as a conduit for communication, was a reflection of her attitude toward [S], or merely part of [the victim's] startle reflex, or a sign of generalized anger, frustration or even mischievousness."

If the state had pursued any of these theories at trial, so that the jury could have considered them, it is entirely possible that we would find them persuasive for purposes of our sufficiency analysis on appeal. We have consistently held, however, that, "in order for any appellate theory to withstand scrutiny ... it must be shown to be not merely before the jury due to an incidental reference, but as part of a coherent theory of guilt that, upon [review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise cognizable sense. We adopted this rule as the standard by which to gauge whether evidence introduced at trial, but not relied on by the state in its legal argument, is properly cognizable by an appellate court when evaluating the sufficiency of the evidence.... In addition, it is well established that [o]ur rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path [the party] rejected should now be open to him.... To rule otherwise would permit trial by ambuscade." (Citation omitted; internal quotation marks omitted.) State v. Scruggs, 279 Conn. 698, 718-19, 905 A.2d 24 (2006).

At no time during the trial, including cross-examination, closing argument or rebuttal, did the state challenge or dispute testimony establishing that the victim communicated displeasure through biting, kicking, scratching, screeching or groaning. Indeed, the state itself elicited much of this testimony, albeit in an attempt to establish for the jury that the victim was credible and perfectly capable of communicating her likes and dislikes. Nor did the state contend or otherwise suggest that these behaviors were simply manifestations of the victim's disabilities rather than volitional, communicative acts intended to express displeasure. Likewise, the state did not proceed on the theory that the victim's behaviors merely reflected generalized anger or frustration.18

To the contrary, the prosecutor expressly told the jury during closing argument that the victim, "according to all accounts, was very vocal, very active, and, if in fact she felt that ... [people were not understanding] what she was saying, I believe [that] everybody [who has] testified here [has indicated that] she would throw up her arms and say `stop.'" During closing argument, the prosecutor also noted that the victim was "very limited in terms of... what type of information she can pass on to you," and that she had "some difficulty expressing herself...." At no time, however, did the state even raise the notion that the victim was unable to communicate an unwillingness to an act. Indeed, it appears that the state believed there was no reason to contest the victim's ability to express herself by biting, kicking, scratching, screeching, groaning or gesturing because it was the state's theory that the victim was physically helpless, notwithstanding her ability to communicate nonverbally, in view of her limited cognitive abilities, the fact that she cannot speak and that fact that she is totally dependent on others for all of her needs.19 The state, having chosen to pursue this path at trial, cannot now proceed on the basis of theories that it opted not to pursue.20 See, e.g., State v. Scruggs, supra, 279 Conn. at 719, 905 A.2d 24.

As we have explained, the term "physically helpless" has a particular statutory meaning that requires more than a showing that a victim is totally physically incapacitated. We therefore turn to the evidence adduced at trial to determine whether, when considered in light of the state's theory of guilt at trial, the state presented sufficient evidence to satisfy § 53a-65 (6). We conclude that it did not.

As our recitation of the facts indicates, the state presented a significant amount of testimony explaining the victim's physical and cognitive limitations. The state also presented ample evidence to demonstrate that the victim communicated with many individuals by various means, including the use of a communication board, as well as by gestures, biting, kicking and screaming. As we previously indicated, the state presented no evidence or argument to call into question the testimony concerning the victim's nonverbal methods of communication. The state did, however, elicit testimony from several physicians that they were unable to communicate with the victim during the course of gynecological examinations. That evidence simply is not probative of whether the victim was unable to physically communicate to the defendant that his alleged sexual advances were unwelcome. The fact that the physicians sought information from S, rather than the victim, for purposes of conducting medical examinations is not relevant with respect to establishing that the victim was unable to convey the concept of "no" at the time of the alleged sexual assault.21

When we consider this evidence in the light most favorable to sustaining the verdict, and in a manner that is consistent with the state's theory of guilt at trial, we, like the Appellate Court, "are not persuaded that the state produced any credible evidence that the [victim] was either unconscious or so uncommunicative that she was physically incapable of manifesting to the defendant her lack of consent to sexual intercourse at the time of the alleged sexual assault." State v. Fourtin, supra, 118 Conn.App. at 53, 982 A.2d 261.

The judgment of the Appellate Court is affirmed.

In this opinion ROGERS, C.J., and ZARELLA and McLACHLAN, Js., concurred.

NORCOTT, J., with whom EVELEIGH and HARPER, Js., join, dissenting.

I conclude that the Bridgeport jury that was summoned to decide the facts of this case reasonably could have found that the victim, a twenty-five year old woman with numerous disabilities, including cerebral palsy, mental retardation and hydrocephalus, which render her unable to walk and talk and leave her with only very limited means to communicate with others, was in fact "`[p]hysically helpless,'" even under what the majority deems to be the "highly particularized meaning" of General Statutes § 53a-65 (6),1 as explicated by State v. Hufford, 205 Conn. 386, 399, 533 A.2d 866 (1987). I therefore respectfully disagree with the majority's conclusion that the Appellate Court properly determined that the convictions of the defendant, Richard Fourtin, of attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-49 (a)(2)2 and 53a-71 (a)(3),3 and sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a)(1)(C),4 were not supported by sufficient evidence. See State v. Fourtin, 118 Conn.App. 43, 45, 982 A.2d 261 (2009). Because I would reverse the judgment of the Appellate Court, I respectfully dissent.

The majority accurately states the background facts and procedural history, and I will not repeat them extensively here. Because this case presents an issue that is extremely fact sensitive, I do, however, emphasize certain descriptive facts with respect to the victim and her disabilities, as well as the events surrounding the disclosure of her assaults. "The [victim] is a woman with significant disabilities that affect the manner in which she interacts with others. She [suffered a brain hemorrhage after being born three months premature, causing] cerebral palsy, mental retardation and hydrocephalus.5 She cannot walk and needs assistance in performing the activities of daily living.6 She is nonverbal but communicates with others by gesturing and vocalizing and through the use of a communication board.7 To manifest her displeasure, she can kick, bite8 and scratch. The [victim] can also vocalize her feelings by groaning or screeching.

"In 2006, the [victim] was attending an adult day care program for men and women who are physically, emotionally or mentally disabled. Deacon Raymond Chervenak was a staff member at the day care program with whom the [victim] regularly communicated about her interest in sports. On February 23, 2006, Chervenak observed that the [victim] looked `aggravated' and `scared.' In response to Chervenak's inquiry, the [victim], by means of appropriate gestures9 and the use of a communication board, made him aware that the defendant [who is the boyfriend of her mother, S] had sexually assaulted her at her home. In similar fashion, the [victim] repeated this accusation to Frances Hernandez, the supervisor of the adult program, by pointing to her own body parts and Chervenak's body parts. A subsequent medical examination disclosed physical symptoms consistent with the [victim's] report that she had been sexually assaulted." Id. at 46-47, 982 A.2d 261.

"In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533, 540-41, 975 A.2d 1 (2009).

Before turning to a detailed examination of the record in this case, I begin with a review of the legal principle that the jury tasked with deciding the facts of this case was called upon to apply,10 namely, whether the victim was physically helpless, a term that is statutorily defined as "unconscious or for any other reason ... physically unable to communicate unwillingness to an act." (Emphasis added.) General Statutes § 53a-65 (6). The leading Connecticut case involving the application of this term is State v. Hufford, supra, 205 Conn. 386, 533 A.2d 866, wherein this court concluded that there was insufficient evidence to support the fourth degree sexual assault conviction of the defendant, an emergency medical technician, who had allegedly touched the breasts and vagina of a female patient who was being restrained during transportation to the hospital because she was agitated and apparently suicidal. Id. at 389-90, 533 A.2d 866. This court first noted that the language of § 53a-65 (6) "contains no terms not commonly used which might not be understood in their ordinary meaning," and stated that, "[s]ince the complainant was not unconscious, we are concerned with whether she was physically able to communicate her unwillingness to the act." Id. at 398, 533 A.2d 866. Quoting Webster's Third New International Dictionary (1986), the court determined that the word "communicate" was plain and unambiguous, and meant "`to make known: inform a person of ... speak, gesticulate ... to convey information.'"11 State v. Hufford, supra, at 398-99, 533 A.2d 866. Rejecting the state's claim that the complainant, who was unable to resist the alleged assault because she was being restrained, but had "protested verbally," was "physically helpless"; id. at 398, 533 A.2d 866; the court observed that, "[b]y her own account, the complainant told the defendant repeatedly to stop touching her, directly conveying her objection to his advances. While this testimony tends to show lack of consent, it contradicts the state's assertion that the complainant was unable to communicate her `unwillingness to an act.'" Id. at 399, 533 A.2d 866. Accordingly, this court concluded that "[t]he record contains no evidence tending to show that the complainant was physically helpless."12 Id.

Consistent with our decision in State v. Hufford, supra, 205 Conn. at 399, 533 A.2d 866, case law from other jurisdictions applying statutory language identical to that of § 53a-65 (6) in sufficiency of the evidence analyses makes clear that even the most significant physical disability does not by itself render an individual physically helpless. Thus, I agree with the majority that the analytical key remains the disabled victim's physical ability to communicate consent or the lack thereof.13 Compare Dabney v. State, 326 Ark. 382, 384, 930 S.W.2d 360 (1996) (A fifty-three year old victim who was blind and unable to speak was physically helpless when, "[a]s to her ability to communicate, the victim could only grunt, raise her hand, and shake her head from side to side. She was unable to write. In addition, witnesses testified that the victim's ability to perceive and comprehend her surroundings was very limited."), and People v. Gonzalez, 62 App.Div.3d 1263, 1264-65, 878 N.Y.S.2d 534 (sufficient evidence that victim with "advanced Alzheimer's disease... was `physically unable to communicate unwillingness to an act'"), appeal denied, 12 N.Y.3d 925, 912 N.E.2d 1087, 884 N.Y.S.2d 706 (2009); and People v. Green, 298 App.Div.2d 143, 144, 747 N.Y.S.2d 767 (Both victims were the defendant's fellow hospital patients and "were so severely handicapped that they were not capable of communicating an unwillingness to act. While there was evidence that each victim could make reflexive body motions, the evidence did not warrant a conclusion that either victim was capable of making voluntary movements designed to communicate unwillingness...." [Citation omitted.]), appeal denied, 99 N.Y.2d 559, 784 N.E.2d 84, 754 N.Y.S.2d 211 (2002), with People v. Clyburn, 212 App.Div.2d 1030, 1031, 623 N.Y.S.2d 448 (victim who suffered from Huntington's chorea, but could speak, not physically helpless), appeal denied, 85 N.Y.2d 971, 653 N.E.2d 627, 629 N.Y.S.2d 731 (1995), and People v. Morales, 139 Misc.2d 200, 201-202, 528 N.Y.S.2d 286 (1988) (The victim, who "suffers from muscular dystrophy rendering her paralyzed from the neck down and wheelchair bound," not physically helpless because she had "clearly testified that she verbally communicated her lack of consent and protests to the defendant during the incident. Therefore, although she was indeed physically helpless in the ordinary sense of the term, she was not physically helpless for purposes of the statute."), and State v. Bucknell, 144 Wn.App. 524, 529-30, 183 P.3d 1078 (2008) (bedridden victim paralyzed from waist down by amyotrophic lateral sclerosis, commonly known as Lou Gehrig's disease, not physically helpless because she was "able to talk, answer questions, and understand and perceive information").

Finally, in reviewing the evidence in this record, I emphasize that "[w]hether a victim is physically helpless at any given moment is largely a question of fact for the jury to decide." (Internal quotation marks omitted.) State v. Stevens, 311 Mont. 52, 59, 53 P.3d 356 (2002); see also, e.g., Dabney v. State, supra, 326 Ark. at 384, 930 S.W.2d 360; Perez v. State, 479 So.2d 266, 267 (Fla.App.1985); State v. Tapia, 751 N.W.2d 405, 407 (Iowa App.2008); People v. Teicher, 52 N.Y.2d 638, 649, 422 N.E.2d 506, 439 N.Y.S.2d 846 (1981). The majority recognizes this principle of factual deference, but in my view, fails to pay it sufficient heed.

Thus, unlike the majority, I agree with the state's position that, when the evidence properly is construed in the light most favorable to sustaining the verdict, including reasonably drawing inferences from that evidence in a manner consistent with the jury's verdict; see, e.g., State v. Ovechka, supra, 292 Conn. at 540-41, 975 A.2d 1; there is legally sufficient evidence in the record to support the jury's finding that the victim's physical and mental disabilities rendered her "physically unable to communicate unwillingness to an act." General Statutes § 53a-65 (6). With respect to the victim's communicative abilities, although they were not completely nonexistent, they nevertheless were significantly and severely restricted, as shown by her need to use a cumbersome and slow communication board. See footnote 7 of this dissenting opinion. Dee Vetrano, the director of residential support at the Litchfield County Association for Retarded Citizens, who supervises the group home wherein the victim resided at the time of trial, testified that it took a great deal of energy and time for the victim's brain to make her hands move so that she could use the board — testimony that was demonstrated for the jury when the victim's testimony had to be taken in short intervals over four separate trial days because of the fatigue caused by the act. Indeed, Vetrano testified further that, when the victim became stressed or agitated — which the jury reasonably could have inferred was a possible, and indeed quite likely, reaction to a sexual advance by the defendant, who was her mother's boyfriend — she would involuntarily "fist" her hands, rendering her further unable to communicate using the board, and therefore unable to physically communicate to the defendant that his sexual advances were unwelcome. Moreover, given the context dependent nature of the victim's communication abilities, as shown by the icon based communication board and the testimony of S that, to her knowledge, the victim had never received any kind of sex education — either from S or from any of her schools or care programs — the jury also reasonably could have inferred that the victim had significant difficulty understanding and responding to questions about sex.14

These communicative difficulties are further borne out in the testimony of three physicians to the effect that the victim was unable to communicate with them during the course of gynecological examinations, and that they had to speak with S in order to obtain necessary information. Jose Reyes, an obstetrician and gynecologist who was one of the victim's regular treating physicians, testified that, in October, 2005, the victim came in for treatment of an apparent rash "with [S] and it was [S] who communicated with me since I could not communicate with the [victim]." Reyes testified on cross-examination that, although the victim had a contact dermatitis condition on her genitalia and perineum that would generally be a very painful and itchy condition, she could not communicate that to him. Elenita Espina, Reyes' partner in practice, similarly testified at trial that she was never able to communicate with the victim, both at a June, 2006 examination following the sexual assault at issue in this case, and during numerous past visits. Finally, James Bovienzo, an emergency department physician at St. Vincent's Medical Center in Bridgeport who performed the sexual assault examination on the victim, answered in the negative when asked whether he was "able to discuss matters with [the victim] while [he was] involved in collecting ... evidence in this case," testifying that she was "noncommunicative" throughout the examination. In assessing the victim's communicative abilities with respect to matters pertaining to her body, the jury reasonably could have credited the physicians' testimony regarding how the victim simply could not communicate with them — particularly given her lack of sexual knowledge and the fact that they were called upon to assess and treat her genital and perineal areas both in the course of ordinary medical care and in conjunction with the sexual assault evaluations occasioned by her allegations in this case. Thus, I conclude that the jury's finding of physical helplessness was supported by sufficient evidence.15

In concluding to the contrary, the majority echoes the defendant's contentions and posits that the victim must be in a state akin to unconsciousness in order to qualify as physically helpless under the statute, noting that "it is the rare case that does not involve a victim who was physically helpless due to unconsciousness, sleep or intoxication." The defendant and the majority, quite understandably, then rely heavily on People v. Huurre, 193 App. Div.2d 305, 307-308, 603 N.Y.S.2d 179 (1993), aff'd, 84 N.Y.2d 930, 645 N.E.2d 1210, 621 N.Y.S.2d 511 (1994) (per curiam), wherein the New York Appellate Division, in an opinion later adopted by the Court of Appeals, concluded that there was not sufficient evidence to establish the physical helplessness of "a [thirty-five year old] woman with an IQ of [sixteen] to [twenty], which is the functional equivalent of a three year old and renders her profoundly mentally retarded. In addition, the victim suffers from cerebral palsy and epilepsy, and is nonverbal in the sense that she has no understandable speech, but she does make gutt[u]ral noises and is capable of making and understanding a few signs. Essentially, she is capable of doing and understanding that which a three year old can do and understand, except that she does not have the ability to speak." The court determined that the victim's rudimentary communicative abilities16 and responses to medical treatment "most vividly [typify] the problem with this case — the victim has the physical ability to communicate her unwillingness to do an act, but she is mentally incapable of determining when she should be willing and when she should be unwilling to do an act." Id. at 308, 603 N.Y.S.2d 179.

I disagree with the majority's reliance on Huurre in applying § 53a-65 (6). First, as aptly noted by the Arkansas Supreme Court in applying an identical definition, the statute "only requires physical helplessness, not total incapacity." (Emphasis added.) Dabney v. State, supra, 326 Ark. at 385. Second, the Appellate Division's decision in Huurre, even if it comprehensively reflects the state of the law in New York, nevertheless is both nonbinding17 and, in my view, a wrongly decided case that simply cannot be reconciled with the state high court's prior admonition in People v. Teicher, supra, 52 N.Y.2d at 649, 422 N.E.2d 506, 439 N.Y.S.2d 846, namely, that physical helplessness is largely a question of fact for the trier. Moreover, Huurre is only superficially similar to the present case on the basis of the disabilities suffered by the victim therein as described in the opinion, and is distinguishable because, although it, like the present case, contained some evidence that the victim's "lack of speech does not inhibit her from communicating when she wants or does not want something"; People v. Huurre, supra, 193 App. Div.2d at 307, 603 N.Y.S.2d 179; the evidence of the victim's responsiveness to medical examinations in Huurre was the polar opposite of that considered by the jury in this case through the testimony of Reyes, Bovienzo and Espina. Specifically, the victim in Huurre actively communicated her desire to avoid the examination and physically tried to "get off the examining table and jumped back when [the physician] approached her with a tube. The [physician] finally became discouraged and left the room without having completed the examination. The victim did receive a complete gynecological examination later that day at the clinic, but in order to do so she had to be strapped down and her legs held apart by two or three people." Id. at 307-308, 603 N.Y.S.2d 179; see also id. at 308, 603 N.Y.S.2d 179 (The court noted that "when the victim is given medicine at the institution in which she resides she often backs away and shakes her head, indicating that she does not want to take the medicine. Another example of the victim's ability to communicate occurred when she cut her head and was taken to the hospital. She covered her wound with her hand when the doctor tried to look at it."). The victim in Huurre is, then, distinguishable from the victim in the present case, who exhibited to her physicians no such ability to communicate or resist gynecological examinations.18

Finally, the majority, in apparent agreement with the defendant's characterization of the state's factual arguments as "radical and untenable reconstruction[s] of how juries may consider and apply evidence"; (internal quotation marks omitted) see footnote 13 of the majority opinion; relies on State v. Scruggs, 279 Conn. 698, 905 A.2d 24 (2006), and declines to consider the state's factual arguments on the ground that they were not raised at trial, and thus constitute the oft-derided appeal by ambuscade. In Scruggs, this court concluded that, "in order for any appellate theory to withstand scrutiny ... it must be shown to be not merely before the jury due to an incidental reference, but as part of a coherent theory of guilt that, upon [review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise cognizable sense. We adopted this rule as the standard by which to gauge whether evidence introduced at trial, but not relied on by the state in its legal argument, is properly cognizable by an appellate court when evaluating the sufficiency of the evidence." (Internal quotation marks omitted.) Id. at 718, 905 A.2d 24; see also id. at 718-19, 905 A.2d 24 (rejecting state's attempt to argue applicability of subjective standard on appeal after record revealed that it had based its case at trial on objective standard, namely, that conditions in defendant's argument would have been injurious to any child under General Statutes § 53-21); State v. Robert H., 273 Conn. 56, 83-85, 866 A.2d 1255 (2005) (under "theory of the case doctrine," state could not rely, on appeal, on sexual act by defendant, evinced in record, to support jury's verdict in response to sufficiency challenge when state did not present that particular act at trial as culpable conduct).

I respectfully disagree with the majority's application of Scruggs and somewhat restrictive reading of the record in the present case and the manner in which this issue was tried.19 My reading of the record reveals that the victim's physical helplessness was, although an essential element of the offenses charged, not a significant factual matter tried to the jury. Rather, the defendant pursued this issue primarily as a question of law to be determined by the trial court in his motion for a judgment of acquittal and postjudgment motions, and the state responded accordingly. In my view, the state's factually based arguments in this appeal are consistent with its argument before the trial court in response to the defendant's motions, namely, that the victim's ability to communicate consent at the time of the assault was a credibility based question of fact. Indeed, after the trial court determined, in denying the defendant's motions, that there was sufficient evidence of physical helplessness to present a jury question, the parties' summations bear out that the primary factual issue argued to the jury was whether the defendant had committed the sexual acts in question, rather than the victim's physical helplessness under the statute — with the victim's physical attributes, such as her bite and startle reflexes, rendering impossible the allegations that the victim had performed oral sex on the defendant.20 Thus, in my view, the state's arguments in this certified appeal are consistent with how the case was tried, both with respect to legal matters determined by the trial court and factual matters argued to the jury.21

In conclusion, I would hold that, given the wide range of evidence admitted in this trial concerning the victim's responses to various stimuli and her communication abilities, the resolution of credibility issues and the drawing of inferences from the wealth of conflicting testimony adduced at trial was grist for the jury's mill, and not for a majority of this court to redraw on appeal by impermissibly sitting as the "thirteenth juror."22 See, e.g., State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005) ("[W]e do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." [Internal quotation marks omitted.]). Thus, although the majority's explication of the evidence in this case is an accurate recitation of much of the trial record, its approach simply is inconsistent with our well settled review of sufficiency challenges, which are conducted with an eye toward sustaining jury verdicts, even those with which this court may disagree. See, e.g., State v. Ovechka, supra, 292 Conn. at 540-41, 975 A.2d 1. Thus, I conclude that the Appellate Court improperly determined that there was insufficient evidence that the victim was physically helpless as that term is defined by § 53a-65 (6), and would reverse its judgment and remand the case to that court with direction to affirm the judgment of conviction.

Accordingly, I respectfully dissent.