A defendant is not entitled, every time the issue of consent is raised, to an instruction pursuant to the 1989 Connecticut Supreme Court's decision in State v. Smith, "that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented." Following a jury trial, Tyler Gode was convicted of crimes, including sexual assault in the first and fourth degree, unlawful restraint and threatening. He appealed claiming, first, that the court improperly refused to instruct the jury under Smith, for his theory that he reasonably believed the victim consented to sexual intercourse. The Appellate Court affirmed the judgments. A Smith instruction should be given only when it is requested and warranted. A Smith instruction is warranted when the evidence suggests an ambiguity in the victim's conduct and the way the defendant perceived such conduct. This case did not involve ambiguous conduct by the victim. The defendant's idiosyncratic self-serving interpretation of the victim's conduct did not make that conduct ambiguous. The defendant and victim's conflicting accounts of what occurred did not create the type of ambiguity precedent establishes is a predicate for a Smith instruction. The victim testified that the defendant pinned her down, forcibly removed her clothing and that she resisted and told him to stop several times, but he proceeded to penetrate her vaginally. He argued that he believed the sex was consensual, including because the victim was on top of him during intercourse. The jury believed the victim's testimony instead of the defendant's testimony. It was the province of the jury as fact finder to weigh the conflicting evidence and make credibility determinations. The Appellate Court also was not persuaded by the defendant's claim that the trial court improperly denied his request to instruct the jury on inconstancy of accusation. A constancy of accusation instruction is given to counteract lingering misconceptions that victims of sexual assault always come forward promptly to report their assault. No justification was found to expand this doctrine to include prior inconsistent statements by those victims. The court's general charge on credibility sufficiently alerted the jury to consider inconsistencies in the victim's testimony to assess her credibility.

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