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State v. Tirado

Court of Appeals of Connecticut

May 8, 1990

STATE of Connecticut

Argued Sept. 13, 1989.

Certification Denied June 21, 1990.

Page 253

[21 Conn.App. 450] Brian J. Farrell, with whom was Kevin D. Parsons, Wallingford, for appellant (defendant).

Leah Hawley, Deputy Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (state).


BORDEN, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21. He claims that the trial court erred (1) in admitting certain evidence of uncharged misconduct that did not occur within the applicable statute of limitations period, (2) in ruling in limine that the state could, on cross-examination, ask certain questions to impeach the defendant's proposed character witnesses, and (3) in denying his motion for a judgment of acquittal. He also

Page 254

claims that General Statutes § 53-21 is unconstitutionally vague as applied to the facts of this case. We find no error.

In the first count of the amended information, the state charged that on diverse dates from approximately August 27, 1982, through May, 1984, the defendant wilfully caused or permitted the victim, who was under the age of sixteen, to be placed in a situation where her morals were likely to be impaired "by kissing the victim, exposing himself in front of the victim and requesting her to engage in sexual contact." In the second count, the state claimed that, in the same time period, the defendant committed certain acts likely to impair the victim's morals, namely, "having contact [21 Conn.App. 451] with the intimate parts of the victim and having the victim perform oral sex on [the defendant]."

The jury could reasonably have found the following facts. The defendant is the paternal uncle of the female victim, who was born on January 10, 1969. Between August, 1982, and May, 1984, there was a continuing course of sexual conduct between the defendant and the victim. This conduct included the defendant's masturbating in front of the victim, making the victim masturbate him by putting her hand on his penis, forcing the victim to perform oral sex on him, and kissing and touching the victim, both with her clothes on and off. These incidents occurred in the victim's home, where she lived with her parents and brother. The victim described her relationship with the defendant during this period of time as "incestuous." She also testified that the defendant first began touching her sexually when she was less than nine years old, and that the sexual conduct included an act of vaginal intercourse and an act of cunnilingus. She further testified that the conduct continued until May, 1984, when she realized that she could stop the defendant, and did so.

The defendant denied that any of the conduct described by the victim took place. He testified, and introduced corroborating evidence, that during the time period in question he was unable to perform sexually due to medication he was taking for a heart condition. He also testified that the victim knew of an affair he claimed to have had with her mother between 1967 and 1980, and that her testimony was in retaliation against him for that affair.


The defendant first claims that the court erred in admitting evidence of uncharged sexual misconduct by him with the victim occurring prior to August 27, 1982. Events occurring prior to that date would be outside [21 Conn.App. 452] the five year statute of limitations period applicable to the charges against the defendant. [1] When the evidence was admitted, the court gave a limiting instruction. See footnote 2, infra. The defendant takes no issue with the limiting instruction given by the court. See General Statutes § 54-193(b). Rather, the defendant claims that the court should have sustained his objections to the victim's testimony regarding their sexual conduct that occurred prior to August 27, 1982, and that no limiting jury instruction was sufficient to overcome the prejudicial effect of this erroneously admitted evidence. We disagree.

The defendant's claim is controlled by State v. Ouellette, 190 Conn. 84, 93-95, 459 A.2d 1005 (1983). Evidence of a defendant's prior sexual misconduct with his victim is admissible to prove, inter alia, a pattern of criminal activity, provided that the trial court determines the probative value of such evidence outweighs its prejudicial effect, and that the court also gives an appropriate limiting instruction. Id. In this case, the evidence was highly probative of the defendant's continuing course of sexual conduct with the victim, and the court did not abuse its discretion in finding that the probative value of the evidence outweighed its prejudicial effect. Moreover, the court appropriately instructed the jury regarding the limited purpose of the evidence, [2] in accordance with the language

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approved [21 Conn.App. 453] by the court in State v. Ouellette, supra, 95, 459 A.2d 1005; namely, that the evidence " 'was not to be considered as proof of offenses other than [those] charged' " in the information. Id., quoting State v. Sebastian, 81 Conn. 1, 4, 69 A. 1054 (1908).

The fact that the evidence related to conduct occurring beyond the statute of limitations period does not affect its admissibility under this rule. The evidence was admitted for the limited purpose of showing the defendant's pattern of criminal sexual activity with the victim. While the statute of limitations protects the defendant against prosecution for crimes committed beyond its reach; State v. Whiteman, 204 Conn. 98, 526 A.2d 869 (1987); it does not serve as a limitation on the admissibility of otherwise admissible evidence probative of a course of criminal activity with the victim.

State v. Tinsley, 180 Conn. 167, 429 A.2d 848 (1980), on which the defendant relies, is not to the contrary. Tinsley does not hold that otherwise admissible evidence of the defendant's prior misconduct is barred by the statute of limitations. In that case, evidence of sexual activity occurring outside the statute of limitations period was inadmissible because it did not fall within any of the limited purposes constituting exceptions to the rule barring evidence of uncharged crimes. See id., 170, 429 A.2d 848. The court held that the inadmissible evidence was [21 Conn.App. 454] so prejudicial that it could not be remedied by the court's limiting instruction. Id., 171, 429 A.2d ...

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