Argued, December 11, 2014
Substitute information charging the defendant with the crime of sexual assault in the second degree, brought to the Superior Court in the judicial district of New Haven and tried to the jury before, B. Fischer, J.; thereafter, the court denied the defendant's motion to preclude certain evidence; verdict and judgment of guilty, from which the defendant appealed to this court.
Convicted of the crime of sexual assault in the second degree, the defendant appealed to this court. The defendant's conviction stemmed from an incident in which he sexually assaulted the victim while she was sleeping after having consumed alcohol. At trial, the state sought to introduce evidence relating to a prior instance of uncharged sexual misconduct by the defendant against the victim. The trial court determined that evidence of the defendant's uncharged prior sexual misconduct toward the victim was admissible for the purpose of showing propensity under the standard set forth in State v. DeJesus (288 Conn. 418, 953 A.2d 45) and our code of evidence (§ 4-5 [b]).
1. The defendant could not prevail on his claim that the trial court improperly admitted evidence of his uncharged prior sexual misconduct toward the victim for the purpose of showing his propensity to engage in the type of sexual misconduct with which he was charged: the defendant failed to preserve for appeal the issue of the evidence's admissibility under DeJesus because he did not properly object to it at trial on that ground, and defense counsel waived the claim because he conceded at trial that evidence of the prior sexual misconduct toward the victim was propensity evidence under DeJesus ; furthermore, contrary to the defendant's claim, DeJesus does not limit the use of prior sexual misconduct evidence for the purpose of showing propensity to child sexual assault cases, and, thus, plain error review of the defendant's claim was not warranted as he failed to demonstrate any specific error with regard to the trial court's application of our code of evidence and case law.
2. The trial court properly determined that the probative value of the evidence of the defendant's uncharged prior sexual misconduct toward the victim outweighed its prejudicial effect: because the uncharged prior sexual misconduct and the charged sexual misconduct occurred within six months of each other and were strikingly similar in that both involved the same victim being sexually assaulted by the defendant while she incapacitated, the prior sexual misconduct evidence was highly probative of the defendant's sexual interest in the victim, as well as his propensity to engage in the type of criminal sexual behavior with which he was charged; furthermore, because both incidents of sexual misconduct were similar, there was no risk that the evidence would arouse the emotions of the jurors and cause them to find the defendant guilty based on his bad character, and, thus, the evidence was not unduly prejudicial, particularly in light of the court's limiting instructions.
3. The defendant's unpreserved challenges to the trial court's limiting instructions to the jury concerning the proper use of the uncharged prior sexual misconduct evidence did not warrant review under State v. Golding (213 Conn. 233, 567 A.2d 823) or the plain error doctrine; the defendant failed to object to the trial court's limiting instructions and thus waived his right to challenge them on appeal, the defendant induced any claimed error by including the challenged portions of the instructions in his request to charge, and the defendant's claimed ambiguity in the jury instructions did not rise to the level of plain error.
Katherine C. Essington, for the appellant (defendant).
Dan A. Brody, certified legal intern, with whom were Harry Weller, senior assistant state's attorney, and, on the brief, Michael Dearington, state's attorney, and Gary W. Nicholson, senior assistant state's attorney, for the appellee (state).
Gruendel, Alvord and
[157 Conn.App. 758] The defendant, Sheldon A. Schuler, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (3). On appeal, the defendant claims that the court improperly [157 Conn.App. 759] (1) admitted evidence of the defendant's prior sexual misconduct toward the victim and (2) instructed the jury concerning such prior misconduct evidence. We affirm the judgment of the trial court.
The jury could reasonably have found the following facts from the evidence presented at trial. On January 27, 2012, the victim was celebrating her thirtieth birthday at her home with several friends and family members. Among those in attendance were the victim's three older sisters, CM, LM and SM, and the defendant. The defendant cohabitated with SM at the time and is the father of three of her children.
During the party, the victim drank three shots of alcohol and one wine glass sized cup of vodka punch and smoked marijuana. At around 12 a.m., the victim started to take a sip of vodka punch when she felt a spinning sensation in her head. One of her sisters, CM, observed the victim stumble and noted that she appeared to be intoxicated. Shortly afterwards, the victim decided to go upstairs and lie down. After going upstairs, she felt cool air coming from a fan in her son's bedroom and decided to enter that room instead of her own bedroom. She lay down on the floor, hoping that the cool air would alleviate the spinning sensation in her head. When SM entered the room and asked the victim if everything was okay, the victim responded that something was wrong. The victim then removed her jewelry and shirt and fell asleep. SM noticed that the victim appeared to be intoxicated.
At around 1:30 a.m., the party ended and SM and KS, a friend of the victim, went upstairs to say goodbye. SM placed the victim's cell phone near her head and [157 Conn.App. 760] told her that they had cleaned up and were going to leave. At that point, only CM, SM, KS, and the defendant remained
in the house. After locking the doors, CM drove SM and the defendant to their home. KS left the victim's house separately.
At approximately 1:40 a.m., SJ, the victim's boyfriend, arrived at the victim's house. He had been invited to the party but had been unable to attend. On his way over to the victim's house, he placed several calls to the victim's cell phone but received no response. Upon arriving at the house, he noticed that the lights were on, and he proceeded to knock on the door, ring the doorbell, and shout into the mailbox slot. After receiving no response, SJ left the victim's house and went out with a friend. SJ testified that the victim was a very heavy sleeper, especially after consuming alcohol.
Meanwhile, SM and the defendant arrived back at their home. Just before 2:46 a.m., the defendant told SM that he needed to go to the bank and to buy cigarettes. The defendant walked several blocks from his house and then called a taxi using SM's cell phone. The taxi picked up the defendant at 2:53 a.m. and dropped him off at the victim's house. The defendant then entered the victim's house using keys given to him by SM earlier in the night.
At approximately 3 a.m., the victim believed that she was dreaming that someone was on top of her, licking her breasts and vagina, and penetrating her vagina. When the victim awoke, she found the defendant on top of her, subjecting her to sexual intercourse. She quickly pushed the defendant off of her, screamed, and ran into her bedroom. Although it was dark in her son's room, she was able to identify the defendant because the lights in her bedroom were on, casting light into her son's room. The victim heard the defendant walk [157 Conn.App. 761] downstairs and then saw ...