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State v. Carlos E.

Appellate Court of Connecticut

July 21, 2015

STATE OF CONNECTICUT
v.
CARLOS E. [*]

Argued February 20, 2015

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Substitute information charging the defendant with three counts of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of Windham and tried to the jury before Boland, J.; verdict and judgment of guilty, from which the defendant appealed to this court.

Affirmed.

SYLLABUS

Convicted of three counts of the crime of risk of injury to a child in connection with his sexual abuse of the child victim, the defendant appealed to this court. Held :

1. The defendant could not prevail on his claim that the trial court abused its discretion by permitting the state to file an amended long form information after the start of trial without demonstrating good cause or that the substitution would not violate his substantive rights; although the state did not appear to attempt to establish that it had good cause to submit an amended information after the start of trial, which changed the dates of the alleged abuse from divers dates in 2004 to divers dates in 2003, and the trial court did not explicitly find good cause to permit such an amendment, in order to establish a due process violation the defendant had to establish that he suffered prejudice as a result of the amendment, and he failed to make such a showing.

2. The defendant's claim that the trial court improperly admitted his statement to police without redacting certain hearsay contained therein was unavailing; even if the court improperly admitted the statement without redaction, the defendant failed to demonstrate that the admission of the unredacted statement was harmful, as the contested portion of the statement added nothing relevant to the state's case that was not already contained in the remainder of the statement and it was, thus, merely cumulative of other portions of the statement.

3. Contrary to the defendant's claims, certain statements by the prosecutor during closing argument did not improperly appeal to the passions and emotions of the jurors through the use of sarcasm, as the challenged comments were an attempt to call into question a theory of defense that the victim was not credible and were not an attempt to disparage the defendant, and the prosecutor's repeated use of the phrase " star witness" to describe the defendant's wife, who was a key witness for the defense, was factually accurate and was not improper; moreover, it was not improper for the prosecutor to outline the evidence and its reasonable inferences for the jury and then to explain, on the basis of such evidence, that the witness had no motive to lie, and certain comments of the prosecutor regarding the defendant's written statement to the police were based on the evidence and did not amount to an expression of opinion concerning the defendant's guilt.

4. The prosecutor improperly argued certain facts that were not in evidence when he stated to the jury that the victim was not pregnant in junior high school when she told a friend about the assaults, there having been no evidence to support such an assertion; nevertheless, the prosecutorial impropriety did not deprive the defendant of a fair trial, as the comment did not amount to severe impropriety, which was evinced by defense counsel's lack of objection or request for any curative measure, the impropriety was not frequent and was confined to a brief comment during rebuttal argument, the issue of whether the victim was pregnant in junior high school when she told her friend of the alleged abuse by the defendant was not central to the critical issues in the case, and although the state's case was not particularly strong, it was not so weak as to be overshadowed by a single improper comment that had no evidentiary basis.

Alice Osedach, assistant public defender, with whom was Jesse Smolin, certified legal intern, for the appellant (defendant).

Melissa Patterson, assistant state's attorney, with whom were Patricia M. Froehlich, state's attorney, and Andrew J. Slitt, assistant state's attorney, for the appellee (state).

Lavine, Mullins and Bishop, Js. In this opinion the other judges concurred.

OPINION

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[158 Conn.App. 648] MULLINS, J.

The defendant, Carlos E., appeals from the judgment of conviction of three counts of risk of injury to a child pursuant to General Statutes ยง 53-21 (a) (2). On appeal, the defendant claims: (1) he was prejudiced in his defense when the trial court permitted the state to file an amended long form information without demonstrating good cause or that the substitution would not violate his substantive rights; (2) the court improperly admitted, without redacting the double hearsay contained therein, the defendant's written statement to police; and (3) he was deprived of a fair trial due to prosecutorial impropriety in closing argument. Although we agree that one of the prosecutor's comments was improper, we, nevertheless, conclude that it was harmless. We reject the defendant's other claims and, accordingly, affirm the judgment of the trial court.

[158 Conn.App. 649] The jury reasonably could have found the following relevant facts. The victim, who was born in August, 1993, lived with her mother and her two older brothers in an apartment complex. The victim's aunt, who was the sister of the victim's mother, also lived in the apartment complex with the defendant and their four children.

In 2003, the victim was in the third grade.[1] During that year, the defendant was unemployed and he stayed home to care for his children while his wife worked the 3:30 p.m. to 11:30 p.m. shift at her job. The defendant also babysat the victim both before school and after school, until the victim's mother returned home from work. On three occasions during 2003, the defendant pulled down the victim's pants and underwear and inappropriately touched her vaginal area and buttocks, and, on the third occasion, he also made the victim touch his erect penis and he rubbed his penis against her leg. The defendant also threatened the victim, telling her that he would kill her mother and brothers if she told anyone about his actions.

The victim remained silent until she was in seventh grade, which was in 2007, when she told her best friend about the abuse. Then, several years later, in 2011, when the victim was seventeen years old, she told her mother that she was pregnant. Approximately one and one-half weeks later, the victim disclosed to her mother that she had been sexually abused by the defendant. The victim's mother insisted that the victim discuss these events with a counselor, who reported the abuse to the police. The victim then met with the police and gave a statement. The police, thereafter, questioned the defendant, who also gave a written statement.

The state charged the defendant with three counts of risk of injury to a child. During trial, the defendant's [158 Conn.App. 650] theory of defense was that the victim concocted the abuse allegations in order to divert focus from her pregnancy, and he could not have abused the victim because he never had babysat the victim when his wife was at work, but that his wife always had been present when he babysat the victim. The jury found the defendant guilty, and the court accepted the verdict and sentenced the defendant to a total effective sentence of thirteen years imprisonment, execution suspended after seven years, with twenty years of probation. This appeal followed.

I

The defendant claims that the court abused its discretion by permitting the state to file an ...


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