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State v. Acosta

Appellate Court of Connecticut

February 2, 2016

STATE OF CONNECTICUT
v.
ROBERTO ACOSTA

Argued December 3, 2015.

Substitute information charging the defendant with two counts of the crime of risk of injury to a child and with the crime of sexual assault in the first degree, brought to the Superior Court in the judicial district of Danbury and tried to the jury before Pavia, J.; verdict and judgment of guilty, from which the defendant appealed.

SYLLABUS

Convicted, after a jury trial, of two counts of the crime of risk of injury to a child and with the crime of sexual assault in the first degree, the defendant appealed. The trial court had permitted the state to present evidence of the defendant's prior uncharged sexual misconduct arising out of a separate incident involving another child, J. On appeal, the defendant argued that the trial court improperly admitted J's testimony pursuant to State v. DeJesus (288 Conn. 418, 953 A.2d 45) because the incident with J was too remote in time due to a hiatus of twelve years between the charged and uncharged misconduct, and because the incident was not sufficiently similar in either severity or kind to the crimes charged here. Held that the defendant could not prevail on his claim that the trial court abused its discretion in admitting J's testimony concerning his prior uncharged sexual misconduct, that evidence having been relevant because it was not too remote in time from the charged misconduct and it was sufficiently similar to the charged sexual abuse: this court declined to adopt a bright line rule that uncharged sexual misconduct that occurred more than ten years before the charged conduct is inadmissible, as the remoteness in time of a prior incident is but one factor in determining its relevance; furthermore, the uncharged misconduct with J was sufficiently similar to the charged assault, as J was similar to both the victim here and a third minor witness, who had testified about the defendant's prior uncharged acts of sexual misconduct, in that all were prepubescent female family members of the defendant and the initial stage of the assault in each case was similar.

Daniel J Foster, assigned counsel, for the appellant (defendant).

Brett R. Aiello, special deputy assistant state's attorney, with whom were Stephen J. Sedensky III, state's attorney, and, on the brief, Deborah P. Mabbett, senior assistant state's attorney, for the appellee (state).

Lavine, Alvord and Sullivan, Js. ALVORD, J. In this opinion the other judges concurred.

OPINION

Page 809

ALVORD, J.

[162 Conn.App. 775] The defendant, Roberto Acosta, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), and one count of risk of injury to a child in violation of § 53-21 (a) (2). The charges arose from an incident involving the defendant's niece, A,[1] that occurred in 2009. On

Page 810

appeal, the defendant claims that the court improperly allowed the state to present evidence of uncharged misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. One afternoon in the spring of 2009, A, who was twelve years old and in sixth grade, had returned from school and was watching television at her home in Danbury. She lived with her parents and older brother, but she was alone at the time. Her parents were at work and were not expected until 6 or 7 p.m.

When A's dog started barking, she looked outside and saw her uncle, the defendant, approaching the front door. He had not previously visited their home, and he did not live in the area. She opened the door and greeted him with a hug and a kiss because " he was family." After chatting for a bit, A took the defendant for a tour of the house. He asked where her parents were, and she told him that they would not be home until 6 p.m. [162 Conn.App. 776] The tour concluded in her bedroom, where she proceeded to show the defendant her snow globe collection. They continued to talk about the family, generally " catching up," when he told her that she looked beautiful. He ...


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