Date: October 20, 2016
from Superior Court, judicial district of Stamford-Norwalk,
geographical area number twenty, Holden, J.
A. Beattie, assigned counsel, for the appellant (defendant).
B. Smoker, senior assistant state's attorney, with whom,
on the brief, were Richard J. Colangelo, Jr., state's
attorney, and Nadia C. Prinz, assistant state's attorney,
for the appellee (state).
Keller, Prescott and Mullins, Js.
defendant, Fernando V., appeals from the judgment of
conviction, rendered following a jury trial, of one count of
sexual assault in the second degree in violation of General
Statutes § 53a-71 (a) (1), one count of sexual assault
in the second degree in violation of General Statutes §
53a-71 (a) (4), and two counts of risk of injury to a child
in violation of General Statutes § 53-21 (a) (2). The
defendant claims on appeal that the trial court improperly
precluded him from presenting testimony from the
complainant's boyfriend of four years. In particular, the
defendant argues that the boyfriend's testimony was
relevant to counter the state's evidence that she had
become more withdrawn or exhibited other characteristics
generally associated with sexually abused young adults, as
testified to by the state's expert witness, as well as to
impeach testimony that the defendant had tried to prevent the
complainant from associating with boys of her own age. We
agree that the boyfriend's testimony improperly was
excluded by the court and that its exclusion was not harmless
error under the circumstances of this case. Accordingly, we
reverse the judgment of conviction and order a new
jury reasonably could have found the following facts. When
the complainant, B, was nine years old, she moved from Mexico
to Stamford to live with her mother and the defendant, her
stepfather. At that time, B's younger brother,
grandmother, and uncle also lived with B's mother and the
defendant. The grandmother, however, soon returned to Mexico,
and B was alone more frequently with the defendant because
her mother and uncle were working. When B was approximately
twelve years old, the defendant, on more than one occasion,
touched her breasts, sometimes putting his hand inside of
B's shirt and sometimes touching her over her shirt. B
confided in her mother that the defendant was
‘‘trying to touch'' her breasts. B's
mother confronted the defendant, but he denied any
inappropriate behavior, and nothing further came of the
she was thirteen, the family moved to a condominium that the
defendant and B's mother had purchased in Norwalk.
B's mother began to work more hours, and B's brother
often would play outside with friends, leaving B alone with
the defendant. The defendant continued to touch B as he had
while in Stamford, but he also began to have sexual
intercourse with B. The first time the defendant engaged in
intercourse with B, he was intoxicated and made her go into
the bathroom. He told her he wanted to ‘‘do it
this one time, '' unbuckled his pants, and inserted
his penis inside B's vagina.
that first incident, the defendant continued to touch B
inappropriately or have penile-vaginal sexual intercourse
with B several times a month. The assaults generally occurred
in his bedroom. On most occasions, the defendant was sober
and promised B that it would be the last time. The assaults
continued, however, until B was seventeen years old. After
the defendant began having intercourse with B, B did not tell
her mother about the assaults because B was afraid of how her
mother would react, namely, that her mother would blame B. At
some point, however, B's mother confronted B about
whether the defendant had ‘‘made [B] have sex
with him, '' and B fully disclosed the details of the
assaults to her mother at that time.
mother contacted the police, and, following an investigation,
the defendant was arrested and charged. A jury found the
defendant guilty of two counts of sexual assault in the
second degree and two counts of risk of injury to a child. He
received a total effective sentence of ten years of
incarceration, followed by ten years of special parole. This
defendant claims on appeal that the court improperly
precluded him from presenting testimony from B's longtime
boyfriend, P. According to the defendant, P's testimony
was relevant to demonstrate that B had not exhibited any
behavioral characteristics or changes in personality
consistent with those sometimes exhibited by sexual assault
victims, as described to the jury by an expert witness
offered by the state. The defendant maintains that the
testimony also was admissible to contradict aspects of the
testimony given by B and her mother, both of whose
credibility was central to the state's case against him.
The defendant argues that the court abused its discretion by
excluding the testimony from the jury without a proper basis
for doing so, and that the error was not harmless because the
excluded testimony, if presented to the jury, could have had
a substantial impact on the verdict. The state, by contrast,
asserts that P's testimony was offered solely as
extrinsic evidence for impeachment purposes, and that the
court properly excluded the proffered testimony because it
was both collateral in nature and entirely consistent with
the testimony given by B and her mother. We agree with the
defendant that P's testimony was improperly excluded by
the court and that its exclusion was not harmless
following additional facts are relevant to our resolution of
the defendant's claim. During its case-in-chief, the
state presented testimony from a number of witnesses. With
respect to the issues before us on appeal, the relevant
testimony came from the state's expert witness on child
sexual abuse and delayed disclosure, B, and B's mother.
state's expert witness, Larry M. Rosenberg, was a
licensed psychologist and clinical director of the Child
Guidance Center of Southern Connecticut, an outpatient mental
health clinic for children and adolescents. In addition to
testifying on the topic of delayed disclosure in sexual
assault cases, Rosenberg was asked by the state to describe
general behavioral characteristics that often are associated
with sexual assault victims. Specifically, during the
state's examination of Rosenberg, the state asked whether
there were general behavioral characteristics associated with
teenagers and young adults who disclose sexual abuse. This
‘‘[Rosenberg]: Well, if you were going to ask me,
the- in the majority of cases, being sexually abused tends to
most-most typically, but not always, reduce the level of
functioning of the person who has been victimized. So, most
typically, you see changes in their behavior, but not always.
It depends on how-the level at which they were functioning
‘‘[The Prosecutor]: And do symptoms of trauma
always occur within a given time frame after a disclosure or
after the traumatic incident itself?
‘‘[Rosenberg]: No. The diagnostic manual for the
mental health profession is specific about this, that
post-traumatic symptoms can occur as much-as many as years
following a traumatic event occurring.
‘‘[The Prosecutor]: What are some symptoms of
trauma from child sexual assault, that you've seen, in
your practice, with victims who have made a disclosure?
‘‘[Rosenberg]: I previously mentioned
disassociation, the kind of psychic numbing that can go on.
In a more technical term, you know, depersonalization. Sort
of stepping outside of yourself, not recognizing, sort of, be
feeling a part of who you are anymore. That you're not
the same person.
‘‘But in addition to that, typically, symptoms
would be bad dreams, flashbacks of the events that had
occurred, recurring memories of the event that had occurred,
changes in functioning with regard to sleep, with regard to
cognitive functioning, with regard to school functioning.
common. Depression is common. Heightened anxiety,
particularly in the face of anything that is reminiscent of
the event. But likewise, anything that's reminiscent of
the event can cause the person not necessarily to become
overtly anxious, but to manifest that anxiety by becoming
more withdrawn and more numb than they had been previously.
And those are some of the findings, typically.''
mother testified during her direct examination that she had
observed some behavioral changes in B, specifically
indicating that, in the year prior to the defendant's
arrest, B became more withdrawn than usual and would stay in
her room more often. She reiterated those observations on
cross-examination, indicating that when B was sixteen or
seventeen years old, she ‘‘stay[ed] in her room
more often, locked up.'' Both B and her mother
testified that she continued to do well in school, continued
to participate in activities that she enjoyed, such as
playing the flute and reading, and worked part-time without
any significant difficulties or interruptions.
addition to eliciting testimony regarding B's personality
and behavioral characteristics during the time period of the
alleged assaults, the state also questioned B and her mother
regarding the defendant's behavior toward B's male
explained that, beginning in her freshman year of high
school, the defendant would get angry if she tried to
‘‘hang out'' with male friends. He would
make her hang up the telephone if he discovered her talking
to a boy, and would question her about the
conversation.Defense counsel was able to counter this
testimony in part during his cross-examination of B,
eliciting from B that she had dated two boys during high
school, including one during her freshman year, and that the
defendant had not objected to her dating either boy and had
no issues with them.
during its examination of B's mother, the state also
inquired whether the defendant was ‘‘any
different with regard to [B's] friends as girls or her
friends as boys?'' B's mother responded in the
affirmative and, when asked how he was different, she stated,
consistent with B's direct testimony: ‘‘Well,
like, he didn't like for her to go out with male
friends.'' On cross-examination, the following
‘‘[Defense Counsel]: Now, you also testified that
[the defendant] had some issues with [B] talking to boys. Is
‘‘[The Mother]: Yes.
‘‘[Defense Counsel]: How old was [B] when he
raised these concerns?
‘‘[The Mother]: Well, she was already in high
school. The same, sixteen, seventeen, where she wanted to go
out more and he was against that.
‘‘[Defense Counsel]: But isn't it true that
your daughter actually did have a boyfriend in freshman year
in high school?
‘‘[The Mother]: Yes.
‘‘[The Prosecutor]: Objection.
‘‘The Court: Objection's overruled. Isn't
it true? Yes, is the answer. The answer may stand.
‘‘[Defense Counsel]: And [the defendant] never
opposed that relationship. Isn't that true?
‘‘[The Mother]: Well, he wouldn't allow any
friends to show up at the house.
‘‘[Defense Counsel]: Did you ever witness [the
defendant] forbid this boy from coming to the home, ever?
‘‘[The Mother]: Well, yes. Once, when it was her
birthday, we celebrated her eighteenth birthday and we
invited boys and girl friends, and he showed up and he was
very upset, asking why they were still at the house and it
was 10 at night.
‘‘[Defense Counsel]: But what I'm talking
about . . . is, [the defendant] really did not object to her
having a boyfriend in freshman year in high school, and you
didn't witness him come between that relationship, at
all, did you?
‘‘[The Mother]: No. . . .
‘‘[Defense Counsel]: Isn't it true that in
[B]'s second year in high school, she got into a
relationship with a second boy, his name [was P]. Isn't
point, the state objected on the ground of relevancy and on
the ground that the line of questioning was precluded by our
rape shield statute. See General Statutes § 54-86f. The
court asked defense counsel to explain this line of
questioning and whether it went to the mother's
credibility. Defense counsel answered that it did go to the
mother's credibility, but also to the specific conduct of
the defendant. The court overruled the state's objection
but instructed defense counsel that it did not want to get
‘‘bogged down in collateral issues.'' The
court instructed the mother to answer the question, and the
mother's testimony resumed as follows:
‘‘[The Mother]: Yes.
‘‘[Defense Counsel]: And they-and she's still
in this relationship with this boy. Isn't that correct?
‘‘[The Mother]: Yes.
‘‘[Defense Counsel]: And this relationship's
been going on since second year in high school, correct?
‘‘[The Mother]: Yes.''
redirect, the state asked B's mother if the defendant was
aware that B had a boyfriend in high school, to which the
mother answered: ‘‘Yes, I believe so.''
his presentation of evidence, the defendant attempted to call
as a witness B's longtime boyfriend, P. Just a few
questions into the defendant's direct examination of P,
defense counsel asked P how he knew B, and P answered that
they had been in a relationship for the past four years. At
that point, the court, sua sponte, excused the jury. The
court stated to counsel that it was ‘‘not trying
collateral matters'' but indicated to counsel that it
would entertain an offer of proof. The following testimony
was then heard outside of the presence of the jury:
‘‘[Defense Counsel]: When you say you're in a
relationship, are you-do you consider yourself boyfriend and
‘‘[Defense Counsel]: And have you continuously
gone out with her, or been in a relationship with her, as