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State v. Fernando V.

Court of Appeals of Connecticut

December 27, 2016

STATE OF CONNECTICUT
v.
FERNANDO V. [*]

          Argued Date: October 20, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, geographical area number twenty, Holden, J.

          Mary A. Beattie, assigned counsel, for the appellant (defendant).

          Denise 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.

          OPINION

          PRESCOTT, J.

         The 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defendant argues that the boyfriend's testimony was relevant to counter the state's evidence that she had become more withdrawn or exhibited other characteristics generally associated with sexually abused young adults, as testified to by the state's expert witness, as well as to impeach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 trial.[1]

         The 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.[2] 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 matter.

         When 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.

         After 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.

         B's 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 appeal followed.

         The 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 error.[3]

         The 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.

         The 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 colloquy followed:

‘‘[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 previously.
‘‘[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.
‘‘Withdraw[al] is 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.''

(Emphasis added.)

         The 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.

         In 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 friends.[4]

         B 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.[5]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.[6]

         Similarly, 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 exchange occurred:

‘‘[Defense Counsel]: Now, you also testified that [the defendant] had some issues with [B] talking to boys. Is that correct?
‘‘[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 that correct?''

         At this 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.''

         On 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.''

         During 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 girlfriend?
‘‘[P]: Yes.
‘‘[Defense Counsel]: And have you continuously gone out with her, or been in a relationship with her, as boyfriend ...

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