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State v. Roberto Q.

Court of Appeals of Connecticut

February 14, 2017

STATE OF CONNECTICUT
v.
ROBERTO Q.[*]

          Argued October 13, 2016

         Appeal from Superior Court, judicial district of Waterbury, Cremins, J.

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

          Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Amy L. Sedensky, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Alvord and Gruendel, Js.

          OPINION

          GRUENDEL, J.

         Following a jury trial, the defendant, Roberto Q., was found guilty 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 third degree in violation of General Statutes § 53a-72a (a) (2), one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (B), and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The defendant's niece, S.A. (victim), was between the ages of twelve and fourteen years old at the time of the assaults.[1] The court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective sentence of twenty years incarceration, suspended after ten years, followed by fifteen years of probation.

         On appeal, the defendant claims that the court improperly instructed the jury on the use of constancy of accusation evidence, and that the court erred by denying his motion for a mistrial after the state inadvertently elicited testimony concerning uncharged prior misconduct by the defendant. The state responds that the court properly instructed the jury on the use of constancy evidence, and that the court issued a curative instruction regarding the uncharged prior misconduct testimony, thereby avoiding the need for a mistrial. We conclude that the court's jury instruction was proper, and that the court did not err in denying the defendant's motion for mistrial. Accordingly, we affirm the judgment of the trial court.

         The record reveals the following relevant facts and procedural history. The victim was born in November, 1996, in Puerto Rico. She, her mother, sister, and brother moved to Waterbury in 2007. The defendant, who also had lived in Puerto Rico, moved to Waterbury as well. The period of charged misconduct was from June, 2009 to June, 2011. The victim and her family lived in New York City from 2009 until at least April, 2011, before returning to Waterbury. In April, 2011, the victim wrote a journal entry in which she referenced the defendant.[2] Her mother discovered the journal entry in June, 2011, after the family had moved back to Water-bury. About a week later, the victim told her mother that the defendant had touched her body, specifically her vagina, in a sexual manner. She also stated that the defendant had touched her sister, C.A., sexually as well.

         About a month after the victim's mother read the diary entry, the family held a meeting at the home of the defendant's mother to discuss the victim's allegations. The victim, C.A., their parents, their brother, the defendant, his parents, and his brother attended the meeting. C.A. and her mother testified at trial that when the victim announced that the defendant had been touching her, he became upset and threw a bottle of iced tea against the wall. After the meeting, the victim's mother took the victim and C.A. to the police department to file a report against the defendant.

         The state filed two informations against the defendant, one alleging offenses related to the victim, and one alleging offenses related to C.A. The court consolidated the cases for trial.[3] At the trial, the victim testified that she often visited the defendant at the Waterbury home he shared with his three children and their mother. The victim also testified that from 2009 to April, 2011, when she was living in New York, she and her sister would sometimes stay overnight at the defendant's house on weekends. After the victim and her family moved back to Waterbury, she was at the defendant's house almost every day until June, 2011, when her mother discovered her journal entry pertaining to the defendant.

         The victim testified that during these visits the defendant touched her sexually many times in his kitchen and living room. In the kitchen, the defendant would lean against the table, hold her with her back to his chest, and touch her vagina over her clothes and then inside her vagina with his fingers. Afterward, the defendant would ask the victim to forgive him and promise never to do it again. On one occasion, the defendant's neighbor, Joshua Roman, walked into the kitchen while the defendant was touching her. The victim testified that the defendant was touching her breasts when Roman interrupted, but Roman testified that he only witnessed the defendant caressing her back. In the living room, the defendant would have the victim sit in his lap on the couch covered by a sheet while he put his fingers in her vagina. Additionally, the victim testified that, on another occasion, the defendant kissed her and put his fingers inside her vagina while they were in the back seat of his car and his children were in the front seat.

         C.A. also testified regarding the defendant's conduct. Among other incidents, she testified that the defendant began touching her in a sexual manner when she was six years old and living in Puerto Rico. After C.A. testified as to this alleged misconduct, the court excused the jury and noted that the misconduct at issue was not included in the state's disclosure of uncharged misconduct. When the jury returned, the court instructed the jury to disregard any evidence concerning any alleged incidents involving the defendant and C.A. that took place in Puerto Rico.

         Prior to the conclusion of the state's evidence, the defendant filed a motion for mistrial. In his motion, the defendant claimed that ‘‘the introduction of testimony by the state, through C.A., alleging incidents of sexual contact by the defendant in Puerto Rico resulted in a violation of the defendant's right to due process under the state and federal constitutions, his right to a fair trial, and his right to effective assistance of counsel.'' Specifically, the defendant asserted that the state failed to give notice of certain allegations of sexual contact between the defendant and C.A. prior to 2009 and, therefore, improperly elicited testimony concerning these allegations. The court denied the motion, concluding that the improper solicitation of testimony on this subject did not rise to the level of denying the defendant a fair trial, specifically noting that the court had sua sponte issued a curative instruction to the jury before any objection by the defendant had been made.

         In addition to the testimony from the victim and C.A., the jury heard testimony from two constancy of accusation witnesses. The first was Roman, who testified about the incident in the defendant's kitchen where he saw the defendant caressing the victim's back. Roman walked into the living room, where the victim joined him a few minutes later. At that point, he testified that the victim said to him, ‘‘ ‘I told you that he touched me and all that.' '' After Roman's testimony, the court instructed the jury on constancy of accusation testimony.[4]

         The second constancy witness was the victim's mother, who testified that, about a week after she found the victim's diary, the victim told her that the defendant had ‘‘touched her in a sexual way.'' Although C.A. was not a part of that particular conversation, she also told her mother later that same day that the defendant had touched her sexually while they were at his apartment. After the ...


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