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State v. Acosta

Supreme Court of Connecticut

August 1, 2017

STATE OF CONNECTICUT
v.
ROBERTO ACOSTA

          Argued January 23, 2017

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

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

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

         Syllabus

         The defendant, who was convicted of the crimes of sexual assault in the first degree and risk of injury to a child in connection with an incident in 2009 involving A, his twelve year old niece, appealed to the Appellate Court, claiming that the trial court had abused its discretion in admitting evidence of uncharged sexual misconduct, pursuant to State v. DeJesus (288 Conn. 418), that occurred in 1997 because that incident was too remote in time and was insufficiently similar to the charged conduct. The defendant came to visit A at her family home. The defendant asked A where her parents were, and she responded that they would not be home for several hours. After the defendant complimented A and touched her inappropriately, he sexually assaulted her. The state sought to offer evidence at the defendant's trial of, inter alia, the defendant's prior sexual misconduct involving other female family members, who were between nine and ten years old, for incidents that occurred in 1997 and 2006. With respect to the 1997 incident, the state proffered evidence, over defense counsel's objection, that when the defendant's nine year old niece, J, was visiting her grandmother's home, the defendant blindfolded J and placed her hand on his penis, after which J stated that she was going to tell her parents and ran away. The trial court concluded that the proffered evidence was relevant and that its probative value outweighed the prejudicial effect from its admission. The Appellate Court affirmed the judgment of conviction, and the defendant, on the granting of certification, appealed to this court. Held that the Appellate Court correctly concluded that the trial court had not abused its discretion in admitting the 1997 uncharged sexual misconduct evidence because that evidence satisfied the requirements of DeJesus, as the 1997 incident was not too remote in time and was sufficiently similar to the charged conduct: the 1997 uncharged misconduct was part of a sequence including the 2006 uncharged misconduct and the 2009 charged conduct, and was not an isolated incident, separated from the charged conduct by an unbroken gap of twelve years; moreover, the defendant's conduct with respect to A and J was sufficiently similar as the defendant placed each victim's hand on his penis, and, although the defendant's misconduct toward A escalated to vaginal penetration whereas his conduct toward J culminated in inappropriate contact, the jury reasonably could have inferred that the defendant stopped his actions toward J because she rebuffed him and threatened to report him, and A and J were sufficiently similar victims as both were prepubescent females and nieces of the defendant, and these familial relationships offered the defendant access to the victims and the opportunity for his actions; furthermore, the public policy underpinnings of DeJesus, which justify the admission of this type of evidence because of the unusually aberrant and compulsive nature of the crime of child molestation, were relevant because, with respect to both the 1997 misconduct and the charged conduct, the victims were alone in private places, allowing the defendant to act surreptitiously, in the absence of any neutral witnesses.

         Procedural History

         Substitute information charging the defendant with the crime of sexual assault in the first degree and with two counts of the crime of risk of injury to a child, 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 to the Appellate Court, Lavine, Alvord and Sullivan, Js., which affirmed the trial court's judgment, and the defendant, on the granting of certification, appealed to this court. Affirmed.

          OPINION

          ESPINOSA, J.

         The primary question presented in this appeal is whether evidence of uncharged sexual misconduct that occurred twelve years before a charged offense is too remote to be admissible pursuant to the factors set forth in State v. DeJesus, 288 Conn. 418, 476, 953 A.2d 45 (2008). The defendant, Roberto Acosta, appeals[1] from the judgment of the Appellate Court affirming his judgment of conviction, following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and (2). State v. Acosta, 162 Conn.App. 774, 775, 129 A.3d 808 (2016). The defendant, relying on DeJesus, argues that evidence of twelve year old uncharged sexual misconduct is too remote and insufficiently similar to the charged offenses, that the trial court therefore abused its discretion in admitting it, and that the Appellate Court improperly concluded otherwise.[2] The state counters that the uncharged conduct is not too remote under DeJesus, particularly in light of the similarities between the conduct and the victims. We agree with the state that the trial court acted within its discretion in admitting the evidence and affirm the judgment of the Appellate Court.[3]

         The Appellate Court set forth the following facts and procedural history. ‘‘One afternoon in the spring of2009, A, [4] 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. 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 then sat down on her bed and told her to do the same. The defendant began to rub her leg, shoulder and arms, again repeating that she looked beautiful.

         ‘‘A was beginning to feel uncomfortable with the situation on her bed when the defendant instructed her to remove her shirt. She complied, and he unhooked her bra and started rubbing her breasts. At that point, he took her hand and placed it on his genital area on the outside of his pants. He told her to get undressed while he removed his own clothing. A ‘just followed what he said' because she did not know if he would hurt her. The defendant spread her legs and engaged in penile-vaginal intercourse with her. Approximately fifteen minutes later, after again asking what time her parents would be home, the defendant got dressed, told her ‘to tell [her] parents that he said ‘‘hi, ''' and then left the house. A was ‘confused' and ‘embarrass[ed], ' and decided that she would not tell anyone about what had happened between her and the defendant.

         ‘‘In January, 2012, while A was on a trip to New York City with two of her close friends, the girls decided to play a game of ‘confessions.' A knew she could trust her girlfriends and told them that her uncle, the defendant, had sexually assaulted her. They all were upset, and A made her friends promise not to disclose the incident to anyone. Approximately one week later, however, one of the girls reported the incident to her guidance counselor at school, and A was asked to speak with her guidance counselor and a social worker. After she confirmed that she had been sexually assaulted by the ...


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