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State v. Eddie N.C.

Court of Appeals of Connecticut

November 21, 2017

EDDIE N. C.[*]

          Argued September 7, 2017

          Heather Clark, assigned counsel, for the appellant (defendant).

          Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Catherine Brannelly Austin, supervisory assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Prescott and Mihalakos, Js.


          PRESCOTT, J.

         The defendant, Eddie N. C., appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2); three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2); and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The defendant claims that the trial court improperly admitted (1) prior misconduct testimony, (2) statements made by the victim, A, to her mother, treating physicians, and a social worker under the medical diagnosis and treatment exception to the hearsay rule, and (3) opinion evidence regarding the ultimate issue of whether A had been sexually assaulted, which the defendant claims constitutes plain error. We disagree and, accordingly, affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. A was five or six years old when the defendant began sexually assaulting her. The defendant is the first cousin of A's mother, J. In 2013, J worked as a dialysis technician three or more days a week. Her shift began at 4:30 a.m. and ended at 8 p.m. Due to the lack of available day care, J approached the defendant and his wife, Ashley C., and asked whether they would be able to babysit A on the days J worked. The defendant and Ashley C. agreed, and began babysitting A around September, 2013.

         The dialysis center where J worked was approximately forty-five minutes away from her home, so J would drop A off at the defendant's house at approximately 3 a.m. A would then sleep or watch television on the couch in the defendant's living room until it was time for school. A returned to the defendant's house after school and remained there until J was able to pick her up after work-usually between 8 and 10 p.m.

         On April 9, 2014, the defendant and Ashley C. were babysitting A when A disclosed to Ashley C. that the defendant did ‘‘nasty stuff'' to her in the kitchen. Ashley C. called J and relayed that A had told her that the defendant was ‘‘doing things'' to her and that A ‘‘wanted it to stop.'' Ashley C. was too upset to repeat A's exact words and told J that she should leave work.

         On her way to the defendant's house, J called the police and asked them to meet her because A was alone with the defendant and Ashley C. and J ‘‘didn't feel safe.'' J and the responding police officer, James McMahon, arrived at the defendant's home at approximately the same time. When J entered the defendant's home, A began to cry. The defendant, who was sitting in the kitchen, said to J, ‘‘[J], you know me. You know I wouldn't do this.''

         McMahon then spoke with the defendant and asked him whether he had ever been alone with A. The defendant initially responded that he had not, but later in the conversation admitted that there were times he was alone with her in the morning when Ashley C. was inthe shower. McMahon also asked the defendant whether he had had physical contact with A, to which the defendant responded that he occasionally would make ‘‘farting noises on her belly'' when the two were playing around.

         After a short period, J and A left the defendant's house and drove to Waterbury Hospital. In the car on the way to the hospital, J asked A to tell her the truth about what happened. A responded, ‘‘Mom, he was licking my private parts.''

         J and A arrived at Waterbury Hospital, and A was seen by Dr. Lauren Py in the emergency department. Dr. Py conducted a general examination of A. During the examination, A told Dr. Py that the defendant had abused her earlier that day, as well as on previous occasions. Specifically, A told Dr. Py that the defendant would sometimes take her pants down, touch her, and ‘‘lick her in her private parts.'' A also told Dr. Py that she had pain in her genital region. After Dr. Py's examination, she recommended to J that A be transferred to either Yale-New Haven Hospital or the children's hospital in Hartford, both of which specialize in treating cases of child sexual abuse.

         A was then seen at Yale-New Haven Hospital by Dr. Susan Walsh in the pediatric emergency department. A reported to Dr. Walsh that the defendant had touched her breasts, mouth, and vagina, as well as penetrated her vaginally with his penis. A also reported that she had pain in her genital region and vaginal discharge.

         In addition to conducting an interview, Dr. Walsh performed an external physical examination of A. During the evaluation, Dr. Walsh observed that A's vagina was extremely tender to the touch and that A was tearful. Dr. Walsh further observed that there was discharge on A's labia, that the flap of skin over A's clitoris was especially tender and red, and that A had sustained an abrasion on the lips of her vagina. Dr. Walsh also took swabs from A's vagina and anus using a sexual assault kit, and took an additional sample from A of what Dr. Walsh believed was bodily fluid.[1]

         After the examination, Dr. Walsh referred A to the Yale Child Sexual Abuse Clinic. Monica Vidro, alicensed clinical social worker at the Yale Child Sexual Abuse Clinic, called J to set up a follow-up examination of A. On April 16, 2014, Vidro conducted a forensic interview of A, which was observed by Dr. Lisa Pavlovic of the Yale Child Sexual Abuse Clinic; Daniel Dougherty, a detective in the sex crimes unit of the Waterbury Police Department; and a representative from the Department of Children and Families.

         During the forensic interview, A disclosed to Vidro that the defendant had licked her genitals, as well as put his penis in her vagina and anus. A identified the vagina and buttocks of a prepubescent female and the penis of a male on respective anatomically correct drawings. A also told Vidro that the defendant had masturbated in front of her to the point of ejaculation, and demonstrated how the defendant had moved his hands up and down his penis. Finally, A disclosed to Vidro that the defendant had shown her pornography and described certain characteristics of the individuals featured in the film.

         After attending the forensic examination of A conducted by Vidro, Dougherty contacted the defendant and asked whether he would be willing to meet. The defendant indicated that he would. The meeting took place at the Waterbury Police Department, during which the defendant voluntarily waived his rights and agreed to answer Dougherty's questions. The defendant told Dougherty that on the afternoon of April 9, 2014, Ashley C. told him that A had said that the defendant was doing ‘‘nasty things'' to her. The defendant told Ashley C. that he had ‘‘fart[ed]'' on A. The defendant also voluntarily submitted a cheek swab for DNA and allowed Dougherty to search his phone for pornography.[2]

         At trial, the state presented testimony from A, J, McMahon, Dr. Py, Dr. Walsh, Vidro, Dougherty, A's kindergarten teacher, Sarah Feola, [3] Dr. Pavlovic, and A's maternal aunt, S. The state also introduced into evidence A's medical records from Waterbury Hospital and Yale-New Haven Hospital, as well as a portion of A's forensic interview.

         At the time of trial, A was seven years old. A testified that the defendant had penetrated her anally with his penis, as well as performed oral sex on her. A supplemented her testimony by circling the parts of her body that the defendant touched with his penis on an anatomically correct drawing of a young female. A also demonstrated the acts that the defendant had subjected her to using anatomically correct dolls.

         A further testified that after the defendant engaged in anal intercourse with her, he masturbated until a ‘‘light green . . . light yellow'' substance came out of his penis, and that he wiped his ejaculate on a piece of toilet paper and showed it to A before throwing it away. Finally, A testified that the defendant had showed her pornographic movies and described to the jury certain characteristics of the actors. Specifically, A described the actors' gender, race, clothing, the size of the bed featured, and the acts performed.

         When A was asked whether any of the defendant's body parts besides his tongue had touched her vagina, she responded that they had not. The state then entered into evidence segments of A's forensic interview, conducted by Vidro, in which A disclosed that the defendant had penetrated her vagina with his penis.

         The defendant testified in his own defense, [4] as well as presented testimony from Ashley C., [5] neighbor Fransauch Marleen Castillo, and family friend Christy C.[6]The defendant also submitted as evidence a stipulation that stated that he had not contributed to any DNA found in a biological sample taken from A shortly after she reported the abuse on April 9, 2014.

         Subsequently, the jury returned a verdict of guilty on all seven counts: three counts of sexual assault in the first degree in violation of § 53a-70 (a) (2) (count one: cunnilingus; count three: penile-vaginal penetration; count five: penile-anal penetration); three counts of risk of injury to a child in violation of § 53-21 (a) (2) (count two: mouth-genital area; count four: penis-genital area; count six: penis-buttocks area); and one count of risk of injury to a child in violation of § 53-21 (a) (1) (count seven: pornography). The court sentenced the defendant to a total effective term of twenty-five years of incarceration and twenty-five years of special parole. This appeal followed. Additional facts and procedural history will be set forth as necessary.


         The defendant first claims on appeal that the trial court improperly admitted into evidence prior misconduct testimony through the defendant's cousin, S, to prove the defendant's propensity to engage in sexual misconduct. Specifically, the defendant argues that the misconduct complained of by S was (1) remote in time compared to the offenses charged; (2) dissimilar to the offenses charged; and (3) not committed on someone similar to A. The defendant further argues that the evidence should have been excluded because its probative value does not outweigh its prejudicial effect. We disagree.

         The following additional facts and procedural history are relevant to this claim. On June 1, 2015, the state filed a motion stating its intent to offer uncharged misconduct evidence at trial, through S, the then twenty-three year old first cousin of the defendant, to prove that the defendant had a propensity to engage in the type of sexual misconduct complained of by A. The state proffered that the defendant had sexually abused S when she was a child, beginning when she was four or five and continuing until the age of ten.[7] The state further proffered that the majority of the abuse occurred at the defendant's family home. For the first two or three years, the defendant inappropriately touched S's chest and vagina over her clothes. When S was seven, however, the abuse progressed to the defendant performing oral sex on her, anally penetrating her with his penis, and vaginally penetrating her with his fingers. The state also proffered that the defendant had shown S pornographic movies.

         The state argued that the prior misconduct evidence was relevant because (1) S and A were the same age when the alleged abuse began; (2) S and A are both cousins of the defendant; (3) the instances of the alleged abuse occurred in the defendant's home; and (4) the charged and uncharged conduct was nearly identical. The state further argued that, considering these similarities, the twelve years between the charged and uncharged acts did not render the prior misconduct too remote in time.

         On June8, 2015, the defendant filed a motion in limine seeking to preclude the prior misconduct testimony of S. In support of his motion, the defendant argued that S and A were not similarly situated because the defendant was a minor himself when he allegedly abused S. The defendant further argued that the conduct complained of by S was too remote in time relative to the charged conduct because it occurred more than one decade beforehand. Finally, the defendant argued that the probative value of the evidence was minimal and outweighed by its prejudicial effect.

         On June 16 and 24, 2015, the court heard oral argument on the defendant's motion in limine. The court subsequently denied the defendant's motion to preclude prior misconduct testimony offered by the state through S. The court concluded that S and A were sufficiently similar persons, noting that both victims were similar in age when the misconduct began and were cousins of the defendant. The court further concluded that the alleged conduct was sufficiently similar, and that the gap in time between S's allegations and A's allegations was not too remote in light of relevant case law discussing remoteness. Finally, the court determined that the probative value of the evidence outweighed its prejudicial effect. Accordingly, S was allowed to testify at trial about the defendant's prior misconduct.[8]

         We begin our analysis of the defendant's claim by setting forth the applicable standard of review. ‘‘The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court's ruling. . . . [T]he trial court's decision will be reversed only where abuse of discretion is manifest or where injustice appears to have been done.'' ...

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