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State v. Bobe

Court of Appeals of Connecticut

February 27, 2018


          Argued November 28, 2017

          Lisa J. Steele, assigned counsel, for the appellant (defendant).

          Sarah Hanna, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Ann P. Lawlor, senior assistant state's attorney, for the appellee (state).

          Alvord, Bright and Sullivan, Js.


          SULLIVAN, J.

         The defendant, Anibal Bobe, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and of injury to a child in violation of General Statutes § 53-21 (a) (1), and risk of injury to a child in violation of § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly admitted into evidence hearsay and double hearsay through the testimony of the victim.[1] We conclude that any claimed error was harmless and, accordingly, affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In July, 2012, the male victim, then fourteen years old, and his family were homeless. The victim's mother was acquainted with the defendant, who allowed them to live in his one bedroom apartment with him. The defendant helped his landlord with building maintenance and had access to the building's attic and vacant apartments in the building that required work. The defendant asked the victim's mother if the victim could help him paint a neighboring vacant apartment. That apartment had painting mats down on the floor. The defendant provided the victim with a brown bottle of liquor that the victim described as ‘‘[tasting] horrible.''[2] The defendant and the victim took off each other's clothes. The victim put his mouth on the defendant's penis and performed oral sex until the defendant ejaculated on the floor, and the defendant did the same to the victim.

         On another occasion, the defendant invited the victim to come up to the attic, where there was a bed, to have ‘‘sweaty sex.'' The victim went into the attic with the defendant, and they took off each other's clothes and performed oral sex on each other. The defendant ‘‘put the tip of his [penis] in [the victim's anus], but it didn't go all the way in because [the victim] . . . clenched up . . . and . . . [pushed] away because it . . . [hurt].'' Another time in the vacant apartment, the defendant asked the victim to ‘‘turn over so that he [could] stick it in.'' The victim did not want to engage in anal sex, but the defendant told him that ‘‘[it was] ok'' and fully penetrated the victim's anus. The victim described it as a ‘‘painful, '' ‘‘awful feeling.'' The victim stated that when the defendant finished it felt like the defendant had ‘‘[ejaculated] inside [of him].'' The defendant never used a condom during any of the assaults. Afterward, the victim went to the bathroom and saw blood in his underwear. The victim told the defendant, but the defendant ‘‘tried to deny it and say that . . . it wasn't blood.'' The victim was scared, and he threw away the bloody underwear.

         The victim engaged in oral sex with the defendant approximately two other times, and the defendant attempted to engage in anal sex with the victim on one other occasion. The defendant told the victim multiple times ‘‘not to tell anyone because [they] would both get in trouble.'' Initially, the victim did not tell anyone about the assaults because he ‘‘was scared and . . . [did not] know what was going to happen'' or ‘‘what anybody would think.'' The victim was ‘‘very concerned'' about whether his family would be able to stay in the defendant's apartment. Later that month, the landlord discovered that the victim's family was living in the defendant's apartment and asked them to leave. In the spring of 2013, the victim told his stepbrother the defendant's name and ‘‘exactly what happened from the beginning . . . to the end.'' The victim then told his father and stepmother, who contacted the Bridgeport Police Department.

         The state subsequently charged the defendant with sexual assault in the second degree, and two counts of risk of injury to a child. A three day jury trial commenced on July 6, 2016, at which the victim testified. The victim's testimony was corroborated by his stepbrother's constancy of accusation testimony. During the state's direct examination of the victim, the following exchange occurred:

         ‘‘[The Prosecutor]: [W]ith respect to your birthday and the time you moved out of [the defendant's] apartment, can you tell us about that?

‘‘[The Victim]: He kicked us out a few days before my birthday. And my mom told me the reason he kicked us out-
‘‘[Defense Counsel]: Objection. It's hearsay.
‘‘The Court: Sustained as to hearsay. You can tell us-I'll permit-well, actually I'm going to overrule the objection because it's the defendant's statement. So it's a statement against penal interest. So under that. . . . [Y]ou ...

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