November 16, 2017
information charging the defendant with seven counts of the
crime of risk of injury to a child, five counts of the crime
of sexual assault in the first degree, and with one count
each of the crimes of sexual assault in the fourth degree,
conspiracy to commit risk of injury to a child, attempt to
commit sexual assault in the first degree and attempt to
commit risk of injury to a child, brought to the Superior
Court in the judicial district of Tolland, where the court,
Graham, J., granted the state's motion to introduce
certain evidence; thereafter, the matter was tried to the
jury; subsequently, the court denied the defendant's
motion to preclude certain evidence; verdict of guilty;
thereafter, the court denied the defendant's motion for a
new trial and rendered judgment in accordance with the
verdict, from which the defendant appealed to this court.
Osedach, senior assistant public defender, for the appellant
Melissa Patterson, assistant state's attorney, with whom,
on the brief, were Matthew C. Gedansky, state's attorney,
and Elizabeth C. Leaming, senior assistant state's
attorney, for the appellee (state).
Prescott, Elgo and Norcott, Js.
defendant, Daniel W., appeals from the judgment of
conviction, rendered after a jury trial, of six counts of
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (2); five counts of sexual assault in the
first degree in violation of General Statutes § 53a-70
(a) (2); one count of attempt to commit sexual assault in the
first degree in violation of General Statutes §§
53a-70 (a) (2) and 53a-49; one count of sexual assault in the
fourth degree in violation of General Statutes § 53a-73a
(a) (1) (A); one count of risk of injury to a child in
violation of General Statutes § 53-21 (a) (1); one count
of conspiracy to commit risk of injury to a child in
violation of General Statutes §§ 53-21 (a) (2) and
53a-48; and one count of attempt to commit risk of injury to
a child in violation of General Statutes §§ 53-21
(a) (2) and 53a-49. On appeal, the defendant claims that (1)
the trial court improperly admitted evidence of his prior
misconduct; (2) the trial court improperly allowed a
constancy of accusation witness to testify as an expert
regarding delayed disclosure; and (3) the prosecutor
committed improprieties that deprived the defendant of his
right to a fair trial. We disagree and, accordingly, affirm the
judgment of the trial court.
jury reasonably could have found the following facts. A was
seven years old when the defendant began sexually abusing her
in 2004. A met the defendant one year earlier, when her
brother was enrolled in one of his martial arts classes.
A's older sister, J, brought their brother to and from
became eighteen years old, she and the defendant, who was
thirty-six years old at the time, began dating. Soon after, J
moved out of her parents' house and began living with the
defendant in an apartment in Rockville. She and the defendant
married and eventually had three children together.
stayed at J's and the defendant's apartment on
weekends. She enjoyed spending time with her sister, nieces
and nephews, and the defendant's daughter from a previous
marriage, M, who is close in age to A. A slept in a bed
in M's room when she visited.
such weekend when A was seven, the defendant came into
M's room at night, where M and A were sleeping, put his
hand underneath A's pajama shirt, and began touching her
chest. The defendant then put his hands down A's pajama
pants and touched her vagina. A pretended to be asleep during
this encounter. Thereafter, the defendant abused A in a
similar manner on multiple occasions.
time, the defendant's abuse of A increased in severity.
Specifically, the defendant would enter M's room at
night, go over to A's bed, rub A's vagina, and
penetrate it with his finger. A recalled that the defendant
abused her in this way ‘‘[t]oo many times to
count.'' On other occasions, the defendant put his
penis in A's mouth, at times ejaculating. Furthermore, A
believes that the defendant often photographed her naked
body, as he sometimes came into her room and pulled her
clothes off, after which she would see flashes of light.
each instance of abuse, A kept her eyes closed and pretended
to be asleep because she was afraid that the defendant, who
had a bad temper and held a fourth-degree black belt, might
hurt her. A was still able to identify the defendant as her
abuser, however, because (1) his hands felt like a man's
hands, and the defendant was the only adult male in the
apartment, and (2) the defendant, who drank often, smelled of
alcohol. Despite the abuse, A continued to visit J's and
the defendant's apartment, as she loved spending time
with her relatives and was determined not to let the
defendant ‘‘ruin [her] fun with them.''
another occasion when A was eight years old, the defendant
came into M's room and picked A up from her bed. M woke
up and asked her father what he was doing. The defendant told
her that he was bringing A to the bathroom. The defendant
then carried A to his and J's bedroom, laid her down on
their bed, and performed oral sex on her. Afterward, he
carried A back to her bed.
time, the defendant, J and A were in the living room watching
a movie when J began performing fellatio on the defendant.
The defendant told J to ask A if she wanted to join. J then
twice asked A if she wanted to participate. A declined and
stared at the television. When the movie finished, A walked
into M's room. No further abuse occurred on that night.
was ten years old, the defendant again picked A up from her
bed and carried her to his bedroom. A awoke and heard J ask
the defendant, ‘‘what if she wakes up?''
to which the defendant replied, ‘‘don't
worry, she shouldn't.'' The defendant then
encouraged J to fondle A, and J put her hand up A's shirt
and began touching her chest. Meanwhile, the defendant pulled
down A's pants and began performing oral sex on her.
Eventually, the defendant stopped and carried A back to her
last instance of abuse occurred when A was twelve years old.
On that night, A fell asleep on the couch in the living room
while watching television. At some point, A heard the
defendant come home from work. Thereafter, A heard a
‘‘rustling'' sound, which she later
learned was a condom being opened. The defendant then climbed
on top of A and attempted to penetrate her vagina with his
penis. When he was unable to fully do so, he stopped and
walked out of the room. Sometime later J came into the living
room. A cried out to her, and revealed to her sister that the
defendant had tried to molest her. J told A that she would
yell at the defendant and that it would not happen again. J
then walked out of the room and came back with the defendant,
who was ‘‘freaking out, saying how he [was] going
to go to jail . . . [and] not going to see his kids
anymore.'' J told him not to worry and that
‘‘[A was] not going to do that.'' After
this incident A rarely, if ever, returned to J's and the
2012, the defendant lost his job and he, J, and their
children moved into J's parents' house, where A also
lived. While he was living in the family home, A often voiced
her dislike of the defendant and kept her bedroom door
June, 2013, the defendant was arrested on charges stemming
from a domestic violence incident during which he struck J in
the face in front of their son. J's and A's father
subsequently ejected the defendant from the house, and he did
years, A did not disclose the abuse because she feared that
the news would break up her sister's family. Furthermore,
A felt betrayed by J's response to her revelation that
the defendant had tried to molest her.
2013, however, the defendant was arrested for sexually
abusing another girl. When this happened, A's father asked
her whether the defendant had also sexually abused her. A
responded that the defendant had tried to put his hands down
her pants, but refused to say anything more. When A's
father suggested reporting the abuse to the police, she said
that she did not want to because her classmates would find
out. A's father, wanting to protect A, did not tell his
wife or anyone else about the conversation.
March 6, 2014, when A was seventeen years old, she attended a
youth group meeting at her church. Suzy Williams, an adult
mentor for the group and a social worker, often brought A to
the meetings. After the meeting, A told Williams that it was
the best day of A's life because the man who had sexually
abused her for years had been arrested, and she would never
have to see him again. A also told Williams that the abuser
was her brother-in-law, who was married to her sister, J.
Williams asked whether the defendant had had sex with A, and
she responded that he had ‘‘went as far as he
who was a mandated reporter of suspected child abuse, alerted
the Department of Children and Families (department) and the
police as to what A had told her. The defendant subsequently
was arrested on charges arising from his abuse of A and tried
before a jury.
trial, the court admitted into evidence three letters written
by the defendant to J. In the letters, the defendant, angry that
J was not writing him back, threatened to reveal her role in
A's abuse. Specifically, the defendant stated that J
‘‘not only [knew] what was going on but . . .
helped and supported in it, '' and that, on many
nights, J made arrangements for the older children so that
they were not in the house, presumably to facilitate the
defendant's abuse of A. The defendant also wrote that the
police wanted him ‘‘to confirm that [J] gave
[him] a BJ in front of [A].''
defendant was subsequently found guilty by the jury on all
charges contained in the state's substitute information
and sentenced to a total effective term of twenty-nine years
incarceration followed by sixteen years of special parole.
This appeal followed. Additional facts will be set forth as
defendant first claims that the trial court improperly
admitted into evidence uncharged misconduct of the defendant
through C, who testified that the defendant sexually abused
her. Specifically, the defendant argues that the uncharged
misconduct was not sufficiently similar to the charged
conduct, and that the prejudicial effect of its admission
outweighed its probative value. We disagree.
following additional facts and procedural history are
relevant to the resolution of this claim. On July 30, 2015,
the state filed a motion to join for trial three separate
cases alleging sexual misconduct against the defendant. On
August 26, 2015, the defendant filed an objection to the
state's motion for joinder. That same day, the court held
a hearing on the state's motion. At the hearing, the
state amended its motion, requesting to join only two of the
three cases-those involving A and C. The state argued that
joining those two cases was appropriate because the evidence
in each case would likely be cross admissible pursuant to the
standard for introduction of uncharged sexual misconduct set
forth in State v. DeJesus, 288 Conn. 418,
953 A.2d 45 (2008). The defendant responded that doing so
would substantially prejudice him because the severity of
misconduct alleged in the case involving A was far greater
than that alleged in the case involving C.
court denied the state's motion, finding that, although
the respective incidents of alleged abuse as to A and C were
not too remote in time, and C and A were similarly situated,
the alleged abuse of A and C was not sufficiently similar to
warrant trying the cases together. Specifically, the court
found that the defendant's abuse of A was far greater in
duration, frequency, and invasiveness. Moreover, the court
found that introducing evidence of the defendant's
alleged abuse of A in the trial concerning his alleged abuse
of C would be more prejudicial than probative. The court made
clear, however, that its ruling did not preclude the
admissibility of the defendant's alleged abuse of C in
the trial concerning his abuse of A.
September 28, 2015, the defendant filed a motion in limine in
the present case, in which he sought to preclude the
admission of uncharged misconduct evidence at trial, arguing
that any such evidence was not relevant and, even if deemed
relevant, its prejudicial effect outweighed its probative
value. The next day, the state filed a notice of its intent
to introduce uncharged misconduct evidence at trial
‘‘to establish the defendant's propensity to
sexually assault young girls . . . .''
October 5, 2015, the court heard argument on the
defendant's motion in limine. At that time, the
prosecutor made an offer of proof regarding the anticipated
testimony of C. Specifically, the state proffered that (1) C,
like A, was a minor when she was allegedly abused by the
defendant; (2) C was friends with the defendant's
daughter, M, and was ‘‘like a little
sister'' to J; (3) on the day of the alleged abuse, C
spent the night at the defendant's house and fell asleep
on the couch in the living room watching a movie with the
defendant and J; (4) on three separate occasions throughout
the night and into the morning the defendant attempted to
touch C's vagina while she was sleeping, both over and
under her clothes; and (5) C believed that the defendant also
may have taken photographs of her.
state argued that the uncharged misconduct evidence was
relevant because it was not too remote in time to the last
alleged incident of abuse of A, which had occurred about one
year prior. The state also argued that the charged and
uncharged misconduct were sufficiently similar because C,
like A, alleged that the defendant had touched her vagina
over and under her clothes while she was sleeping.
Furthermore, the state argued that the escalation of the
abuse of A did not preclude admissibility of C's
testimony because the defendant had access to C for only a
short period of time and, therefore, the defendant did not
have an opportunity to escalate his abuse of her. Finally,
the state argued that the prejudicial effect of the uncharged
misconduct evidence did not outweigh its probative value
because it supported the defendant's propensity to
sexually assault young girls, and the defendant's alleged
abuse of C was far less severe than that of A. In response,
the defendant argued that the uncharged misconduct evidence
was ‘‘detrimental'' to him, and requested
that, because the state had not proffered the live testimony
of C, the court defer ruling on its motion until the defense
could voir dire her.
court subsequently granted the state's motion to
introduce uncharged misconduct evidence through C, provided
that C testified consistently with the state's proffer at
trial. In doing so, the court concluded that the state's
proffer satisfied the test set forth in DeJesus and
that the probative value of the evidence outweighed its
trial, C testified consistently with the state's proffer.
Specifically, she testified that she was a childhood friend
of the defendant's daughter, M. During the fall of 2011,
J reached out to C, who was thirteen years old at the time,
to arrange a sleepover with M at the defendant's
apartment. When C arrived, however, M was not there. Instead,
C spent the day with J and her two sons. That evening, J and
C watched movies in the living room. The defendant arrived
home at approximately 11 p.m. C fell asleep on the couch
early the next morning, at about 3 a.m.
while later, C awoke to the defendant trying to touch her
vagina over her sweatpants. C pushed him away, told him to
move, and went back to sleep. Not long after that, C awoke
again to the defendant touching her vagina-this time under
her clothes. She pushed him away and asked him what he was
doing. C then awoke a third time to the defendant grabbing
her vagina over her sweatpants. This time, C asked the
defendant, ‘‘[w]hat the hell was wrong with
[him].'' The defendant grabbed C's arm and told
her not to say anything. C then told J, who was also in the
living room during the three incidents, what had happened. J
responded that the defendant must have thought C was her. C
told J she was lying and called her guardian to come pick her
testified, the court gave the jury a limiting instruction
regarding the proper use of uncharged misconduct evidence.
Specifically, the court instructed the jury that evidence of
the defendant's misconduct toward C was not sufficient to
prove that the defendant was guilty of the crimes charged.
The court further instructed the jury that the state still
had the burden of proving every element of the crimes charged
beyond a reasonable doubt. In its final charge, the court
instructed the jury a second time about the proper use of
uncharged misconduct evidence.
October 26, 2015, after the defendant was found guilty, he
filed a motion for a new trial wherein he claimed, inter
alia, that the court improperly admitted the uncharged
misconduct evidence. On January 8, 2016, after argument, the
court denied the defendant's motion.
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. .
. . [Every] 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.'' (Internal quotation marks omitted.)
State v. Heck, 128 Conn.App. 633, 638, 18
A.3d 673, cert. denied, 301 Conn. 935, 23 A.3d 728 (2011).
to the applicable law, as a general rule, prior misconduct
evidence is inadmissible to prove the defendant's bad
character or criminal tendencies. See Conn. Code Evid. §
4-5 (a) (‘‘[e]vidence of other crimes, wrongs or
acts of a person is inadmissible to prove the bad character,
propensity, or criminal tendencies of that person except as
provided in subsection [b]''). In State v.
DeJesus, supra, 288 Conn. 470, however, our Supreme
Court recognized ‘‘a limited exception
to the prohibition on the admission of uncharged misconduct
evidence in sex crime cases to prove that the
defendant had a propensity to engage in aberrant and
compulsive criminal sexual behavior.'' (Emphasis in
original.) This exception to the admission of propensity
evidence was subsequently codified in § 4-5 (b) of the
Connecticut Code of Evidence.
§ 4-5 (b) of the Connecticut Code of Evidence and
DeJesus, evidence of uncharged sexual misconduct is
admissible ‘‘if it is relevant to prove that the
defendant had a propensity or a tendency to engage in the
type of aberrant and compulsive criminal sexual behavior with
which he or she is charged.'' State v.
DeJesus, supra, 288 Conn. 473.
‘‘[E]vidence of uncharged misconduct is relevant
to prove that the defendant had a propensity or a tendency to
engage in the crime charged only if it is: (1) . . . not too
remote in time; (2) . . . similar to the offense charged; and
(3) . . . committed upon persons similar to the [complaining]
witness.'' (Internal quotation marks omitted.)
Id. In addition, the court must also find that the
probative value of the evidence ‘‘outweighs the
prejudicial effect that invariably flows from its
admission.'' (Internal quotation marks omitted.)
begin, the defendant concedes, and we agree, that the charged
and uncharged misconduct was not too remote in time. The
abuse of A occurred between 2004 and 2010, and the abuse of C
occurred in 2011. Because the defendant's abuse of C
occurred only one year after the last instance of abuse with
respect to A, the uncharged conduct is not too remote in time
relative to the charged conduct. See State v.
Acosta, 326 Conn. 405, 415, 164 A.3d 672 (2017)
(holding that twelve year gap between charged and uncharged
conduct was not too remote); State v.
Jacobson, 283 Conn. 618, 632-33, 930 A.2d 628 (2007)
(ten year gap was not too remote); State v.
Romero, 269 Conn. 481, 498, 849 A.2d 760 (2004)
(nine year gap was not too remote).
defendant does, however, challenge the court's finding
that the uncharged misconduct is sufficiently similar to the
charged conduct under DeJesus and § 4-5 (b) of
the Connecticut Code of Evidence. The defendant argues that
the uncharged and charged conduct is dissimilar because ...