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State v. Daniel W.

Court of Appeals of Connecticut

March 6, 2018

STATE OF CONNECTICUT
v.
DANIEL W.[*]

          Argued November 16, 2017

         Procedural History

         Substitute 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. Affirmed.

          Alice Osedach, senior assistant public defender, for the appellant (defendant).

          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.

          OPINION

          PRESCOTT, J.

         The 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.[1] We disagree and, accordingly, affirm the judgment of the trial court.

         The 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 the class.

         When J 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.

         A often 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.[2] A slept in a bed in M's room when she visited.

         On one 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.

         Over 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.

         During 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.''

         On 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.

         Another 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.

         When A 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 bed.

         The 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 defendant's apartment.

         In 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 locked.

         In 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 not return.

         For 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.

         In 2013, however, the defendant was arrested for sexually abusing another girl.[3] 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.

         On 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 could go.''

         Williams, 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.

         At trial, the court admitted into evidence three letters written by the defendant to J.[4] 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].''

         The 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 necessary.

         I

         The 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.

         The 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.

         The 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.

         On 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 . . . .''

         On 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.

         The 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.

         The 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 prejudicial effect.

         At 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.

         A short 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 up.

         After C 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.[5]

         On 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.

         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. . . . [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).

         Turning 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.

         Under § 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.) Id.

         To 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).

         The defendant does, however, challenge the court's finding that the uncharged misconduct is sufficiently similar to the charged conduct under DeJesus and ยง 4-5 (b) of the Connecticut Code of Evidence. The defendant argues that the uncharged and charged conduct is dissimilar because ...


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