Argued
September 7, 2018
Procedural
History
Substitute
information charging the defendant with four counts of the
crime of risk of injury to a child, three counts of the crime
of sexual assault in the first degree, and two counts of the
crime of sexual assault in the second degree, and with the
crimes of sexual assault in the fourth degree and tampering
with a witness, brought to the Superior Court in the judicial
district of Hartford and tried to the jury before
Bentivegna, J.; verdict and judgment of guilty of
four counts of risk of injury to a child, three counts of
sexual assault in the first degree, and two counts of sexual
assault in the second degree, and of sexual assault in the
fourth degree, from which the defendant appealed.
Affirmed.
Hubert
J. Santos, with whom was Trent A. LaLima, for the appellant
(defendant).
Ronald
G. Weller, senior assistant state's attorney, with whom,
on the brief, were Gail P. Hardy, state's attorney, and
Elizabeth Tanaka, assistant state's attorney, for the
appellee (state).
Alvord, Bright and Bear, Js.
OPINION
BRIGHT, J.
The
defendant, Manuel T., appeals[1] from the judgment of conviction,
rendered after a jury trial, of one count of sexual assault
in the first degree in violation of General Statutes §
53a-70 (a) (2), four counts of risk of injury to a child in
violation of General Statutes § 53-21 (a) (2), two
counts of sexual assault in the first degree in violation of
General Statutes § 53a-70 (a) (1), two counts of sexual
assault in the second degree in violation of General Statutes
§ 53a-71 (a) (1), and one count of sexual assault in the
fourth degree in violation of General Statutes § 53a-73a
(a) (1) (E).[2] On appeal, the defendant claims that the
trial court improperly (1) admitted into evidence a video
recording of the diagnostic interview between the minor
victim and a clinical services coordinator, and (2) excluded
from evidence two screenshots of text messages purportedly
sent by the minor victim to her step cousin. We affirm the
judgment of the trial court.
The
following undisputed facts and procedural history are
relevant to our resolution of this appeal. On March 28, 2014,
the minor victim, age seventeen at the time, reported to her
family and the police that she had been sexually abused by
the defendant, her stepfather. In accordance with police
protocol, the minor victim was referred to the Greater
Hartford Children's Advocacy Center (advocacy center) at
Saint Francis Hospital and Medical Center for a diagnostic
interview. On April 1, 2014, the minor victim participated in
a diagnostic interview conducted by Lisa Murphy-Cipolla, the
clinical services coordinator at the advocacy center.
Although Murphy-Cipolla interviewed the minor victim alone,
their conversation was observed through a ‘‘one
way mirror'' by Detective Claire Hearn and Audrey
Courtney, a pediatric nurse practitioner at the advocacy
center.[3] In conformance with the ordinary practice
of the advocacy center, the interview was video recorded.
During
the interview, the minor victim disclosed, in precise detail,
that the defendant sexually abused her over an approximate
seven year period. The minor victim told Murphy-Cipolla, in
relevant part, that beginning when she was eight or nine
years old, until she was fifteen years old, the defendant, on
numerous occasions, touched her inappropriately underneath
her clothes. The minor victim also disclosed that, when she
turned fifteen years old, the defendant ‘‘would
force [her] to have sex with him.'' She further
indicated that the defendant's actions would cause her to
suffer physical pain, that she does not feel comfortable with
her body, and that she regrets not disclosing the sexual
abuse sooner. The defendant subsequently was arrested and
charged with, inter alia, six counts of sexual assault and
four counts of risk of injury to a child.
On June
6, 2016, the court held a pretrial hearing to determine
whether the video recording of the diagnostic interview would
be admissible at trial. As an offer of proof, the state
presented the testimony of Murphy-Cipolla and played a
partially redacted version[4] of the video recording. Murphy-Cipolla
testified regarding her background and the purposes and
process of conducting diagnostic interviews, as well as the
circumstances of her interview of the minor victim. The state
argued that the video recording was admissible pursuant to
the medical diagnosis and treatment exception to the hearsay
rule, which is codified in § 8-3 (5) of the Connecticut
Code of Evidence.[5] The defendant objected to the admission of
the video recording on the ground that the minor victim's
statements made during the interview constituted inadmissible
hearsay because the minor victim was not seeking medical
diagnosis or treatment.[6]
At the
conclusion of the hearing, the court, in an oral decision,
overruled the defendant's objection and held that the
video recording was admissible pursuant to the medical
diagnosis and treatment exception to the hearsay rule. In
particular, the court concluded that the hearsay exception
applied because the minor victim's reports of
‘‘physical symptoms, ''
‘‘body image mental health issues, '' and
‘‘medical concerns'' were reasonably
pertinent to obtaining medical diagnosis and treatment.
Thereafter,
the defendant's case proceeded to a jury trial, at which
the state presented the testimony of several witnesses,
including Murphy-Cipolla. During the state's direct
examination of Murphy-Cipolla, the state requested that the
video recording be admitted into evidence. Notwithstanding
the defendant's renewed objection, the court admitted
into evidence the video recording as a full exhibit, and the
state proceeded to play the video recording for the jury.
In the
course of the defendant's rebuttal evidence at trial, the
defendant sought to introduce two cell phone screenshots
depicting text messages purportedly sent by the minor victim
to her step cousin, R, who is the defendant's
niece.[7] Accordingly, the court held a hearing
outside the presence of the jury to determine the
admissibility of these screenshots. As an offer of proof, the
defendant conducted a direct examination of R and produced
both screenshots. R testified that, inter alia, both
screenshots depict text message responses that she received
from the minor victim in February or March, 2014. Both
screenshots appear to display the minor victim's first
name as the sender; neither screens-hot, however, contains an
indication as to the date or time that the messages were
received. After conducting a cross-examination of R, the
state objected to the admission of both screenshots arguing
that they had not been authenticated properly because they
were incomplete and devoid of necessary distinctive
characteristics. The defendant countered that the screenshots
were admissible because R sufficiently identified the
messages as being authored by the minor victim.
At the
conclusion of the hearing, the court issued an oral decision
sustaining the state's objection and deciding that both
screenshots had not been authenticated sufficiently pursuant
to § 9-1 (a) of the Connecticut Code of
Evidence.[8] Specifically, the court determined that
the defendant failed to make a prima facie case that the
minor victim authored the text messages exhibited by the
screenshots because, among other things, the messages were
incomplete, lacking temporal indicators, and devoid of
distinctive characteristics. Accordingly, the court excluded
from evidence both screenshots.
The
jury subsequently found the defendant guilty of six counts of
sexual assault and four counts of risk of injury to a child.
The court rendered judgment in accordance with the jury's
verdict and imposed a total effective sentence of forty years
incarceration, execution suspended after thirty years, with
thirty-five years probation and lifetime sex offender
registration. This appeal followed. Additional facts will be
set forth as necessary.
Before
turning to the merits of the defendant's claims, we
briefly set forth the applicable standard of review.
‘‘It is well settled that [w]e review the trial
court's decision to admit [or exclude] evidence, if
premised on a correct view of the law . . . for an abuse of
discretion. . . . Under the abuse of discretion standard,
[w]e [must] make every reasonable presumption in favor of
upholding the trial court's ruling, and only upset it for
a manifest abuse of discretion. . . . [Thus, our] review of
such rulings is limited to the questions of whether the trial
court correctly applied the law and reasonably could have
reached the conclusion that it did.'' (Citation
omitted; internal quotation marks omitted.) Filippelli
v. Saint Mary's Hospital, 319
Conn. 113, 119, 124 A.3d 501 (2015).[9]
I
The
defendant claims that the court improperly admitted into
evidence a video recording of the diagnostic interview
between the minor victim and Murphy-Cipolla. More
specifically, the defendant argues that the court abused its
discretion in determining that the video recording met the
requirements of the medical diagnosis and treatment exception
to the hearsay rule because ‘‘[t]he circumstances
of this case make clear that criminal investigation and
...