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State v. Joseph B.

Court of Appeals of Connecticut

January 15, 2019

STATE OF CONNECTICUT
v.
JOSEPH B. [*]

          Argued September 26, 2018

         Procedural History

         Substitute information charging the defendant with two counts of the crime of sexual assault in the first degree, two counts of the crime of sexual assault in the third degree, and six counts of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Kavanewsky, J; verdict and judgment of guilty of one count of sexual assault in the first degree, one count of sexual assault in the third degree, and four counts of risk of injury to a child, from which the defendant appealed. Affirmed.

          James B. Streeto, senior assistant public defender, with whom was Zachary Peck, former certified legal intern, for the appellant (defendant).

          Nancy L. Chupak, senior 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, Moll and Bear, Js.

          OPINION

          ALVORD, J.

         The defendant, Joseph B., appeals from the judgment of conviction, rendered following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2), two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), and two counts of risk of injury to a child in violation of § 53-21 (a) (2).[1] On appeal, the defendant claims that the trial court abused its discretion when it (1) denied his motion for a bill of particulars, (2) admitted evidence that the victim was diagnosed with trichomonas vaginalis, and (3) admitted evidence of text messages that were disclosed on the first day of trial. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. From 2010 to 2013, the defendant lived with his wife in the third floor apartment of a multifamily home on Jefferson Street in Bridgeport. The victim, A, who is the defendant's biological granddaughter, was five years old in 2010 and lived with her mother and her brother in the first floor apartment at that same address. A went upstairs to the defendant's apartment almost every day after she got home from school. On more than one occasion, when the defendant's wife was not home, the defendant touched A's chest, vagina, and lower back while A's clothes were off. A specifically remembered one instance in which she was lying on the defendant's bed and he was going to touch her when they heard her cousin coming up the stairs. In addition, on a different occasion, the defendant asked A if she could bring over her friend, who lived across the street, so that he could do the same to her friend.

         In February, 2013, the defendant moved to Birch Drive in Stratford. A's mother brought A to the defendant's apartment two weekends per month, during which A stayed overnight, in order for the defendant and the defendant's wife to watch A while A's mother worked. While the defendant lived at this address, he repeatedly engaged in penile-vaginal and penile-anal intercourse with A. Some instances of penetration occurred during the summer between A's third and fourth grade school years. During that summer, the defendant also asked A to place her hand on his penis a few times, and although she refused at first, she eventually complied. When A started fourth grade, her behavior changed at school, and she became physically aggressive on two different occasions, which was out of character for A. A also experienced three incidents of bedwetting.[2]

         In November, 2014, when A was nine, she was watching television at the defendant's apartment when she heard the defendant call her name. She went into his room, where he told her to take off her clothes and to lie on the bed. The defendant then engaged in penile-vaginal intercourse with A.[3] The defendant told A that if she told anyone, he would go to jail, and asked, ‘‘do you want your grandfather to go to jail[?]''

         A few weeks later, A wrote a note to her mother disclosing that the defendant had been sexually assaulting her.[4] A's mother immediately contacted the police, as well as A's doctor. On December 2, 2014, A was examined by Sarah Donahue, a nurse practitioner who worked at A's doctor's office. A told Donahue that the defendant sexually assaulted her through penile-vaginal penetration in excess of twenty-five times. During the physical examination, Donahue did not observe any signs of trauma, [5] but she immediately referred A to the Yale Child Sexual Abuse Clinic at Yale-New Haven Hospital.

         At the Yale Child Sexual Abuse Clinic, A was examined by Rebecca Moles, a pediatrician specializing in issues of child abuse. Dr. Moles reported that A had ‘‘normal appearing genital anatomy'' and that the anatomy, including her hymen and the tissue surrounding the outside of the vagina, appeared ‘‘normally formed.''[6]During the examination, Dr. Moles also observed that A had vaginal discharge, which she recognized to be a symptom of trichomonas vaginalis, a sexually transmitted disease. After testing A, Dr. Moles confirmed that A was infected with trichomonas vaginalis.

         In the beginning of December, 2014, after A's mother reported the sexual abuse to the police, the defendant sent several text messages to A's mother. In these text messages, the defendant told A's mother that he had money for her, A, and A's brother. The defendant also sent a text message to A's mother stating that he would buy her a gift if she would accept it.

         On December 10, 2014, Detective William Perillo of the Stratford Police Department interviewed the defendant at the defendant's home. When Detective Perillo began to question the defendant, he asked whether Detective Perillo had any DNA evidence. In addition, he told Detective Perillo that A was not a liar, but that he was not involved in what they were talking about. On January 2, 2015, Detective Perillo arrested the defendant.

         A jury trial followed, at the conclusion of which the defendant was found guilty of one count of sexual assault in the first degree, one count of sexual assault in the third degree, and four counts of risk of injury to a child.[7] The court rendered judgment in accordance with the jury's verdict and imposed a total effective sentence of eighteen years imprisonment and lifetime sex offender registration. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant claims that the trial court abused its discretion when it denied his motion for a bill of particulars. Specifically, the defendant asserts that the substitute information was overly broad and vague, depriving him of notice of the nature of the charges brought against him and his right to present a defense. He argues that the state should have narrowed the time periods in the information using A's forensic interview. He claims the court's denial of his motion for a bill of particulars prejudiced his defense. We disagree that the denial of the motion prejudiced the defendant.

         The following additional facts and procedural history are relevant to our resolution of this claim. On December 5, 2014, A underwent a forensic interview at the Family Justice Center in Bridgeport.[8] During the interview, A described some of the incidents as having occurred (1) when she ‘‘just turned six, '' (2) ‘‘at the end of the [previous] school year, '' (3) ‘‘during [her] summer break between third and fourth grade, '' and (4) ‘‘the second Sunday of November of 2014.''[9]

         The state filed a long form information on February 4, 2015, charging the defendant with sexual assault in the first degree, sexual assault in the third degree, and risk of injury to a child, arising out of conduct that occurred in June, 2012, at Birch Drive in Stratford.

         On April 12, 2016, the state filed a ten count substitute information. The information charged the defendant with sexual assault in the first degree, sexual assault in the third degree, and two different counts of risk of injury to a child for conduct that occurred ‘‘on diverse dates from approximately 2010 to 2012, at or near Jefferson Street'' in Bridgeport. In addition, the substitute information charged the defendant with two different counts of risk of injury to a child for conduct that occurred ‘‘on diverse dates, from approximately 2010 to 2012, at or near Hollister Avenue''[10] in Bridgeport. The defendant was also charged with sexual assault in the first degree, sexual assault in the third degree, and two different counts of risk of injury to a child for conduct occurring ‘‘on diverse dates during 2013 and 2014, at or near . . . Birch Drive'' in Stratford.

         On April 18, 2016, the defendant filed a motion for a bill of particulars, requesting that the court order the state to include the date, time, particular location, and manner of the commission of each alleged count. In his motion, the defendant argued that (1) it was impossible to determine if the offenses charged in the substitute information stemmed from a minimum of three incidents or a maximum of ten incidents, (2) alleging ‘‘diverse dates'' in each count ‘‘incorrectly allows the [s]tate to combine incidents from different dates to make up elements of the crime, '' and (3) ‘‘[e]ach count has a time period of approximately [two] years during which time the [s]tate alleges each crime occurred.'' The defendant argued that the substitute information was insufficient to enable him to prepare a defense. The court scheduled a hearing on this motion for April 19, 2016.

         On April 19, 2016, before the hearing on the motion for a bill of particulars, the state filed the operative substitute information. The first two counts of the ten count substitute information charged the defendant with risk of injury to a child for conduct that occurred ‘‘during 2010, at or near . . . Holly Street'' in Bridgeport. Counts three through six charged the defendant with two different counts of risk of injury to a child, sexual assault in the first degree, and sexual assault in the third degree for conduct that occurred ‘‘on or about 2010 through 2013, at or near . . . Jefferson Street'' in Bridgeport. Counts seven through ten charged the defendant with sexual assault in the first degree, two different counts of risk of injury to a child, and sexual assault in the third degree for conduct occurring ‘‘on or about 2013 through 2014, at or near . . . Birch Drive'' in Stratford.

         At the hearing, the defendant acknowledged that the state's substitute information filed earlier that day resolved some of his issues with the previous substitute information, particularly with the deletion of the ‘‘diverse dates'' language from each count. The defendant maintained, however, that he still did not know the number of alleged incidents, which, he argued, ‘‘puts the defense at a disadvantage because the [s]tate can then basically form their closing argument and form their evidence to the pleadings in various ways.'' In addition, the defendant argued that the 2010 through 2013 time frame, alleged in counts seven through ten, made it difficult to ‘‘fashion any kind of alibi defense or recollection defense in terms of factual inconsistencies that [the defendant] could provide pertaining to those incidents . . . .'' At the conclusion of the hearing, the court determined that the substitute information filed that day was legally sufficient and denied the defendant's motion for a bill of particulars. Specifically, the court concluded that the substitute information narrowed the time periods of the offenses and ‘‘clearly track[ed]'' the defendant's residences where the offenses were alleged to have occurred. In addition, the court noted that the defendant had the benefit of the full disclosure to which he was entitled, including police reports and statements. Lastly, the court concluded that it did not know how A would testify and that her testimony might eliminate some of the defendant's concerns.

         At trial, after the state presented its case, the defendant renewed his motion for a bill of particulars. He again argued that he did not know how many incidents were alleged to have occurred based on the state's charges. In response, the state argued that A ‘‘testified very clearly about multiple incidents of sexual ...


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