September 14, 2018
information charging the defendant with two counts each of
the crimes of sexual assault in the second degree and risk of
injury to a child, brought to the Superior Court in the
judicial district of Stamford-Norwalk, geographical area
number twenty, and tried to the jury before Holden,
J.; verdict and judgment of guilty, from which the
defendant appealed to the Appellate Court, Keller,
Prescott and Mullins, Js., which
reversed the trial court's judgment, and the state, on
the granting of certification, appealed to this court.
B. Smoker, senior assistant state's attorney, with whom,
on the brief, were Richard J. Colangelo, Jr., state's
attorney, and Nadia C. Prinz, former assistant state's
attorney, for the appellant (state).
A. Beattie, assigned counsel, for the appellee (defendant).
Robinson, C. J., and Palmer, D'Auria, Kahn and Ecker, Js.
a certified criminal appeal from an Appellate Court decision
reversing a judgment of conviction arising out of allegations
by the complainant, B, that her stepfather, the defendant
Fernando V., sexually assaulted her repeatedly over a period
of years while she was in middle school and high school. The
Appellate Court reversed the judgment of conviction on the
ground that the trial court improperly precluded the
defendant from calling the complainant's longtime
boyfriend, P, as a witness regarding his observations of
certain aspects of B's behavior that the state's
expert witness had testified were common symptoms of child
sexual assault. See State v. Fernando V.,
170 Conn.App. 44, 68-69, 153 A.3d 701 (2016). The Appellate
Court concluded that the improper exclusion of P's
testimony was not harmless because the evidence may have
helped ‘‘to show that B failed to exhibit
behaviors often attributed to sexual assault victims,
'' which could have ‘‘dissuaded the jury
from believing B's story generally . . . .'' Id.,
68. We affirm the judgment of the Appellate Court.
following facts are relevant to this appeal. B moved to
Stamford from Mexico when she was nine years old to live with
her mother, brother, and the defendant, her stepfather. The
defendant adopted B in 2004, when she was ten years old, and
he later petitioned for her to obtain permanent residency in
the United States. When B initially came to Stamford, the
family lived with B's grandmother and uncle, but
eventually her grandmother moved back to Mexico. B testified
that she was often alone with the defendant after her
grandmother's departure, and he began to act
inappropriately by touching her breasts. B told her mother
about the defendant's inappropriate behavior. B's
mother confronted the defendant, but he denied any wrongdoing
and said B was confused.
2006, when B was nearing her thirteenth birthday, the family
moved to Norwalk. B testified that the defendant continued to
touch her inappropriately after the move. According to B, she
told her mother about the continuing sexual misconduct, but
the defendant again denied the allegations when confronted. B
testified that the abuse escalated when the defendant forced
her to have sexual intercourse with him in the hallway
bathroom one afternoon. She testified that the defendant
thereafter continued to touch her inappropriately or to force
her to have sexual intercourse on a regular basis, sometimes
as often as once per week. B said that the abuse continued
until approximately 2011, when she was sixteen or seventeen
explained at trial that she did not disclose immediately to
her mother that the defendant was forcing her to have sex
with him because she was scared of what her mother would
think. She eventually disclosed the abuse to her mother in
2011, however, when her mother directly asked B whether the
defendant had forced her to have sex. B and her mother then
called the police, which resulted in the present criminal
defendant was charged with one count of sexual assault in the
second degree in violation of General Statutes § 53a-71
(a) (1), one count of sexual assault in the second degree in
violation of § 53a-71 (a) (4), and two counts of risk of
injury to a child in violation of General Statutes §
53-21 (a) (2). The evidence against the defendant
consisted primarily of the testimony of B and her mother, who
testified as a constancy of accusation witness and also
offered evidence of B's behavior during the relevant time
period. Both B and her mother testified that B achieved good
grades, participated in extracurricular activities,
maintained employment without excessive absences, and
continued to enjoy reading books and pursuing musical
interests. B's mother also testified that she did not
notice any personality changes in B when she was twelve or
thirteen years old, but she did observe that B's
disposition changed in the year before the defendant's
arrest. ‘‘[S]he was more withdrawn, and I saw
that she would stay in her room, ''
‘‘locked up, '' explained B's mother.
the end of its case-in-chief, after B and her mother had
testified, the state called an expert witness, Larry M.
Rosenberg, a licensed psychologist and the clinical director
of the Child Guidance Center of Southern Connecticut.
Rosenberg testified about ‘‘delayed disclosure,
'' which describes a commonly observed phenomenon in
sexual abuse cases that occurs when a victim does not inform
anyone of the sexual abuse for a period of time, sometimes
lengthy, despite the suffering and trauma experienced as a
result of being abused.
origin of the present appeal can be traced to the point in
Rosenberg's testimony when he was asked by the state to
opine about behavioral issues other than delayed disclosure.
More specifically, Rosenberg was asked by the state about
symptoms exhibited by victims of child sexual assault who
have made a disclosure. Rosenberg answered that there were a
variety of symptoms commonly observed in such victims,
including changes in behavior, disassociation, withdrawal,
depression, heightened anxiety, bad dreams, flashbacks, sleep
interruption, and changes in cognitive functioning. Rosenberg
elaborated the point on cross-examination, explaining that
depression can manifest itself in changes in mood,
irritability, and angry outbursts. He stated,
‘‘[t]he list goes on, you know, bad dreams, all
sorts of things.'' Rosenberg's expert testimony
apparently was offered by the state to help the jury
understand the significance of the prior testimony of B and
her mother, in a manner consistent with the state's
objective at trial, which was to establish the
defendant's guilt. The expert testimony about delayed
disclosure would help to explain why B did not immediately
report the most severe abuse to her mother; the testimony
about common symptoms of trauma would assist the jury in
understanding why B had become more withdrawn prior to the
the conclusion of the state's case-in-chief, the defense
attempted to discredit the state's version of events by
presenting the testimony of P, B's longtime boyfriend.
Upon hearing that B and P were in a relationship, the trial
court excused the jury to hear the state's objection that
P's testimony was not relevant to the issue at hand. With
the jury out of the courtroom, the defense made the following
offer of proof relating to the admissibility of P's
testimony about B's behavior:
Counsel]: When you say you're in a relationship, are
you-do you consider yourself boyfriend and girlfriend?
Counsel]: And have you continuously gone out with her, or
been in a relationship with her, as boyfriend and girlfriend,
for four years?
Yes, I have.
Counsel]: Have there been any breaks in the relationship?
No, there have not.
Counsel]: Now, in the time period that you've been going
out, as boyfriend and girlfriend, with [B], have you noticed
any significant behavioral issues with her?
No, not really.
Counsel]: Have you noticed any pronounced eating disorders?
No, I have not.
Counsel]: Have you noticed any suicidal thoughts?
No, I have not.
Counsel]: Have you noticed any severe depression?
No, I have not.
Counsel]: Have you noticed any eating disorders?
No, I have not.
Counsel]: Have you noticed any anger or ...