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State v. Fernando V.

Supreme Court of Connecticut

March 26, 2019

STATE OF CONNECTICUT
v.
FERNANDO V. [*]

          Argued September 14, 2018

         Procedural History

         Substitute 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. Affirmed.

          Denise 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).

          Mary A. Beattie, assigned counsel, for the appellee (defendant).

          Robinson, C. J., and Palmer, D'Auria, Kahn and Ecker, Js. **

          OPINION

          ECKER, J.

         This is 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.

         I

         The 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.

         In 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 years old.

         B 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 case.

         The 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).[1] 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.

         Toward 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.

         The 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.''[2] 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 defendant's arrest.

         After 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:

         ‘‘[Defense Counsel]: When you say you're in a relationship, are you-do you consider yourself boyfriend and girlfriend?

         ‘‘[P]: Yes.

         ‘‘[Defense Counsel]: And have you continuously gone out with her, or been in a relationship with her, as boyfriend and girlfriend, for four years?

         ‘‘[P]: Yes, I have.

         ‘‘[Defense Counsel]: Have there been any breaks in the relationship?

         ‘‘[P]: No, there have not.

         ‘‘[Defense 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?

         ‘‘[P]: No, not really.

         ‘‘[Defense Counsel]: Have you noticed any pronounced eating disorders?

         ‘‘[P]: No, I have not.

         ‘‘[Defense Counsel]: Have you noticed any suicidal thoughts?

         ‘‘[P]: No, I have not.

         ‘‘[Defense Counsel]: Have you noticed any severe depression?

         ‘‘[P]: No, I have not.

         ‘‘[Defense Counsel]: Have you noticed any eating disorders?

         ‘‘[P]: No, I have not.

         ‘‘[Defense Counsel]: Have you noticed any anger or ...


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