Argued
March 7, 2019
Procedural
History
Substitute
information charging the defendant with four counts of the
crime of risk of injury to a child, brought to the Superior
Court in the judicial district of Danbury and tried to the
jury before Russo, J.; verdict and judgment
of guilty, from which the defendant appealed to this court.
Affirmed.
Pamela
S. Nagy, assistant public defender, for the appellant
(defendant).
Kathryn W. Bare, assistant state's attorney, with whom,
on the brief, was Stephen J. Sedensky, state's attorney,
for the appellee (state).
Prescott, Bright and Cobb, Js.
OPINION
COBB,
J.
The
defendant, Juan V., appeals from the judgment of conviction,
rendered after a jury trial, of two counts of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(1)[1]
and two counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2).[2] On appeal, the
defendant claims that the court improperly (1) permitted the
jury to have with it during its deliberations a video
recording of a forensic interview between the victim and a
forensic interviewer, which was admitted as a full exhibit,
(2) instructed the jury on inferences in a manner that
diluted the state's burden of proof, and (3) denied his
motion for a disclosure of the victim's school records.
The defendant's first two claims concededly are
unpreserved and we conclude that the defendant has failed to
demonstrate that this court should review them or that he
should prevail pursuant to the doctrines on which he relies.
As to the defendant's third claim of error, we have
reviewed the victim's school records and conclude that
they do not contain any information that is exculpatory or
otherwise bears on the victim's credibility. Accordingly,
we affirm the judgment of the trial court.
The
jury reasonably could have found the following facts. In
2006, the defendant began dating the victim's mother, E,
and after about six months, the defendant moved in with E and
the victim. At that time, the victim was approximately four
years of age. In 2008, the defendant and E married, and the
defendant adopted the victim in 2009.[3]
When
the victim was approximately ten years old, the defendant
began touching her inappropriately when E was not home.
Specifically, the defendant ‘‘touched [the
victim] on [her] breasts and vagina with . . . [h]is mouth,
his hands and his penis.'' On one occasion, the
defendant attempted to put his penis inside of the
victim's vagina. At another point, the defendant
masturbated in front of the victim and ejaculated onto her
leg.
On
April 2, 2014, after watching a video in health class about
sexually transmitted diseases, the victim, who was twelve
years old, told two friends, J and S, that the defendant had
touched her inappropriately. J and S encouraged the victim to
tell her mother or another adult about the defendant's
conduct, but the victim said that she was too afraid to do
so. Later that day, at an after school program that the
victim, J, and S attended, a program counselor overheard J
and S discussing what the victim had told them about the
defendant and reported what she had heard to her supervisor,
who, in turn, contacted the Department of Children and
Families (department).
The
next day, the department contacted E. That same day, E met
with Terry Harper, a department social worker, and Harper
informed E about the victim's allegations. That evening,
E and the victim met with Donna Meyer, a forensic interviewer
and consultant for the department's multidisciplinary
investigative team. Meyer conducted a videotaped interview of
the victim, during which the victim stated that the defendant
began touching her inappropriately when she was ten years old
and that his inappropriate conduct continued until
approximately three weeks before her twelfth birthday.
Specifically, the victim stated that the defendant touched
her breasts and vagina multiple times and tried to kiss her
on the mouth once or twice. The victim also stated that the
defendant once came into the bathroom while she was
showering. The victim described another occasion when the
defendant showed her a pornographic video on his tablet
computer and touched her breast. The victim stated that she
was worried about contracting HIV because the defendant once
licked his hand before touching her vagina.
After
the forensic interview, Veronica Ron-Priola, a board
certified pediatrician and a medical consultant for the
department's multidisciplinary investigative team,
performed a medical examination of the victim. The victim
informed Ron-Priola that the defendant ‘‘touched
her breast and her private parts, under her
clothes.'' The victim also stated that the defendant
‘‘tried to put his thing in [her] private
parts.'' Ron-Priola asked the victim whether, by
‘‘thing, '' she meant the defendant's
penis, and the victim responded ‘‘yes.''
The victim also told Ron-Priola that
it‘‘hurt'' when the defendant put his
finger inside of her ‘‘privates'' and
that ‘‘a couple of times it hurt to go
pee-pee'' after the defendant touched her. Ron-Priola
reported that the results of the victim's medical
examination were normal.
The
defendant subsequently was arrested and charged with two
counts of risk of injury to a child in violation of §
53-21 (a) (1) and two counts of risk of injury to a child in
violation of § 53-21 (a) (2). On September 29, 2016,
following a jury trial, the defendant was convicted of all
charges. On June 28, 2017, the defendant was sentenced to a
total effective sentence of thirty years of incarceration,
execution suspended after twelve years, and twenty years of
probation. The defendant then filed the present appeal.
Additional facts and procedural history will be set forth as
necessary.
I
The
defendant's first claim on appeal is that the court
improperly permitted the jury to have with it during its
deliberations the videotaped recording of the victim's
forensic interview, which had been received into evidence as
a full exhibit. Specifically, the defendant claims that the
court should not have allowed the exhibit to be viewed by the
jury in the jury room, but should have required that the
exhibit be maintained separately and viewed only in open
court upon request by the jury. The defendant argues that by
allowing the jury ‘‘unfettered access''
to the recording, the court permitted the jury to afford the
victim's forensic interview more weight than the rest of
the evidence or other exhibits. We disagree.
The
following additional facts and procedural history are
relevant to this claim. Prior to trial, the state filed a
notice of its intent to offer into evidence the videotaped
recording of the victim's April 3, 2014 forensic
interview and a transcript of the interview. In response, the
defendant filed a written objection. In the defendant's
memorandum of law filed in support of the objection, he
argued that if the victim testified at trial,
‘‘the video should only be admitted if anything
in her testimony contradicts the statements made to the
forensic interviewer.''
On May
10, 2017, the victim testified at trial. During direct
examination, the victim testified in detail regarding
numerous instances of sexual assault by the defendant that
she had described in the forensic interview. The victim also
testified to additional incidents of sexual assault by the
defendant that she had not described in the forensic
interview. Additionally, during her trial testimony, the
victim stated that she did not recall telling Meyer of one
occasion of assault and that she had misstated the location
of another one of the assaults she had described in the
forensic interview.
Immediately
following this testimony by the victim, the state offered the
video recording and a transcript of the forensic interview
for substantive purposes. The defendant agreed that the
recording and transcript should be admitted as full exhibits,
‘‘given the nature of the testimony here today
and what is contained on the . . . video . . . .''
The video recording and the transcript were admitted into
evidence as full exhibits. The state then played the entire
videotaped forensic interview for the jury, and then finished
its direct examination of the victim. During the
defendant's cross-examination of the victim, the
defendant referenced the forensic interview multiple times.
During
closing argument, defense counsel pointed out discrepancies
between the victim's forensic interview and her testimony
at trial. Defense counsel expressly informed the jury that
the recording and a transcript of the forensic interview were
full exhibits in the case, that it would have them in the
jury room during deliberations, and urged them to review the
video recording in evaluating the victim's
credibility.[4]
After
the court charged the jury, it reviewed the exhibits with
counsel prior to delivering them to the jury for
deliberations. The courtroom clerk informed the parties that
the video recording of the forensic interview was a full
exhibit. The prosecutor then asked whether the necessary
equipment would be provided to the jury in the jury room so
that it could view the exhibit. The clerk responded,
‘‘That's my understanding.'' Defense
counsel raised no objection to the exhibit being submitted to
the jury in the jury room for its deliberations in the same
way as the other exhibits.
During
deliberations, the court received a note from the jury asking
to hear ‘‘[the victim's] full testimony . . .
.'' In response to this note, the court reminded the
jury that the victim's testimony included the videotaped
recording of her forensic interview.[5] The court then informed the
jury that the recording was a full exhibit and that they
could watch it ‘‘in the privacy of the jury room
. . . .''[6] The court also informed the jury:
‘‘If you want to send an additional note,
specifying further exactly what you'd like to hear,
I'll dismiss you for a couple of seconds . . .
.'' The jury responded that it wanted to hear the
victim's live testimony only and not the video recording
of the forensic interview. The court then had the
victim's in-court testimony played back for the jury.
Although
the defendant agreed that the video recording of the forensic
interview should be admitted as a full exhibit and encouraged
the jury to view the recording in the jury room during the
jury's deliberations, he now claims that it was error for
the court to permit the jury to have unlimited access to the
exhibit, and that the court should have withheld the exhibit
from the jury and allowed it to watch the recording only in
open court upon request by the jury.
The
defendant concedes that this claim is unpreserved but argues
that the judgment should be reversed under the plain error
doctrine. ‘‘It is well established that the plain
error doctrine . . . is an extraordinary remedy used by
appellate courts to rectify errors committed at trial that,
although unpreserved . . . are of such monumental proportion
that they threaten to erode our system of justice and work a
serious and manifest injustice on the aggrieved party. [T]he
plain error doctrine . . . is not . . . a rule of
reviewability. It is a rule of reversibility. That is, it is
a doctrine that this court invokes in order to rectify a
trial court ruling that, although either not properly
preserved or never raised at all in the trial court,
nonetheless requires reversal of the trial court's
judgment . . . for reasons of policy. . . . In addition, the
plain error doctrine is reserved for truly extraordinary
situations [in which] the existence of the error is so
obvious that it affects the fairness and integrity of and
public confidence in the judicial proceedings.''
(Internal quotation marks omitted.) State v. Ruocco,
322 Conn. 796, 803, 144 A.3d 354 (2016).
‘‘Our
Supreme Court . . . clarified the two step framework under
which we review claims of plain error. First, we must
determine whether the trial court in fact committed an error
and, if it did, whether that error was indeed plain in the
sense that it is patent [or] readily discernable on the face
of a factually adequate record, [and] also . . . obvious in
the sense of not debatable. . . . [T]his inquiry entails a
relatively high standard, under which it is not enough for
the defendant simply to demonstrate that his position is
correct. Rather, the party seeking plain error review must
demonstrate that the claimed impropriety was so clear,
obvious and indisputable as to warrant the extraordinary
remedy of reversal. . . . [U]nder the second prong of the
analysis we must determine whether the consequences of the
error are so grievous as to be fundamentally unfair or
manifestly unjust. . . . Only if ...