Argued
March 7, 2019
Appeal
from Superior Court, Judicial District of Danbury, Russo, J.
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Pamela
S. Nagy, assistant public defender, for the appellant
(defendant).
Kathryn
W. Bare, assistant states attorney, with whom, on the brief,
was Stephen J. Sedensky, states attorney, for the appellee
(state).
Prescott,
Bright and Cobb, Js.
OPINION
COBB,
J.
[191
Conn.App. 554] 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 [191
Conn.App. 555] General Statutes § 53-21 (a) (1)[1] and two
counts of risk of injury to a child in violation of
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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 states burden of proof, and (3) denied his motion for a
disclosure of the victims school records. The defendants
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 defendants third
claim of error, we have reviewed the victims school records
and conclude that they do not contain any information that is
exculpatory or otherwise bears on the victims 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 victims 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 [191 Conn.App. 556] 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 victims 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 defendants
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 victims allegations. That evening, E
and the victim met with Donna Meyer, a forensic interviewer
and consultant for the departments multidisciplinary
investigative team. Meyer conducted a videotaped interview of
the victim, during which the victim stated that the defendant
began [191 Conn.App. 557] touching her inappropriately when
she was ten years old and that his inappropriate conduct
continued until approximately three weeks before
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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
departments 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 defendants
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 victims 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 [191 Conn.App. 558] defendant then filed the
present appeal. Additional facts and procedural history will
be set forth as necessary.
I
The
defendants first claim on appeal is that the court
improperly permitted the jury to have with it during its
deliberations the videotaped recording of the victims
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
victims 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 victims April 3, 2014 forensic interview
and a transcript of the interview. In response, the defendant
filed a written objection. In the defendants 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
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her trial testimony, the victim stated that she did not
recall telling Meyer of one occasion of assault and that she
had [191 Conn.App. 559] misstated the location of another one
of the ...