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State v. Juan V.

Court of Appeals of Connecticut

July 30, 2019

STATE OF CONNECTICUT
v.
JUAN V. [*]

          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 ...


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