Argued
September 5, 2019
Procedural
History
Substitute
information charging the defendant with two counts each of
the crimes of sexual assault in the first degree and sexual
assault in the fourth degree, and with four counts of the
crime of risk of injury to a child, brought to the Superior
Court in the judicial district of New Haven and tried to the
jury before Alander, J.; verdict and
judgment of guilty of two counts of sexual assault in the
fourth degree and four counts of risk of injury to a child,
from which the defendant appealed to this court.
Affirmed.
Norman
A. Pattis, for the appellant (defendant).
Laurie
N. Feldman, special deputy assistant state's attorney,
with whom, on the brief, were Patrick Griffin, state's
attorney, and Maxine Wilensky, senior assistant state's
attorney, for the appellee (state).
DiPentima, C. J., and Keller and Bright, Js.
OPINION
BRIGHT, J.
The
defendant, Osvaldo DeJesus, appeals from the judgment of
conviction, rendered after a jury trial, of four counts of
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (2), and two counts of sexual assault in the
fourth degree in violation of General Statutes § 53a-73a
(a) (1) (A).[1] On appeal, the defendant claims that the
trial court (1) improperly admitted into evidence expert
testimony that amounted to impermissible bolstering of the
victim's credibility and (2) erred in concluding, during
a pretrial hearing, that the victim was not an adverse party,
thereby precluding defense counsel from asking the victim
leading questions on direct examination. We affirm the
judgment of the trial court.
The
following facts, which the jury reasonably could have found,
and procedural history are relevant to our resolution of this
appeal. The defendant and the victim's mother, M,
[2]
were in a relationship when, in 2003 or 2004, the defendant
moved into the apartment M shared with her two daughters, D
and the victim. At the time, the victim was two or three
years old. Thereafter, the defendant, M, and her daughters
moved to a condominium. In 2005, M gave birth to the
defendant's son, S, and the five of them shared the
condominium.
In
2008, when the victim was eight years old, the defendant
began a pattern of sexually assaulting her in the bedroom the
victim shared with D. Over the course of the next two years,
the defendant sexually abused the victim both in and out of
the home. When the victim was ten years old, she began
menstruating, prompting the defendant to stop the sexual
abuse. In 2013, the defendant and M ended their relationship
and, at M's insistence, the defendant moved out of the
condominium. Because S continued to live with M, the
defendant would stop by the condominium unannounced and would
stay there until S went to sleep. The victim withheld
disclosure of the abuses she had suffered until she was
thirteen years old, at which point she confided in her
cousin, C. Unable to articulate verbally what had happened,
the victim disclosed the news to C by way of a text message
with the expectation that C would keep it a secret. Several
days later, the victim's aunt discovered the text message
and relayed the information to M. That night, M took the
victim to the police station where she gave videotaped and
written statements concerning the defendant's sexual
abuse. Three days later, the victim went to the child sexual
abuse clinic at Yale New Haven Hospital where she had a
videotaped forensic interview with Rebecha Sullivan, a
licensed clinical social worker.
On the
basis of the victim's complaint, the defendant was
charged with two counts of sexual assault in the first
degree, four counts of risk of injury to a child, and two
counts of sexual assault in the fourth degree. Following a
jury trial, the defendant was convicted of all four counts of
risk of injury to a child and both counts of sexual assault
in the fourth degree. He was acquitted of the remaining
charges. See footnote 1 of this opinion. The court imposed a
total effective sentence of thirty-two years of
incarceration, execution suspended after twenty years, with
fifteen years of probation and ten years of sex offender
registration. This appeal followed. Additional facts will be
set forth as necessary.
I
The
defendant claims for the first time on appeal that the trial
court improperly admitted into evidence expert testimony
regarding how child victims of sexual abuse behave and how
they disclose their abuse. More specifically, the defendant
argues that the court erred by admitting the testimony of
Donna Meyer, the state's expert in forensic interviewing,
despite the fact that she had never examined the victim. The
defendant concedes that he did not preserve this claim at
trial, arguing instead that this court should reverse the
judgment of conviction under the plain error doctrine. In the
alternative, the defendant asks that we exercise our
supervisory authority over the administration of justice to
preclude the admission of testimony from forensic
interviewers on the characteristics of children who disclose
sexual abuse and the different manners in which they disclose
such abuse. According to the defendant, such evidence is
irrelevant to whether a particular complainant is telling the
truth, is unduly prejudicial because it suggests that all
children who disclose sexual abuse were, in fact, abused, and
constitutes improper ‘‘vouching'' for the
complainant's credibility. Because our Supreme Court has
made clear that such testimony is admissible, we reject the
defendant's arguments.
The
following additional facts are relevant to our resolution of
the defendant's claim. The state called Meyer as an
expert witness in forensic interviewing to discuss generally
forensic interviewing and the dynamics of child sexual abuse
victims. Meyer testified at length as to what forensic
interviews entail, [3] the different types of disclosures,
[4]
what may cause a delayed disclosure, [5] and the effects domestic
violence in the home has on child sexual assault
victims.[6] She also discussed how a victim's
relationship with his or her abuser can impact the delay in
disclosure, stating that ‘‘the closer the
relationship, the longer the delay in general, that's
what research has shown.'' Meyer went on to discuss
the effect that sexual abuse has on a victim's sleep,
testifying that ‘‘[e]very child is unique, so it
depends on a lot of different things, but often times
children who have been sexually abused will experience
nightmares, some children may experience bed wetting, other
children may-may experience inability to fall ...