State v. Paul B., 33473.

• Decision Date: 02 July 2013
• Docket Number: No. 33473.,33473.
• Citation: 143 Conn.App. 691,70 A.3d 1123
• Parties: STATE of Connecticut v. PAUL B.
• Court: Connecticut Court of Appeals

143 Conn.App. 691

70 A.3d 1123

STATE of Connecticut

v.PAUL B.^*

No. 33473.

Appellate Court of Connecticut.

Argued Feb. 13, 2013.

Decided July 2, 2013.

Glenn W. Falk, Madison, assigned counsel, for the appellant (defendant).

Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Kevin J. Murphy, supervisory assistant state's attorney, for the appellee (state).

ROBINSON, BEAR and BORDEN, Js.

BEAR, J.

The defendant, Paul B., appeals from the judgment of conviction, following a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2). On appeal, the defendant claims that (1) the trial court improperly admitted hearsay statements of the victims through the testimony of an expert witness; (2) the trial court improperly admitted hearsay statements of the victims to provide context for a police officer's testimony about her interview with the defendant and failed to provide the jury with a limiting instruction for such hearsay statements; and (3) the state engaged in prosecutorial impropriety during closing argument when it used out-of-court statements made by the victims that had not been admitted into evidence for their truth. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. In 2005, the victims, who at all relevant times were children under the age of thirteen, and the defendant resided in two separate homes in close proximity to one another in Terryville. Another child, SA, not a victim in this case, visited his grandmother's home, which was across the street from the defendant's home. On occasion, the defendant baby-sat SA, and at times SA spent the night at the defendant's home. While SA was playing outside at the defendant's home, he met the victims, DA and DE, with whom he became friends. The defendant subsequently met the victims during their April vacation from school when they were playing with SA outside of his home. In the following weeks, the defendant met the victims' parents. The victims then began to sleep over at the defendant's home and, on occasion, he baby-sat them. When the defendant baby-sat the victims overnight, they occasionally slept in the defendant's bed with him. The defendant also dried off the victims with a towel after they showered at his home. Additionally, the defendant took the victims on an overnight trip to an amusement park in New Jersey.

The defendant wore only underwear when the victims slept in bed with him at his home. Approximately twice per week, DE would wear clothes to bed with the defendant, but would wake up not wearing clothes and feeling something wet “on [his] private.” The defendant would explain such occurrences by saying that DE had wet the bed. The defendant touched and rubbed DE's nipples and buttocks each night DE stayed over. The defendant also touched DE's penis and showered with DE. There were occasions when the defendant asked DA not to wear clothes to bed and, on occasion, the defendant did not wear any clothes to bed.

In July, 2005, the defendant injured his foot and moved into the home of the victims' parents, at the parents' suggestion, in lieu of moving into a convalescent home. Originally, the victims' parents intended that the defendant live in the basement of the home. Due to the defendant's foot injury and the stairs leading to the basement, however, the defendant slept on the couch on the main floor of the home. The defendant bought the victims' parents many items, including a refrigerator; a washer and dryer; and a living room set. He also split the cost of a bunk bed for the victims with their grandmother. The bunk bed consisted of a twin-size bed on the top bunk and a full-size bed on the bottom bunk. In 2007, the defendant legally adopted the victims' mother. The defendant lived in the home for approximately two and one-half years.

While the defendant lived in the home, DE called him “grandpa.” The defendant often slept in the bottom bunk bed with the victims and dried off the victims after they showered. On at least one occasion, the defendant touched DA “in a private place” while drying off DA following a shower. There were times that the defendant touched DA's penis and rubbed his buttocks while in bed. Once, the defendanttold DA to take off his clothes and refused to give a toy back to DA “unless [DA] got naked.” DA refused to do so and, instead, “slept under the bed.” One morning, while in bed with the defendant, DA woke up and “his face was all wet.” DA talked to the defendant about it, and the defendant told DA that DA had “just drooled in [his] sleep.”

DA observed the defendant touch DE in the same manner that the defendant touched DA—in the area of his buttocks and penis. DA observed the defendant touch DE “quite often.” The defendant removed DE's pants while DE slept. The defendant touched DE's nipples, buttocks and penis while DE slept. Once, the defendant asked DE if he could touch DE's penis and DE refused. DE often felt wetness in the bed when he awoke in the morning, and the defendant would tell DE that he had wet the bed. DE often saw wetness in the bed, but he could not tell “if it was drool marks or just pee.” There were times when the defendant would suck DE's nipples while DE slept. Once, DE felt “wetness” on his penis, “like, drool or something,” while he slept, and he woke up to see the defendant's face near his midsection. DE also felt the defendant lick his neck. DE left the bed to sleep in the living room to avoid the defendant touching him, “like, five times.” The defendant told DE that he would hurt him if he told his parents about the touching. DA did not tell his parents about the defendant's having touched him or DE because the defendant threatened that “he'd kill [the victims] or hurt [the victims].”

The victims' grandmother was concerned “that something was going on.” The grandmother periodically asked the victims whether the defendant did anything to them or touched them inappropriately. While spending the night at the grandmother's home in June, 2008, DE told his grandmother that the defendant had touched him inappropriately. DE “laid down on the floor and [demonstrated what the defendant] had done to him.” While demonstrating on the floor, DE told his grandmother that “he was kind of curled up, and he said that he was sleeping and [the defendant] was playing with his private, and he says he woke up and he told him to stop it. And then [the defendant] was kind of surprised that he woke up, so he stopped.” The grandmother informed the victims' mother two weeks later about what DE had demonstrated. The grandmother also informed her brother and the uncle of the victims' mother, J, about DE's statement. The victims' mother called her husband, who is DE's father and DA's stepfather, to inform him of DE's statement. As a result, the husband had a conversation with the defendant that resulted in the defendant leaving the home. J called the police to report the defendant's actions.

On August 4, 2008, Officer Kim Parrott received a telephone call complaint from J reporting a possible sexual assault that happened in the patrol zone that included the victims' residence. J referred Parrott to the victims' grandmother for further information because “she had disclosed to him that his nephew was possibly being sexually assaulted in his home by a live-in baby-sitter.” After speaking with the victims' grandmother, Parrott “called the [Department of Children and Families'] hotline and reported the incident to them.” On August 12, 2008, Diane Edell, a licensed clinical social worker, conducted a detailed interview of DE, for which Parrott was present.¹ On August 15, 2008, Parrott interviewed the defendant about the reported conduct for approximately twenty to thirty minutes. On August 25, 2008, Edell conducted a detailed interview of DA, for which Parrott was present. Subsequently, an arrest warrant was processed relating to the victims' statements and the defendant was arrested. The court held a six day jury trial at the conclusion of which the jury found the defendant guilty of two counts of risk of injury to a child in violation of § 53–21(a)(2). This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the defendant sets forth two claims that the trial court improperly admitted hearsay statements of the victims during the testimony of an expert witness, Edell. First, the defendant claims that the court improperly admitted testimony by Edell that constituted improper opinion on the credibility of the victims. Second, the defendant claims that the court improperly admitted a statement made by Edell that contained statements relayed to her by the victims during her interviews with them that constituted inadmissible hearsay. We will address each claim in turn.

A

We first address the defendant's claim that the court improperly admitted testimony by Edell that constituted improper opinion on the credibility of the victims. We are not persuaded that this issue properly is raised on appeal.

The defendant challenges three responses that Edell made during her testimony. First, Edell was asked: “What were the factors that you were particularly observing in regard to [the victims] ... that you were looking for to try to, you know, make sure that this was a valid disclosure?” Edell responded generally by discussing certain factors, without specifically referring to either victim or stating that either of them demonstrated any particular factor.² Defense counsel did not object to the question or to Edell's response to the question.

Later in her testimony, Edell was asked to give specific examples of how the victims demonstrated any of those factors, and she responded by referencing specific behavior exhibited by the victims. Defense counsel then objected to her response on the basis...