State v. SCOTT C., No. 29920.

• Decision Date: 23 March 2010
• Docket Number: No. 29920.
• Citation: 990 A.2d 1252,120 Conn. App. 26
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. SCOTT C.

990 A.2d 1252

120 Conn.App. 26

STATE of Connecticut v. SCOTT C.¹

No. 29920.

Appellate Court of Connecticut.

Argued November 12, 2009.

Decided March 23, 2010.

David T. Grudberg, New Haven, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Richard J. Rubino, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and BISHOP and BEACH, Js.

BEACH, J.

The defendant, Scott C., appeals from the judgments of conviction rendered after a jury trial of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1), one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2) and one count of risk of injury to a child in violation of General Statutes § 53-21(a)(2).² All counts related to incidents involving his minor stepdaughter, which occurred at various times from 1998 through 2006. On appeal, the defendant claims that (1) the expert testimony at trial exceeded the scope of opinions disclosed by discovery and the permissible bounds of expert testimony in sexual abuse cases, and (2) the trial court erred in denying his posttrial motion for a new trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The victim, A, lived in Hartford for eight years with her mother, her half sister, her half brother and the defendant, her stepfather. Starting when A was ten years old, the defendant began sexually assaulting her in their home. At first, the defendant touched A's chest and vaginal area over her clothing. When A was eleven years old, the defendant began penetrating her digitally in the basement of their home. When A was twelve, the defendant began having sexual intercourse with her. A tried to resist the defendant's advances by "hitting him and kicking him, punching him, trying to scratch him, whatever she could do." The last time the defendant had sexual intercourse with A in Hartford was when A was thirteen years old.

In March, 2004, A and her family, including the defendant, moved to a different residence in Canton. The defendant continued to force A to have sexual intercourse with him in the new home. The last time the defendant and A had sexual intercourse was in June, 2006.

On August 7, 2006, the defendant disciplined A. Upset that the defendant was yelling at her, A went to her mother and told her that the defendant was a rapist. This was the first time A disclosed any allegations that the defendant had sexually assaulted her. A's mother "freaked out and called the police." The defendant then removed the telephone cord from the wall and shut off the power to the home. A and her mother subsequently went to the Canton police department to file a complaint against the defendant. Shortly thereafter, A and her mother went to the Hartford police department to lodge a complaint against the defendant there, as well.

On August 17, 2006, A told the Canton police that she did not want to proceed with the prosecution of the defendant and that she had been mad at him and made up the allegations. A told the Canton police department that she had been upset with the defendant's attempts to control and to discipline her. She also indicated that she had a dispute with him over finances regarding $400 that he had loaned to her. Kevin Wilkinson, an officer with the Canton police department, asked A to elaborate on why she did not want the defendant to be prosecuted. A then stated that "she didn't make it up, she just wanted this all to end. She didn't want to have to testify and go to court. And she just wanted the defendant out of her life." A said that she recanted her story because her mother told her that it was "messing her up and messing her family up." A also told her brother and her mother that she made up the allegations because "she hated the defendant and she wanted him out of her life."

At all relevant times, A was a patient of a pediatrician, Sherry Banack. As part of A's visits to Banack, during which A was sometimes accompanied by the defendant, A filled out a form indicating that she was not sexually active and that she was not concerned about pregnancies or sexually transmitted diseases. A apparently was not concerned about becoming pregnant by the defendant because he had told her that he had had a vasectomy. At no time did A inform Banack that the defendant was sexually assaulting her, despite some opportunity to do so when the defendant left A alone with Banack. After the allegations of sexual abuse had been made against the defendant, he called Banack and said: "Sherry, didn't you, like, examine her? Didn't you check her?" Banack took the defendant's inquiries to be a question as to whether she had performed a pelvic examination on A. Banack replied, "no, I don't routinely do that." This conversation led Banack to believe that the allegations were untrue because she thought "he would not have said that to her if he was guilty."

The state presented an expert witness, Diane Edell. By agreement of counsel, Edell testified after the defendant presented his witnesses. She was offered as an expert to testify about the late disclosure of sexual abuse by victims; she gained expertise from her work with a multidisciplinary team that investigates child sexual assault allegations in Connecticut. Edell testified as to common characteristics of sexual assault cases in which the victims did not disclose the assaults until well after they had occurred. She testified that in sexual abuse cases there is rarely any medical evidence, the abuse occurs in secrecy and disclosures of the abuse usually are delayed. She also stated that often the victim and the offender know each other and that alleged offenders look like "everyday people." Edell explained that there were several causes for late disclosure by the victim, including the relationship between the offender and the victim, the victim's fear of destruction of the family unit if she discloses the abuse and the victim's embarrassment and guilt over the abuse that is occurring. Edell then went on to elucidate how, in her experience, purposeful or accidental disclosure occurs. She described that it was not unusual for a victim of sexual abuse later to recant her allegations. Defense counsel's brief cross-examination of Edell elicited that Edell's testimony was not related to anything that specifically happened in this case.

I

The defendant first claims that statements made by Edell were improper because they (1) exceeded the scope of the state's pretrial disclosure and, thus, strayed beyond the scope of the court's ruling permitting Edell's testimony, (2) encroached on the jury's role by impermissibly commenting on the credibility of the victim and (3) were improperly inflammatory. We decline to review this claim.

As a preliminary matter, the state argues that this claim was not preserved for appellate review because the defendant failed to object to Edell's testimony on these particular grounds and, instead, objected only to the state's late disclosure of Edell.³ The defendant argues that his claim is preserved on appeal because he objected prior to jury selection to any expert testimony in this case. We agree with the state and conclude that the defendant's claim is unpreserved because of his failure to object at any time to the substance of Edell's testimony.

The following facts and procedural history are relevant. On January 31, 2007, the defendant filed a request for disclosure and inspection in which he requested, among other things, "any reports or statements of experts made in connection with the offense charged ... which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at trial...." The state did not respond to the defendant's motion with any information about a potential expert in this case.

On February, 1, 2008, the first day of jury selection, the state informed the court that its case-in-chief would consist of two witnesses, the victim and an unnamed individual who would "testify as an expert as to why individuals, victims, late disclose." The defendant objected to the state's proposed expert witness on the ground that the state failed to provide any information about this expert witness until the eve of trial. The court reserved judgment, allowing the state to add the expert to its witness list and instructed the parties that it would revisit the issue prior to the introduction of evidence.

The court heard further argument on the defendant's request to strike the expert from the state's witness list on February 5, 2008. The defendant reiterated his argument that the expert should be precluded because the state did not disclose its intention to present an expert witness until the first day of jury selection. He argued that he was prejudiced by the introduction of any expert testimony because the state had provided him with only the expert's identity and the vague idea that she would testify about late disclosure. The state responded that there were no reports from this expert, the expert had never met with the victim, the expert did not know the facts of the case and the expert would "testify entirely to the generalities of late disclosure."

The court stated that "this type of evidence, the use of a person who is not going to testify to a particular fact of this case, but just as to general concepts as an expert, is a decision that you tend to make later in the day because you have to assess your case and make a determination typically whether you need this kind of testimony." It did not "fault the state with respect to its failure to disclose the name of the witness a year ago." Finding that the state had not acted in bad faith, the court denied the defendant's motion. It did, however, "direct the state to work with defense counsel to...