State Of Conn. v. Gupta

Citation297 Conn. 211,998 A.2d 1085
Decision Date29 June 2010
Docket NumberNo. 18122.,18122.
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticutv.Sushil GUPTA.

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Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney and Stacey M. Haupt, assistant state's attorney, for the appellant (state).

Hugh F. Keefe, New Haven, with whom, on the brief, was Tara L. Knight, for the appellee (defendant).

ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE, ZARELLA, McLACHLAN and ROBINSON, Js.*

KATZ, J.

After a jury trial in three consolidated cases, the defendant, Sushil Gupta, was convicted in two cases of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(5),1 sexual contact by means of a false representation by a health care professional that the sexual contact is for a bona fide medical purpose. The defendant appealed from the trial court's judgments of conviction to the Appellate Court, which reversed the judgments on the ground that the trial court had abused its discretion in consolidating the cases for trial and excluding certain medical treatises and instructional videotapes from evidence. See State v. Gupta, 105 Conn.App. 237, 256, 937 A.2d 746 (2008). We then granted the state's petition for certification to appeal, limited to the following issues: (1) “Did the Appellate Court properly conclude that the trial court abused its discretion in consolidating the three cases against the defendant?”; (2) “Did the Appellate Court properly determine that the trial court improperly failed to admit certain medical treatises and videotapes?”; and (3) “Did the Appellate Court properly conclude that the defendant's conviction for the sexual assault of M 2 required reversal even though it was the ‘most brutal and shocking’ of the three assaults that were consolidated for trial?” State v. Gupta, 286 Conn. 907, 944 A.2d 980 (2008). We answer the first question, which is dispositive of this appeal, in the affirmative. We also reach the second question, and conclude that the Appellate Court's conclusion was improper with respect to the treatises, but proper with respect to exclusion of the videotapes. We therefore affirm in part the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following facts that the jury reasonably could have found. “The defendant is a physician with a specialization in pulmonology. At the times relevant to this appeal, the defendant was affiliated with a group practice, the Cardiothoracic and Vascular Group (medical group) ....

“On August 29, 2003, J was a college freshman. That morning, her father took her to her appointment with the defendant because she appeared to have a sinus infection and was suffering from allergies and asthma. Because J had had sinus infections in the past, she had seen the defendant once or twice previously. When the defendant entered the examining room, J revealed her symptoms to him. She also added that she was menstruating because some of the symptoms she was experiencing were common to both her sinus problems and menstruation. The defendant asked J if her breasts were tender while she was menstruating, and, as he asked her, he cupped his hands against his chest. The defendant then felt J's sinuses, looked in her ears, nose and throat and felt the glands in her neck. J then removed her sweatshirt, and the defendant lifted the back of her tank top and placed a stethoscope on her back to listen to her lungs.

“When the defendant examined J's chest, he partially rolled up the front of J's tank top, exposing the lower half of her breasts. Surprised by this, J moved back and asked the defendant if he wanted her to roll up her tank top. The defendant nodded yes, and J rolled up the rest of her tank top. At this point, J was leaning back with her arms behind her on the examination table. First, the defendant touched J's left breast with his two fingers. Then the defendant placed both of his palms on her breasts simultaneously, and he began kneading or massaging her breasts, running his thumbs over the top of her nipples. While massaging J's breasts, the defendant made a grumbling or a low moaning sound. The defendant had not performed this type of breast examination during J's previous visits for sinus infections. After checking her abdomen, the defendant completed the examination and prescribed medications for her sinus infection. The defendant also recommended a follow-up appointment, which J made that day but cancelled shortly thereafter.

“After the examination, J did not tell her father about what had happened during her examination because she was not comfortable talking to him about it. J went home, however, and discussed the examination with her mother. J told her mother that she had a suspicion that she had been sexually assaulted....

“On November 7, 2003, D was twenty-two years old. On that day, D saw the defendant because her primary care physician had referred her to him after an X ray had revealed spots on her lungs. When D entered the examination room, a nurse asked her to remove her shirt but to keep her bra on and gave her a gown to put on. When the defendant came in, he felt D's glands and listened to her lungs with a stethoscope. He then asked her to unhook her bra and to lie down on the examination table. The defendant first used two fingers to feel D's breasts, but then he felt both breasts, one at a time, with his full hand. He did this twice to each breast. After completing the examination, the defendant told D that he was very worried about her condition and that she should make another appointment for five days later.

“On November 12, 2003, D returned for her second appointment. After D took a pulmonary functions test, the defendant examined her. The defendant asked D to unhook her bra, and then she lay down on the table. He then repeated the same procedure he had done during her first examination. He first used two fingers to feel around her breasts and then felt first one breast and then the other breast with his full hand. He did this twice with each breast. At the end of the examination, the defendant made a comment to D about how she was physically fit. After that appointment, D scheduled one more appointment for three weeks later. D was uncomfortable at the previous visit, but she returned regardless in an attempt to cure her illness. At this third appointment, the defendant performed the same examination he had performed during the two previous appointments. The defendant recommended that D schedule another appointment with him in March, 2004. Although she scheduled the appointment, she did not keep it....

“In March, 2004, M was employed as a medical assistant by the medical group. She had been employed by the medical group for four years. M mainly worked in one office, but on March 26, 2004, M was filling in for the defendant's medical assistant in another office. Prior to this date, M had approached the defendant about her having an examination with him. She was concerned because her father had told her that her mother and her grandfather had had tuberculosis and that she had tested positive for it as a baby. As a result, the defendant suggested that she have a chest X ray, and she complied with the recommendation. The defendant subsequently looked at the X ray, which he determined was normal. Nevertheless, he told her that she should still have an examination. The defendant then approached her three times about her having an examination with him.

“On March 26, 2004, the defendant examined M. He directed her to an examination room where she sat down on the examination table. The defendant closed the door behind them and then closed the window blinds. At that point, the defendant approached M, grabbed her face, kissed both sides of her cheeks and thanked her for coming in to help him that day. He then examined her by checking the glands in her neck and looking into her mouth. Next, he used a stethoscope on her back to listen to her breathing. As he was doing that, he asked her if he could remove her laboratory coat and then went under her shirt to listen to her breathing. He then asked if he could undo her bra and proceeded to do so. He listened to her chest and then went under her shirt in the front and listened to her chest again. When he was finished, M pulled her shirt down. The defendant then asked M to lie down on the examination table. She lay down on the table, and he pulled her top up quickly, taking the bra with it and fully exposing her breasts. The defendant told M that he was going to check for lumps. He began to feel her breasts with his fingertips, but then he firmly grabbed both of her breasts with his hands and started to massage them. As he massaged her breasts, the defendant remarked to M that her breasts were soft and beautiful. Next, the defendant tapped M's stomach and remarked that her stomach was flat. With one hand, the defendant pulled back the bottom of her pants, taking the underwear with it and exposing the top of her ‘private area.’ As he was tapping her pelvic bone, he commented that she was shaved and told her that she was ‘so hot.’ At that point, M asked the defendant if they were finished, and the defendant said it would only be a few more minutes.

“The defendant then again firmly massaged M's breasts with both of his hands. The defendant asked if he could kiss her breasts. Although M replied ‘no,’ the defendant proceeded to put his mouth on each breast and to suck on them briefly. He also pinched her nipples. At that point, M jumped up from the table, pulled down her shirt and said, ‘No, we are done. That is enough.’ The defendant then came up from behind M, put his hands underneath her shirt and grabbed her breasts, asking to feel her while she was sitting up. In response, M firmly took the defendant's hands, pulled them down and stated, ‘No, we are done.’ The defendant then...

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49 cases
  • State v. Devon D.
    • United States
    • Connecticut Supreme Court
    • June 14, 2016
    ...that it “need not be so unusual and distinctive as to be like a signature....” (Internal quotation marks omitted) State v. Gupta, 297 Conn. 211, 228–29, 998 A.2d 1085 (2010). Rather, the question is whether the evidence is sufficiently similar to demonstrate a propensity “to engage in the t......
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    ...the trial court in deciding which items ought to be admitted as full exhibits.” (Internal quotation marks omitted.) State v. Gupta,297 Conn. 211, 239, 998 A.2d 1085 (2010); see also C. Tait & E. Prescott, supra, § 7.11.3, at pp. 478–79.As stated previously, for a writing to be admissible un......
  • State v. Daniel W., AC 39844
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    • March 6, 2018
    ...his claim is unpreserved. We therefore decline to review it.6 The defendant argues that the present case is similar to State v. Gupta , 297 Conn. 211, 998 A.2d 1085 (2010). In that case, our Supreme Court concluded that the trial court abused its discretion in consolidating three cases agai......
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    ...cert. denied, 546 U.S. 1124, 126 S.Ct. 1103, 163 L.Ed.2d 915 (2006).” (Internal quotation marks omitted.) State v. Gupta, 297 Conn. 211, 231–32 n. 13, 998 A.2d 1085 (2010). 41. See, e.g., State v. Johnson, 289 Conn. 437, 451, 958 A.2d 713 (2008); State v. Sanseverino, 287 Conn. 608, 628, 94......
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