State v. Aaron L., (AC 22450)

• Court: Appellate Court of Connecticut
• Writing for the Court: DRANGINIS, J.
• Citation: 830 A.2d 776,79 Conn. App. 397
• Parties: STATE OF CONNECTICUT v. AARON L.
• Docket Number: (AC 22450)
• Decision Date: 16 September 2003

79 Conn. App. 397
830 A.2d 776

STATE OF CONNECTICUT
v.
AARON L.¹

(AC 22450)

Appellate Court of Connecticut

Argued May 28, 2003.

Officially released September 16, 2003.

Dranginis, Bishop and Hennessy, Js.

79 Conn. App. 398

David T. Grudberg, with whom was Ira B. Grudberg, for the appellant (defendant)

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and Kevin Doyle, assistant state's attorney, for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, Aaron L., appeals from the judgment of conviction, rendered following a

79 Conn. App. 399

trial to the jury, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2).² On appeal, the defendant claims that (1) the court improperly admitted evidence of and hearsay evidence related to prior uncharged misconduct concerning the defendant, (2) the court improperly restricted his cross-examination of the victim, and (3) the cumulative effect of the court's evidentiary rulings violated his state and federal constitutional rights to confrontation. We affirm the judgment of the trial court

The jury reasonably could have found the following facts that are relevant to this appeal. The victim was born in 1989, the only child of her mother and the defendant, who never married. The victim's parents continued their relationship for about one year after the victim was born. Since the time that her parents separated, the victim has lived with her mother, but maintained a relationship with the defendant and his family by visiting with them, most often in the home of the defendant's parents. The defendant saw the victim on a weekly basis when he resided in Connecticut, but less frequently between 1992 and 1998, when he resided outside the state. At times, the relationship between the defendant and the victim's mother was contentious due to issues of child support, visitation and the manner in which the victim was to be disciplined.

In the spring of 1999, the defendant, having returned to Connecticut, visited with the victim on weekends at his parents' home, where he and the victim slept in the same bed. During the month of April, 1999, the

79 Conn. App. 400

defendant entered the bedroom after the victim had retired, got into bed and removed the victim's pajama bottom and underwear. He then used his finger to poke the victim's stomach, legs, inner thigh and the top of her vagina. He also inserted his finger into her vagina. On the first Friday in May, 1999, the victim told her mother that she did not want to visit with the defendant that weekend and confided that the defendant had sexually abused her. The victim's mother confronted the defendant and reported the incident to the police. The defendant subsequently was arrested and charged with multiple counts of sexual assault and risk of injury to a child

As in many cases of sexual assault involving children, the credibility of the victim and the defendant is often the key decision for the jury to make. In this case, the jury heard evidence that raised concerns about the credibility of both the victim and the defendant. The victim's mother and the defendant's family testified that the victim was known to exaggerate and to be untruthful. The jury also heard evidence that challenged the credibility of the defendant. The jury heard evidence that in 1998, the defendant had told his mother that because he thought that someone else had been sexually abusing the victim, he had checked the victim while she was sleeping for evidence that she had been sexually abused. After the defendant had been arrested, he told one of his brothers that the only thing that had had happened between him and the victim was that he had examined her private parts for bruises to determine whether someone else had abused her. Also, after he had been arrested, the defendant told a female acquaintance that while the victim was sleeping, he had lifted the victim's sleeping garments to check her for a rash.³

79 Conn. App. 401

In addition, the jury heard testimony that the defendant kept adult magazines to which the victim had access and that he had entered his mother's place of employment after hours and used a computer to gain access to pornographic material. See footnote 10

Following the jury's verdict, the court sentenced the defendant to twelve years in the custody of the commissioner of correction, suspended after five and one-half years. Additional facts will be discussed where necessary.

I

The defendant has raised three evidentiary claims on appeal. He claims that the court improperly (1) admitted evidence of 1992 uncharged misconduct pursuant to § 4-5 (b) of the Connecticut Code of Evidence,⁴ (2) admitted hearsay evidence about the 1992 uncharged misconduct and (3) restricted the scope of his cross-examination of the victim. We disagree.

The standard of review that applies to the defendant's evidentiary claims is well established. "The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.. . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law. . . . And [it] requires a knowledge and understanding

79 Conn. App. 402

of the material circumstances surrounding the matter. . . . In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court's ruling." (Citation omitted; internal quotation marks omitted.) State v. Ciccio, 77 Conn. App. 368, 382, 823 A.2d 1233 (2003).

A

The following additional facts are necessary for our review of the defendant's claims that the court improperly admitted evidence of and hearsay evidence related to the 1992 uncharged misconduct. Immediately prior to trial, the defendant filed a motion asking the court to order the state to disclose criminal offenses or acts of misconduct that it would seek to place in evidence at trial. The defendant simultaneously filed a motion in limine, asking the court to exclude from evidence any of his crimes, acts, misconduct or wrongdoing other than the crimes with which he was charged in this case. In response, the state filed notice that it intended to offer evidence of uncharged 1992 sexual misconduct concerning the defendant and the victim. The court heard arguments with regard to the motions and notice prior to the presentation of evidence in the case.

At the hearing on the motion to present evidence of uncharged misconduct, the state represented that the victim's pediatrician, Jeffrey Cersonsky, would testify about the victim's disclosure involving the defendant. The state proffered that Cersonsky would testify that the victim's mother had brought her to Cersonsky for examination because the child spontaneously had said that her "daddy liked it when she touched his pee-pee," and, "I'm not gonna tell you, but I played with daddy's pee-pee." The victim's mother relayed that information to Cersonsky, as well as her opinion that she did not believe that the defendant would engage in that type of conduct. On the basis of a report from the victim's

79 Conn. App. 403

mother, Cersonsky informed the then department of children and youth services (department),⁵ which conducted an investigation of the victim's disclosure. The victim, who was then two and one-half years of age, would not tell Cersonsky about the incident and was not interviewed by the department.

The state argued that evidence of the 1992 incident should be admitted as prior uncharged misconduct because it was evidence of a common scheme on the defendant's part to sexually abuse his daughter. The state noted that the alleged incident in 1992 had occurred in the same place where the incidents alleged in the present case had occurred—the home of the defendant's parents—the defendant's conduct was similar in nature, the victim was the same and the occurrence of the prior incident was not too remote in time relative to the present charges. The state cited State v. Kulmac, 230 Conn. 43, 60, 644 A.2d 887 (1994), and State v. Morowitz, 200 Conn. 440, 446, 512 A.2d 175 (1986), in support of its argument.

The defendant countered that the two events were not similar enough to warrant the admission of the 1992 misconduct evidence. The defendant did not deny that in 1992, the victim touched his penis, but claimed that he was sleeping nude when the victim, who was not yet three years old, crawled over and grabbed his penis. According to the defendant, the 1992 touching was accidental. He also argued that the incidents were distinguishable because the 1992 incident, which he acknowledged, involved the victim's touching him and the present charges, which he denied, involve his touching the victim.

The court inquired of the defendant whether his claim was one of prejudice or whether he was denying that the 1992 incident occurred. The court explained that

79 Conn. App. 404

uncharged misconduct does not necessarily mean that the defendant, in fact, did what is claimed as uncharged misconduct, but that there is just an allegation of that misconduct. The defendant replied that there was no misconduct because the 1992 touching was accidental. The court responded that it did not know whether there was misconduct and that the state had the burden of substantiating that the incident in fact occurred. The court also indicated that if the evidence of the 1992 event were permitted, the court would give a limiting instruction that the defendant was not being tried...