State v. Aaron L., No. 17089.

• Court: Supreme Court of Connecticut
• Writing for the Court: KATZ, J.
• Citation: 272 Conn. 798,865 A.2d 1135
• Parties: STATE of Connecticut v. AARON L.
• Decision Date: 15 February 2005
• Docket Number: No. 17089.

865 A.2d 1135
272 Conn. 798

STATE of Connecticut
v.
AARON L

No. 17089.

Supreme Court of Connecticut.

Argued September 23, 2004.

Decided February 15, 2005.

865 A.2d 1138

David T. Grudberg, New Haven, 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).

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.¹

KATZ, J.

The defendant, Aaron L.,² appealed to the Appellate Court from the trial court's judgment of conviction, following a jury trial, on one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2)³ and two counts of risk

865 A.2d 1139

of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21(2).⁴ Following the decision of that court affirming the judgment of conviction; State v. Aaron L., 79 Conn.App. 397, 830 A.2d 776 (2003); we granted the defendant's petition for certification to appeal limited to the following issues: Did the Appellate Court properly conclude that: (1) the statement of the victim to her mother was admissible under the residual exception to the hearsay rule; and (2) there was sufficient evidence to allow the admission of a 1992 incident as uncharged misconduct?⁵ State v. Aaron L., 266 Conn. 924, 835 A.2d 474 (2003). We answer the certified questions in the affirmative and, therefore, we affirm the judgment of the Appellate Court

The jury reasonably could have found the following facts as summarized by the Appellate Court's opinion. "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 late summer of 1998], 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. [In] April, 1999, [when the victim was nine years old] the 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. [One] 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.⁶ The victim's mother confronted the defendant and reported the incident to the police. The defendant subsequently was arrested and charged with [two counts] of sexual assault [in the first degree] and

865 A.2d 1140

[three counts of] risk of injury to a child." State v. Aaron L., supra, 79 Conn.App. at 399-400, 830 A.2d 776

The record reflects the following additional facts and procedural history pertinent to the issues before us. Prior to trial, the defendant filed two motions: one sought an order for the state to disclose all criminal offenses or acts of misconduct that it would seek to introduce at trial, and the other sought to exclude all evidence of any prior crimes, acts, misconduct, or wrongdoings. The state filed notice that it intended to offer evidence of uncharged sexual misconduct concerning the defendant and the victim that had allegedly occurred in 1992 (1992 incident).

At the hearing on the defendant's motion in limine to exclude that evidence, the state represented that it would introduce testimony by the victim's mother and the victim's pediatrician, Jeffrey Cersonsky, regarding the 1992 incident, which occurred when the victim was two and one-half years old and which she could no longer recall. The state indicated that Cersonsky would testify that the victim's mother had brought the victim to be examined by him because the child spontaneously had said to her, "I'm not going to tell you, but I played with daddy's pee-pee. He likes it when I do it." On the basis of the mother's report, Cersonsky filed a report with the department of children and youth services (department)⁷ setting forth the victim's disclosure. The state argued that evidence of the 1992 incident should be admitted as prior uncharged misconduct pursuant to § 4-5(b) of the Connecticut Code of Evidence⁸ because it was evidence of a common scheme on the defendant's part to abuse his daughter sexually.

The defendant did not deny that, in 1992, the victim had touched his penis, but he claimed that the touching was accidental. Specifically, he claimed that he was sleeping nude when the victim crawled over and grabbed his penis. Accordingly, the defendant objected to the admission of the evidence on several grounds. First, he contended that the two events were not sufficiently similar because the 1992 incident, which he acknowledged, involved the victim touching him and the present charges relating to the 1999 incident, which he denied, involved him touching the victim. Second, the defendant contended that there was not sufficient evidence to prove that the 1992 incident was misconduct, rather than simply an accidental touching as he claimed. Third, he argued that the statements of the victim, which would be introduced through the testimony of the victim's mother and Cersonsky, constituted inadmissible hearsay and double hearsay. Specifically, the defendant contended that the trial court should not allow evidence of the 1992 incident because the testimony relating to that incident consisted of multiple layers of hearsay, and each layer could not be admitted independently.⁹

865 A.2d 1141

The trial court ruled that testimony concerning the 1992 incident could be admitted as evidence of a common scheme. In doing so, the court noted that, under State v. Kulmac, 230 Conn. 43, 62, 644 A.2d 887 (1994), the standard for the admission of prior misconduct is more liberal to show a common scheme or pattern in sex related crimes than in other crimes.¹⁰ The trial court stated that it was inclined to find the 1992 and 1999 incidents sufficiently similar to show a common scheme because the 1992 incident involved the same victim, an allegation of sexual abuse, and it was not too remote in time. The court concluded that, although the state had the burden of substantiating that the incident had occurred, in the present case there was no dispute that the incident had occurred, and the issue of whether the touching was accidental or initiated by the defendant was for the jury to determine. In response to the defendant's assertion that testimony by the victim's mother and Cersonsky relaying the victim's statements constituted hearsay and double hearsay, the court concluded that the victim had no memory of the incident and was, therefore, unavailable to testify about it. The trial court further concluded that the victim's statements through her mother and Cersonsky independently were admissible under the medical treatment exception to the hearsay rule.

Thus, over the defendant's continued objection, the victim's mother and Cersonsky testified about the 1992 incident. The victim's mother testified that, in 1992, when the victim was approximately two and one-half years old, she was carrying the child on her hip when the victim groped her breast. She stopped the victim from doing so and told her that the groping "wasn't nice." The victim's mother testified that the victim had responded, "I'm not going to tell you that I touch daddy's pee-pee." When the victim's mother later confronted the defendant about the victim's statement, the defendant informed her that he had been lying down wearing a pair of shorts when the victim crawled over and grabbed his penis.¹¹ The defendant explained that he had been upset about the behavior and had told the victim not to do it again. Although the victim's mother testified that, at that time, she did not believe anything inappropriate had happened, she took her daughter to be examined by Cersonsky to determine whether the victim had been abused sexually.

Cersonsky testified, on the basis of his office notes, that the victim's mother had relayed to him several statements the victim spontaneously had made at different periods of time prior to the examination. Specifically, he stated that the victim's mother had told him that the victim said, "I played with daddy's pee-pee," "I'm not going to tell you I played with daddy's pee-pee because he told me not to," and, "he likes when I do it."¹² Cersonsky testified

865 A.2d 1142

that his examination of the victim had revealed no evidence of sexual abuse, but also that he could not conclude that the child had not been sexually abused. Cersonsky further testified that, in accordance with his obligations under General Statutes § 17a-101, he reported the suspected abuse to the department. The trial court instructed the jury during the testimony of both Cersonsky and the victim's mother that the evidence was being admitted for the limited purpose of proving a common scheme and that it could not to be used to prove that the defendant had a propensity to commit the 1999 crime charged or that he must have committed the 1999 crime because he had engaged in the conduct alleged in the 1992 incident.

The jury returned a verdict of guilty on one count of sexual assault in the first degree and two counts of risk of injury to a child.¹³ In accordance with the...