State v. Abrahante

• Decision Date: 14 December 1999
• Docket Number: (AC 18611)
• Citation: 741 A.2d 976,56 Conn. App. 65
• Parties: STATE OF CONNECTICUT v. JOSE L. ABRAHANTE
• Court: Connecticut Court of Appeals

56 Conn. App. 65

741 A.2d 976

STATE OF CONNECTICUT v. JOSE L. ABRAHANTE

(AC 18611)

Appellate Court of Connecticut.

Argued September 24, 1999.

Officially released December 14, 1999.

Foti, Landau and Dupont, Js.

Jerald S. Barber, for the appellant (defendant).

Denise B. Smoker, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David P. Gold, supervisory assistant state's attorney, for the appellee (state).

Opinion

FOTI, J.

The defendant, Jose L. Abrahante, appeals from the judgment 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) (2), two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and six counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court abused its discretion in (1) allowing certain witnesses to testify as to the victim's prior consistent statements, (2) admitting evidence regarding the defendant's uncharged misconduct and (3) refusing to charge as requested on the credibility of child witnesses. The defendant also claims that he was deprived of a fair trial because of prosecutorial misconduct committed during summation, and that the court improperly charged the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1994, the victim, E, a ten year old girl, was a participant in a preschool day care program where the defendant was employed as a teaching assistant. During a school vacation in April, 1994, the students and teachers involved in the program went to a park. At some time during a hike up to a tower in the park, the defendant and E were alone on the trail. E asked the defendant how many times he had had sex, and the defendant replied, "[fifty] to [100] times." She then asked him how many times he had had a "blow job," and he told her, "About [fifteen] times." The defendant asked her "if [she] knew different sexual positions." E said that she did not and tried to change the subject because she felt "stupid."

A few days later, one of the teachers in the program found a pocketbook that E had left behind when she went to class. Inside the pocketbook was a diary in which E discussed her conversation with the defendant at the park. The teacher gave the diary to Judy Kenney, the director of the day care program, who called E's mother and arranged to meet with her the next day. At that meeting, Kenney told E's mother about the diary entry. When her mother confronted her, E admitted that the conversation had taken place. In addition, E's mother learned from Kenney that the defendant had admitted answering E's questions. She therefore asked Kenney to "keep a close eye on the situation" and to make sure that E and the defendant were kept apart.

On March 28, 1995, the defendant and E were alone again in a storage closet that was also used as an office and a kitchen area for the day care program. The defendant told E that he had a "secret" that had happened five minutes ago. He said that his secret was that E had bent over and he had seen down her shirt. The defendant then asked E to pull the top of her shirt down, but she refused. He then fondled E's breasts through her clothes.

After this first incident of sexual contact, the defendant's relationship with E intensified. He continued to meet E in the storage closet and devised a system for meeting E in a stairwell near the gymnasium, where the day care program was held. The defendant would tell E to get permission to use the girls' bathroom, which was off the hallway outside the gym. He would then walk by the bathroom and jingle his keys. From this signal, E knew to meet the defendant in the stairwell at the end of the hallway.

On the stairs and in the closet, they engaged in a variety of sexual activities three to four times a week. The defendant lifted up E's shirt and bra and kissed and rubbed her breasts. He also put his hands inside E's pants and underpants, touching her private area and putting his fingers inside her. He also asked E to touch and "lick his dick." At first, E refused to perform oral sex, but she subsequently complied. Although the defendant did not ejaculate during oral sex, he sometimes ejaculated into a tissue when E was touching him.

During this time, the defendant made repeated comments to E about her developing breasts. On one such occasion, the defendant was whispering to his cousin, who also worked at the day care program. E asked the defendant what he was whispering about, and he told her that he had asked his cousin whether he thought that she was wearing a bra. The defendant also told E that other staff members had asked him if he knew whether she "stuffed her bra." He repeatedly asked E what color her bra was.

On June 12, 1995, the defendant met E in the closet and told her to wear loose clothing or sweatpants the next day so that he could have vaginal intercourse with her. When E got home later that day, however, she was confronted by her parents, who had learned that she had been telling her friends about her relationship with the defendant. Although E denied that anything had happened and said that her friends were lying, E's mother immediately removed her from the day care program, and she had no further contact with the defendant.

A few days later, E was interviewed by Peggy Hartman, a social worker from the department of children and families (department). E denied that she had had sexual relations with the defendant. She repeated this denial a third time to Nancy Frieberg, a psychologist who also interviewed her.

In February, 1996, E was brought to the police station by her parents. There, E met with Pam Kudla, a crisis intervention specialist working primarily with victims of sexual abuse. E told her some of the details of her relationship with the defendant. She refused, however, to give a formal written statement. Kudla told E that she could come back when she was ready "to talk about it again" and gave her the telephone number for a crisis hot line.

Later that month, E and her friend, J, called the hot line and spoke with Trishia Orozco. E told Orozco some of the specifics of what the defendant had done to her and said that she could not decide whether to give a statement against the defendant to the police. Orozco spoke with E for about one hour, after which she immediately contacted the department.

On October 16, 1996, E gave Kudla and police officer Terry Smyth a written statement describing what the defendant had done to her.

I

The defendant claims that the trial court improperly allowed three witnesses to present testimony as to the victim's prior consistent statements.

Certain additional facts are necessary for the resolution of this issue. During the cross-examination of E, defense counsel inquired about apparent inconsistencies between E's trial testimony and her prior statements setting forth specifics regarding what she had told both Kudla and Orozco. He suggested that perhaps she had fantasized the allegation to make herself look more mature.

Thereafter, the state sought to introduce testimony from Kudla, Orozco and J, who was with E during her telephone call to Orozco, detailing E's prior statements. The defendant objected when Kudla's testimony was offered. The trial court overruled the defendant's objection, stating that because the thrust of the defendant's cross-examination of E was inconsistency and fabrication, Kudla's testimony was admissible "for a limited purpose, just so [the jury] can compare the details of this complaint with all the other instances or versions of it to see if it is inconsistent or consistent."

Accordingly, the trial court instructed the jury that Kudla's testimony could be used to "compare the testimony on the stand by [E] to what [E] said, whenever she said it, to see if the stories are consistent and in that way you can judge the credibility of the complaining witness here, are the stories consistent or inconsistent and then by using the testimony in that way you can decide if the witness is credible." The court further instructed as follows: "So, you use it, you use this testimony for evaluating the credibility of the complaining witness. It is not like the witness is up here testifying. The witness did testify in this case and on direct examination testified about what happened. That's direct evidence of her complaint. This witness could not give you direct evidence of this event because she was not there. She is telling you details that were repeated to her so that you can compare the details with the testimony that was produced [from E]."

Following Kudla's testimony, Orozco and J testified, without objection by the defendant,¹ regarding E's statements.

In its final instructions, the trial court reminded the jury that it could use evidence of E's prior statements "to corroborate her testimony in court. It is to be considered by you only in determining the weight and credibility of [E's] testimony. The fact that [E] made these statements is not being offered to prove that it happened. It is for a different reason. It is being offered to corroborate her testimony here in court. In determining the extent of such corroboration in her statements out of court you will carefully consider all the circumstances under which they were made, and particularly you should consider whether she has been constant and consistent in what she has said."

The court further instructed the jury that, "[i]n addition to the purpose of corroborating her testimony, [E's] out-of-court statements may be used for the purpose of impeaching her testimony and both sides argued each way in this regard. Therefore, you may rely on any contradictions and inconsistencies or falsities which you find in the complainant's out-of-court statements. You...