State v. Alvarez
| Decision Date | 14 December 2021 |
| Docket Number | AC 43506 |
| Citation | 267 A.3d 303,209 Conn.App. 250 |
| Parties | STATE of Connecticut v. Ulyses R. ALVAREZ |
| Court | Connecticut Court of Appeals |
Norman A. Pattis, Bethany, for the appellant (defendant).
Samantha L. Oden, former deputy assistant state's attorney, with whom, on the brief, were Dawn Gallo, state's attorney, and Jessica Gouveia, deputy assistant state's attorney, for the appellee (state).
The defendant, Ulyses R. Alvarez, appeals from the judgment of conviction, rendered by the court following a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (E) and (8), and risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and (2). On appeal, the defendant claims that the trial court abused its discretion by (1) allowing the state to introduce evidence of uncharged misconduct, (2) withholding relevant sealed records from the defendant, and (3) barring defense counsel from inquiring into the sexual history of the complaining witness, K.1 We agree with the defendant's second claim and, accordingly, reverse the judgment of the trial court and remand the case for a new trial. We also address the defendant's first claim because the issues underlying the claim are likely to arise on remand.2
The following facts, which the jury heard, and procedural history are relevant to our resolution of the defendant's claims. From January to April, 2017, K, a fifteen year old girl, resided at Touchstone, a residential rehabilitation facility for at risk girls. During this same time period, the defendant was employed by Touchstone as an adolescent development specialist and was responsible for the general welfare and care of Touchstone's residents.
At trial, K testified to the following. In February, 2017, the defendant began acting inappropriately toward her. During her first week at Touchstone, the defendant looked K up and down, an act she described as "how guys normally check females out." A few days later, he blew K a kiss when the two passed on the stairs.
A couple of weeks later, when K was by herself in one of Touchstone's common rooms and the defendant was sitting in a chair facing the entryway to the room, he told K to masturbate in front of him. K did so, and, while she was masturbating, the defendant used signals to direct her movements. If his legs were up and resting on the wall, that was a sign that K should continue masturbating. If he lowered his legs, that indicated to K to stop. Additionally, when the defendant placed his hand inside of the cuff of his pants, that meant that he wanted K "to go inside [of her] underwear," and when he rubbed the top of his pants, that indicated to K to masturbate "outside of [her] pants."
K testified that the defendant had her masturbate for him at least nine more times. During some of those incidents, he showed K pictures on his phone of sexual positions and asked her to pose similarly. On one occasion, the defendant gestured for K to masturbate and then wipe her vaginal fluid on his hand. K complied, and the defendant licked his hand. On two occasions, she masturbated for him in her bedroom and without any pants on.
K further testified that the defendant's actions toward her did not stop at masturbation. He commented on her body, told her that she had a "nice butt," and mentioned that he wanted her to wear leggings around him. He also showed K a picture of his naked back and back tattoo and made sexual gestures to her, including putting his index finger and middle finger in a "V" shape underneath his mouth and then sticking his tongue through the "V," which K understood as a reference to oral sex. At one point, the defendant gave K a note telling her that he wanted to have sex with her. He also showed K notes in his phone that said, "I want to fuck you so bad" and "lick, lick."
K testified that, on one occasion, the defendant took her and some other residents to Walmart. During the ride, he held K's hand. After the group returned to Touchstone, the defendant reached for his backpack, which was at K's feet, and, in the process, slid his hand along K's inner thighs, almost up to her vagina. Then, when K got out of the car, he asked her to put a bag into his car. As she did so, he touched and gripped her buttocks.
A, another Touchstone resident, testified at the defendant's trial. During her testimony, A stated that K told her that the defendant asked K to masturbate for him multiple times and generally had been acting inappropriately toward her. A further stated that she saw the defendant and K holding hands during the Walmart trip and previously had seen the defendant blow kisses at K. A also testified that the defendant had behaved inappropriately toward her. According to A, the defendant told her that she had the body of a twenty-four year old, repeatedly winked at her, and made sexual gestures at her. A further stated that the defendant often had an erection when he interacted with her and once said that he wished she could help him with his erection. A also testified that the defendant told her that he wanted to have sex with her and that he wanted to see her outside of the program.
On February 14, 2017, a Touchstone resident reported the defendant to a Touchstone employee for behaving inappropriately toward K, and an investigation was initiated, but K denied the allegations. Then, on April 12, 2017, when K was in the dining hall, she saw the defendant looking at another resident "the same way he looked at [her]." K became upset and started yelling at him. One of Touchstone's supervisors, Kristen Fracasso-Kersten, heard the noise and came downstairs to find K screaming, crying, and hyperventilating. Fracasso-Kersten then sent K to speak with Christina Borel, Touchstone's clinical director. While talking with Borel, K disclosed what the defendant had done to her. Fracasso-Kersten later reviewed Touchstone's surveillance video and saw footage of the defendant signaling with his legs in the manner K had described.
At trial, Detective Paul Lukienchuk of the Connecticut State Police testified about his efforts to serve a search warrant on the defendant. The warrant authorized Detective Lukienchuk to collect the defendant's phone. When he attempted to execute the warrant, the defendant tried to hide his cell phone by slipping it into his mother's purse. Detective Lukienchuk eventually was able to obtain the phone and review its contents. On the phone, he found pictures of the defendant's back and back tattoos, a picture of the defendant making the "V" sign that K had described, and a message containing the words "lick, lick."
On the basis of this evidence, a jury found the defendant guilty of two counts of sexual assault in the fourth degree and two counts of risk of injury to a child. The court accepted the jury's verdict and sentenced the defendant to a total effective term of imprisonment of nineteen years, execution suspended after five years, with twenty-five years of probation and a $1000 fine. Additional facts and procedural history will be set forth below as necessary.
The defendant claims that the court abused its discretion by failing to disclose certain confidential records related to K and A, in violation of his constitutional right to confrontation.3 We agree.
The following additional facts and procedural history are necessary to our resolution of this claim. Prior to trial, on the basis of an agreement between the parties, the state subpoenaed records related to K and A from the Department of Children and Families (department) and juvenile court, and defense counsel subpoenaed records from several hospitals and mental health facilities that had treated K and A. These records were provided to the court under seal, and the court reviewed the records in camera. Certain unspecified department records were then released to the parties.4 The rest of the records, none of which were released, remained under seal. These sealed records were later made part of the appellate record, and we, at the defendant's request, conducted our own in camera review of the sealed records to determine whether they contain information related to the credibility and truthfulness of K and A.
"A criminal defendant has a constitutional right to cross-examine the state's witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception." State v. Slimskey , 257 Conn. 842, 853, 779 A.2d 723 (2001). Thus, in certain instances, a witness’ right to keep certain records confidential must give way to a defendant's constitutional right to confrontation. See id., at 853–84, 779 A.2d 723. Our Supreme Court has set forth a procedure to be used by trial courts when these two rights potentially come into conflict. ...
To continue reading
Request your trial
- State v. Carrillo
- State v. Alvarez
-
State v. Alvarez
...assistant state's attorney, in support of the petition.The state's petition for certification to appeal from the Appellate Court, 209 Conn. App. 250, 267 A.3d 303 (2021), is granted, limited to the following issues:"1. Did the Appellate Court improperly apply the constitutional harmless err......