State v. Angel M.
| Decision Date | 20 March 2018 |
| Docket Number | AC 39723 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. ANGEL M. |
Pamela S. Nagy, assistant public defender, for the appellant (defendant).
Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy and Anne Mahoney, state's attorneys, for the appellee (state).
Keller, Mullins and Elgo, Js.
The defendant, Angel M., appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a–70 (a) (2), attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a–49 and 53a–70 (a) (2), and risk of injury to a child in violation of General Statutes § 53–21 (a) (2). On appeal, the defendant claims that (1) the trial court erred by admitting uncharged sexual misconduct evidence, (2) the prosecutor engaged in impropriety that deprived him of the constitutional right to a fair trial, and (3) the trial court violated his right to due process at sentencing by penalizing him for exercising his fifth amendment privilege against self-incrimination. Although we agree with the defendant that one of the prosecutor's comments was improper, we, nevertheless, conclude that the defendant was not deprived of his due process right to a fair trial. We reject the defendant's other claims, and we, accordingly, affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. M is the mother of the victim. M became romantically involved with the defendant when the victim was approximately three or four years old. M had two children, G and the victim, from a previous relationship. The defendant was a father figure to the victim, and she was considered his stepdaughter.
Approximately one year after the defendant and M began dating, they had a child together named A. At some point in 2000, the defendant moved in with M. They lived together with the three children, the victim, G, and A, in an apartment in Hartford until they purchased a house in 2008.
In 2006 or 2007, when the victim was approximately twelve years old,1 she arrived home after school and went into her mother's bedroom to play a game on the family's computer. While she was playing on the computer, the defendant came up behind her and began kissing her neck. The victim froze. Then the defendant picked her up and threw her on the bed.
He locked the bedroom door and "did something near the side of the bed" before lifting up the victim's shirt and licking her breasts. The defendant proceeded to lick the victim's vagina before taking off his pants and attempting to put his penis in her vagina. The victim closed her legs, and the defendant got off of her.2
Several years after that incident, on the evening of December 18, 2011, the defendant and M were involved in an incident outside of a restaurant in Newington. That evening, M had gone to the restaurant without the defendant. She was socializing with a female friend and another man. The defendant, who had been waiting impatiently for her to come home, decided to go to the restaurant to find her. When he arrived, he saw M socializing with a man he did not recognize. He became angry. He confronted M in the parking lot and an argument ensued. The defendant struck M multiple times. The police arrived shortly thereafter and arrested the defendant. In January, 2012, a protective order was issued as a result of the incident. Thereafter, the defendant stopped providing financial assistance to M, and he moved out of the house and into his own apartment.
Shortly after the defendant moved out of the house, A ceased all communication with him. The lack of communication between A and the defendant concerned M. As a result, M asked the victim to talk to A in order to figure out why A was ignoring the defendant. On February 7, 2012, the victim started a conversation with A via text messages concerning the change in her relationship with the defendant. In those communications, A told the victim that the defendant had molested her. The victim also revealed that the defendant had molested her, and the victim encouraged A to tell their mother.
Shortly after this conversation, the victim told M that A had been abused by the defendant. Upon learning about the abuse, M contacted A's therapist, Mary Mercado, who reported the abuse to the Department of Children and Families (department). The department referred the case to the Hartford Police Department, and Detective Frank Verrengia investigated the case. The victim and A both participated in forensic interviews in March, 2012. The victim disclosed her abuse during the forensic interview on March 8, 2012. Following an investigation, the police arrested the defendant on April 18, 2013. The case involving A, however, was administratively closed in May, 2013.
The state charged the defendant with one count of sexual assault in the first degree, one count of attempt to commit sexual assault in the first degree, and one count of risk of injury to a child. At trial, the defendant's theory of defense was that the victim and her sister both fabricated the allegations of sexual abuse. Specifically, he claimed that they made these false allegations in retaliation for his having hit their mother during the restaurant incident, and for withdrawing all financial support from the family after moving out of the house. The jury found the defendant guilty on all counts. The court accepted the verdict, rendered a judgment of conviction, and sentenced the defendant to a total effective sentence of forty-five years imprisonment, execution suspended after thirty-three years, with twenty-five years of probation. This appeal followed.
The defendant first claims that the trial court abused its discretion by permitting the state to introduce evidence regarding uncharged sexual misconduct involving A, the defendant's biological daughter. We are not persuaded.
The following additional facts and procedural history are relevant to our discussion. Prior to trial, the state filed a "notice of other evidence" detailing the expected testimony of A regarding three incidents of the defendant's prior uncharged sexual misconduct with respect to her. The defendant filed a motion in limine seeking to preclude A's testimony concerning uncharged sexual misconduct, and the court held a hearing outside the presence of the jury.
At the hearing, A testified that the defendant began abusing her when she was eleven years old, approximately four or five years after the sexual abuse of the victim.3 The first incident occurred while the defendant still was living in the family's house in Hartford. A was talking to the defendant in his bedroom when he started to tongue kiss her. The defendant removed her shirt and continued kissing her, but she was able to push him off of her. She put her shirt back on and left the bedroom. The second incident occurred approximately one week later. This time the defendant attempted to remove A's shirt and touch her breasts at the family home. A was able to get away from him because her sister-in-law arrived at the house and interrupted him. The third incident occurred after the defendant had moved out of the family home to his own apartment. Again, the defendant started by tongue kissing her, and, then, he removed her shirt. The defendant was trying to touch her vagina and breasts, despite A's attempts to push him off of her. During this incident, the defendant attempted to get undressed while he continued touching A, until she suggested that they go to the movies in order to get out of the house.
After hearing argument from both the state and the defendant, the court issued an oral decision on the motion in limine. The court ruled that A's testimony was admissible. The court found that there were a number of similarities between the uncharged conduct and the charged offense, namely, that A was approximately the same age as was the victim at the time of the alleged abuse, that the sisters looked very similar physically, that the defendant was in a position of authority over both girls, and that the pattern of the conduct that began with kissing and progressed to touching and disrobing was consistent. Finally, the court also concluded that the evidence was more probative than prejudicial.
Following the court's ruling on the uncharged misconduct, the jury heard A's testimony with regard to the three instances of sexual abuse perpetrated by the defendant. At the conclusion of her testimony, the court issued a limiting instruction to the jury. Also, in its final charge to the jury, the court specifically explained that
We begin by setting forth the applicable standard of review and legal principles that govern our analysis of the defendant's claim. (Internal quotation marks omitted.) State v. George A. , 308 Conn. 274, 295, 63 A.3d 918 (2013).
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State v. Angel M.
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State v. Angel M.
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