State v. Annulli

• Citation: 23 A.3d 808,130 Conn.App. 571
• Decision Date: 09 August 2011
• Docket Number: No. 32272.,32272.
• Parties: STATE of Connecticutv.Richard ANNULLI.
• Court: Appellate Court of Connecticut

130 Conn.App. 571

23 A.3d 808

STATE of Connecticut

v.Richard ANNULLI.

No. 32272.

Appellate Court of Connecticut.

Argued May 19, 2011.Decided Aug. 9, 2011.

Mark G. Ouellette, for the appellant (defendant).John A. East III, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, former state's attorney, and Cynthia S. Serafini, senior assistant state's attorney, for the appellee (state).BISHOP, ROBINSON and PETERS, Js.ROBINSON, J.

The defendant, Richard Annulli, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(1)(B), one count of attempt to commit sexual assault in the fourth degree in violation of General Statutes §§ 53a–49 and 53a–73a (a)(1)(B), and three counts of risk of injury to a child in violation of General Statutes § 53–21(a).¹ On appeal, the defendant claims that (1) the trial court improperly excluded certain impeachment evidence in violation of § 6–6(b)(1) of the Connecticut Code of Evidence, and his rights to confrontation and to present a defense under the sixth amendment to the United States constitution, and (2) the evidence was insufficient to support his conviction of one count of sexual assault in the fourth degree and one count of risk of injury to a child. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. One day in the fall of 2006, the victim, A, was visiting with her friend, K, at K's home in Oakville when the defendant, who was the victim's neighbor at the time, stopped his vehicle in front of K's home and requested that the victim come over to his vehicle.² The victim walked over to the passenger's side of the vehicle and leaned on the vehicle by the open window. While the victim was leaning on the vehicle, the defendant grabbed her arm, pulled her body halfway into the vehicle and attempted to kiss her. When the victim refused to kiss the defendant, he attempted to place her hand on his penis ³ and told her not to tell anyone about the incident. At this point, K, who had observed the entire incident, ran over to the vehicle and began to pull the victim free. When the victim finally pulled free of the defendant, the victim and K ran into K's home and locked the door.

On another occasion, in the summer of 2007, the victim went to the defendant's house to summon her brother, B, home.⁴ While the victim was waiting for B, she went into the defendant's garage and sat down. The defendant, who was working in the garage at the time, walked over to the victim and began touching her vagina through her clothing. As the defendant groped the victim, he told her, referring to her vagina, that “it was mine” and “not to let anybody else touch it.” He also warned the victim not to disclose the abuse. Thereafter, the victim left and returned to her home.

Later during the summer of 2007, the victim again went over to the defendant's house. While the victim was in the defendant's kitchen, he tried to put his hand on the victim's vagina but she walked away. At some point after the victim initially had walked away from the defendant, he touched her vagina through her clothing. The victim then left the house.

On January 31, 2008, the victim telephoned the defendant's house from her school in an effort to contact the defendant's son. The defendant answered the telephone and informed the victim that his son was not at home. The victim explained that she needed a ride to her mother's workplace and the defendant offered to drive her. The victim accepted the defendant's offer and he picked her up from school. During the ride, the defendant placed his hands between the victim's crossed legs and tried pushing them apart. The victim moved away from the defendant, pressed herself against the passenger side door and pretended to be sending text messages from her cellular telephone. When they arrived at the workplace of the victim's mother, the defendant told the victim not to tell anyone about the incident.

The next day, on February 1, 2008, the victim disclosed the incidents of abuse to her mother and Detective Lisa Scannell of the Watertown police department. After conducting an investigation, the police obtained a warrant and arrested the defendant. The defendant was charged in a substitute information with two counts of sexual assault in the fourth degree,⁵ one count of attempt to commit sexual assault in the fourth degree, three counts of risk of injury to a child ⁶ and one count of attempt to commit kidnapping in the second degree in violation of General Statutes § § 53a–49 and 53a–94 (a).

On February 22, 2010, the evidentiary portion of the defendant's trial commenced. On February 24, 2010, the trial court granted the defendant's motion for a judgment of acquittal as to the charge of attempt to commit kidnapping in the second degree. On February 26, 2010, the jury returned guilty verdicts as to the remaining six charges. On May 7, 2010, the court sentenced the defendant to a total effective term of ten years incarceration, execution suspended after five years, followed by fifteen years probation, which included a number of special conditions. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly excluded certain impeachment evidence in violation of § 6–6(b)(1) of the Connecticut Code of Evidence, and his rights to confrontation and to present a defense under the sixth amendment to the United States constitution. Specifically, the defendant argues that the court abused its discretion when it precluded defense counsel from cross-examining the victim about an unrelated incident in which she allegedly lied to the police and altered evidence. We are not persuaded.

The following additional facts are relevant to the defendant's first claim. During cross-examination, defense counsel questioned the victim about her honesty and inquired as to whether she ever lied to her friends during Internet conversations. The state objected to this line of inquiry and requested a discussion outside the presence of the jury. The court excused the jury and heard arguments from both parties.

Outside the presence of the jury, defense counsel claimed that he had evidence that showed that the victim had “intentionally altered e-mail documents and [had] lied [to the police] in an attempt to have another person arrested for threatening her.” In response, the state told the court that there was “some discrepancy” as to what had been said online and, consequently, the evidence was unclear as to whether the victim had lied. In response, defense counsel maintained that the victim had “intentionally chang[ed] the course of a conversation and then [lied] to the police ... [about] what [had] happened.” Following the state's request, defense counsel made an offer of proof.⁷

After considering the offer of proof and additional arguments by the parties, the court determined that the evidence failed to establish that the victim had lied to the police, and, therefore, defense counsel could not make this inquiry. Even though this line of inquiry was not permitted, the court indicated that defense counsel could pursue other lines of questioning concerning the victim's credibility.

After the jury was returned to the courtroom, defense counsel resumed cross-examination of the victim, asking her if she was involved in an incident with a classmate involving the exchange of e-mail messages. The state objected on the ground that the question was beyond the scope of direct examination. Defense counsel argued that he was “establishing a basis ... as to credibility regarding [the victim] and her dealings with another witness.” After speaking with counsel off the record, the court again excused the jury.

Outside the presence of the jury, the court permitted defense counsel to make an offer of proof by questioning the victim. After the victim admitted to being involved in an incident with a classmate involving the exchange of e-mail messages, defense counsel asked the victim repeatedly if she had changed or altered the e-mails that she had provided to the police in connection with the incident. In response, the victim stated that she had copied and pasted the e-mails into a Word document and provided this information to the police. She further testified that the police were aware that the information that she had provided to them had been copied and pasted from the original, and that she had not been arrested for changing the e-mails or filing a false statement to the police. At the conclusion of defense counsel's questioning, however, the following exchange occurred:

“[Defense Counsel]: When you ... were at the police station, the bottom line and end result was that it was determined that the e-mail you claimed you received you had changed, correct?

“[The Victim]: Yes.

“[Defense Counsel]: So you lied to the police because you told them you had been threatened and it really wasn't true, correct?

“[The Victim]: Yes.”

On cross-examination, the state inquired as to what the victim had meant when she stated on direct examination that she had copied and pasted the e-mails. The victim responded that she had “highlighted [the e-mails] from MySpace and ... copied [them] and went to Word Pad and pasted [them].” Upon further examination, the victim admitted that she had deleted some of the information contained in the original e-mails, but maintained that she had not altered the e-mails in such a manner as to contain a threat that was not in the original. At the conclusion of the state's cross-examination, the following exchange occurred:

“[The Prosecutor]: And so as you sit here today, did you lie to the police about the threat that you got from [a classmate]?

“[The Victim]: No.

“[The Prosecutor]: Was it a lie [that a classmate] had threatened you?

“[The Victim]: No.”

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