State v. Cameron M.

• Decision Date: 20 November 2012
• Docket Number: SC 18829
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. CAMERON M.*

STATE OF CONNECTICUT

v.CAMERON M.^*

SC 18829

Supreme Court of Connecticut

Argued April 25, 2012

officially released November 20, 2012

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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, Harper and

Vertefeuille, Js.

William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and T. Stevens Bliss, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Deborah Mabbett, senior assistant state's attorney, for the appellee (state).

Opinion

NORCOTT, J. The defendant, Cameron M., appeals¹ from the judgment of the trial court, rendered after a jury trial, convicting him of one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and one count of risk of injury to a child in violation of § 53-21 (a) (2).² On appeal, the defendant claims that: (1) the trial court improperly admitted into evidence a video recording and transcript of a forensic interview of the victim (forensic interview) pursuant to the tender years exception to the hearsay rule; see Conn. Code Evid. § 8-10 (tender years exception);³ in violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); and (2) his multiple risk of injury convictions for the same act under both the situation and conduct prongs of § 53-21 (a) violate his constitutional protections against double jeopardy. Relying on the state's proffered alternate ground for affirmance, we conclude that the forensic interview was admissible substantively as a prior inconsistent statement under the rule set forth in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); see also Conn. Code Evid. § 8-5 (1) (Whelan rule);⁴ and that the defendant's confrontation rights under Crawford were not violated because the victim appeared and testified at trial, where she could have been subjected to cross-examination. We further conclude that the record is inadequate for review of the defendant's unpreserved double jeopardy claims. Accordingly, we affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The jury reasonably could have found that, over the course of several months between 2006 and 2007, the defendant engaged in oral sexual contact with the buttocks and genitals of the victim, his daughter, when she was approximately two and one-half to three years old. These acts occurred while the defendant was caring for the victim and her older sister, H, pursuant to a joint custody arrangement with their mother, S, who is the defendant's former wife. The defendant's acts came to light in April, 2007, after the victim, while being dressed by S, spontaneously reported to S that ''Daddy kisses me in my butt,'' and subsequently demonstrated on a doll that the defendant had kissed her between her legs. S, on the advice of Sherry D'Elia, a family therapist, reported the victim's allegations to the department of children and families (department).

Shortly thereafter, the department referred the victim to the Danbury Regional Child Advocacy Center (child advocacy center), to be interviewed and examined by a multidisciplinary investigative team, constituted pursuant to General Statutes § 17a-106a,⁵ consisting of professionals from mental health, law enforcement and the department working collaboratively to investigate andtreat cases of reported sexual abuse. Donna Meyer, the director of the teams program at the child advocacy center, conducted the forensic interview⁶ of the victim in the child advocacy center's interview room, which other team members, including Danielle Williams, a clinical psychologist employed by the child advocacy center, and Joseph Bukowski, a state police detective investigating the allegations against the defendant, watched from behind one-way glass.⁷ The forensic interview was recorded on video and transcribed for subsequent investigative and trial use.⁸

During the forensic interview, while discussing with Meyers where various relatives kiss her, the victim stated that the defendant ''kiss right on my butt,'' including on her ''butt cheeks.'' She then demonstrated using anatomically correct dolls that the defendant would kiss ''inside'' and ''put his [face] in my butt,'' indicating that the defendant would put his mouth between her legs and bite and kiss her genital area.⁹ After the forensic interview, the victim made similar statements during the first of her thirteen after care counseling sessions with Williams,¹⁰ reporting spontaneously¹¹ that the defendant ''kisses her butt.''

The state charged the defendant in a four count information with: (1) one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A); (2) one count of risk of injury to a child in violation of § 53-21 (a) (2) for having ''contact with the intimate parts of [the victim] . . . in a sexual and indecent manner likely to impair [her] health or morals''; (3) one count of risk of injury to a child in violation of § 53-21 (a) (2) for causing the victim to contact the defendant's genital area; and (4) one count of risk of injury to a child in violation of § 53-21 (a) (1), for ''[wilfully] and unlawfully causing [the victim] to be placed in such a situation that [her] morals . . . were likely to be impaired . . . .''

Prior to trial, the state filed notice of its intent to offer into evidence numerous out-of-court statements of the victim, namely, her disclosures to S and the forensic interview. With respect to the forensic interview, the state claimed its admissibility under two hearsay exceptions, namely, the tender years exception and the Whelan rule. The defendant objected, contending specifically that the forensic interview was inadmissible under the sixth amendment's confrontation clause under the tender years exception or the Whelan rule as applied consistently with Crawford v. Washington, supra, 541 U.S. 36, because it had been conducted in conjunction with a police investigation. The trial court then held a hearing on the state's motion, at which S and Meyer testified, but reserved decision on that motion until after the victim had testified before the jury out of concern that the victim might be retraumatized should she make an unexpected disclosure of abuseduring her testimony.

At trial, the victim, who was then six years old, testified that she remembered the interview taking place, but not its content,¹² and did not remember anything from when she was three years old, going to the defendant's house, wearing diapers or ''playing any games'' with the defendant. She further testified that she remembers the defendant hugging and kissing her on her head, but not any place else. She also testified that no one ''bites'' her and that the defendant is a ''nice daddy'' who has never been a ''bad daddy.''¹³ The defendant elected not to cross-examine the victim.

After the victim testified, the trial court concluded that her disclosures to S, and the forensic interview, were admissible under both Crawford and the tender years exception. In so concluding, the court relied on State v. Arroyo, 284 Conn. 597, 935 A.2d 975 (2007); see footnote 19 of this opinion; and specifically rejected the defendant's claim that the forensic interview was ''testimonial'' or ''made in preparation for a legal pro-ceeding.''¹⁴ The court further relied on State v. Simpson, 286 Conn. 634,945 A.2d 449 (2008), and determined that the victim was available for cross-examination under Crawford, notwithstanding her lack of memory in court. Thereafter, the forensic interview was published to the jury.

After the trial court denied the defendant's motion for a judgment of acquittal on the basis of insufficient evidence,¹⁵ the jury returned a verdict finding the defendant not guilty on counts one and three of the information, and guilty on counts two and four, namely, risk of injury to a child in violation of § 53-21 (a) (1) and (2). The trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of fifteen years imprisonment, execution suspended after five years, along with sexual offender registration and fifteen years of probation with special conditions. This appeal followed.

On appeal, the defendant claims that: (1) the trial court improperly admitted the forensic interview into evidence; and (2) his convictions on counts two and four of the information violate his constitutional...