State v. Cansler

• Decision Date: 14 September 1999
• Docket Number: (AC 17324)
• Citation: 54 Conn. App. 819,738 A.2d 1095
• Parties: STATE OF CONNECTICUT v. JACK CANSLER
• Court: Connecticut Court of Appeals

54 Conn. App. 819

738 A.2d 1095

STATE OF CONNECTICUT v. JACK CANSLER

(AC 17324)

Appellate Court of Connecticut.

Argued February 25, 1999.

Officially released September 14, 1999.

Lavery, Hennessy and Stoughton, Js. James Moreno, special public defender, for the appellant (defendant).

Michele C. Lukban, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and George Ferko, assistant state's attorney, for the appellee (state).

Opinion

LAVERY, J.

The defendant, Jack Cansler, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2)¹ and risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21.² The defendant claims that the trial court improperly (1) allowed the state to present constancy of accusation evidence, (2) failed to issue a curative instruction concerning an alleged act of prosecutorial misconduct, (3) failed to grant his motion to strike the victim's testimony, (4) instructed the jury on the standard for reasonable doubt and (5) failed to find that there was insufficient evidence to sustain the conviction. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On June 25, 1995, the victim's parents took her and her brother to the apartment of the defendant and his wife, Iris Cansler. Iris Cansler, a second cousin of the victim's father, had agreed to babysit the victim and her brother while their parents attended religious services. The victim was five years of age at the time. The victim, who was six years of age at the time of trial, testified that on June 25, 1995, "Jack" touched her "totico"³ with his tongue. The victim also testified that on the evening of June 25, 1995, when her mother was bathing her, she informed her of the incident and that the perpetrator was named Jack.

The victim's mother testified that, aside from the defendant, she was not acquainted with anyone named Jack. Moreover, at the time of the incident, she was unaware of any other person named Jack who would have had access to the victim. Although the victim was not able to identify the defendant in open court, her mother testified that the defendant had altered his appearance since the date of the incident. The defendant's wife testified that the victim and her brother stayed at the apartment on June 25, 1995, her husband was in the apartment and no one else named Jack visited the apartment on that date.

The state filed an information charging the defendant with one count of sexual assault in the first degree and one count of risk of injury to a child. The defendant entered a plea of not guilty and elected a trial by jury. On March 20, 1997, the jury found the defendant guilty on both counts. On March 24, 1997, the defendant filed motions for judgment of acquittal, for a new trial and in arrest of judgment, which were denied by the trial court. On May 2, 1997, the trial court sentenced the defendant to a total effective sentence of fifteen years imprisonment, execution suspended after ten years, with four years of probation, and this appeal followed.

I

The defendant first claims that the trial court improperly allowed the state to admit constancy of accusation evidence in violation of his right to confrontation and due process under the federal constitution and article first, § 8, of our state constitution.⁴ We do not agree.

At trial, on direct examination, the victim testified that on June 25, 1995, Jack touched her "totico" with his tongue. She also testified that later that same day, while her mother was bathing her, she informed her about the incident and that the perpetrator was named Jack. The trial court afforded the defendant the opportunity to cross-examine the victim, but he declined.⁵ On direct examination, the state asked the victim's mother what happened when she bathed her daughter on the evening of June 25, 1995. Defense counsel objected, and the trial court excused the jury.

Outside the presence of the jury, the state conducted a voir dire of the victim's mother. After allowing argument by counsel and reviewing relevant precedent, the trial court ruled that the victim's mother could testify that while she was bathing her daughter, the victim had reported that she was experiencing pain in her vaginal area and that Jack had caused this pain. The court sustained defense counsel's objection regarding the admission of testimony that the cause of the victim's pain was the use of the defendant's tongue. The court stated that the victim's mother could not testify as to any additional details that were related by the victim. In the presence of the jury, the victim's mother testified that, while she was bathing her daughter on the evening of June 25, 1995, her daughter informed her that she was experiencing pain in her vaginal area and that Jack had caused this pain.

It is well settled that the doctrine of constancy of accusation does not violate an accused's constitutional rights to confrontation; State v. Troupe, 237 Conn. 284, 290-91, 677 A.2d 917 (1996); or to due process. State v. Villanueva, 44 Conn. App. 457, 460, 689 A.2d 1141, cert. denied, 240 Conn. 930, 693 A.2d 302 (1997). "[A] person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim's complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim's complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator.... Thus, such evidence is admissible only to corroborate the victim's testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant." State v. Troupe, supra, 304-305. "[C]onstancy of accusation evidence is not admissible unless the victim has testified, and is subject to cross-examination, concerning the crime and the identity of the person or persons to whom the victim has reported the crime...." Id., 293. "[W]hether evidence is admissible under the constancy of accusation doctrine is an evidentiary question that will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996).

In the present case, the victim testified as to the facts of the incident, that the perpetrator was named Jack and that she had informed her mother of the incident when her mother was bathing her. The defendant was afforded the opportunity to cross-examine the victim but declined to do so. The defendant neither claims, nor does the record disclose, that the trial court placed any limitation on his ability to cross-examine the victim. The victim's mother testified only that, while she was bathing her daughter, the victim reported the incident and informed her that the perpetrator was named Jack. The victim's mother's testimony regarding the identity of the alleged perpetrator was necessary to associate the victim's complaint with the pending charge. After applying the principles set forth in Troupe to the record before us, we conclude that the trial court did not abuse its discretion by admitting this evidence under the constancy of accusation doctrine.

II

The defendant next claims that the state committed prosecutorial misconduct when, in the presence of the jury, it characterized the proposed testimony of a police officer as containing evidence of an admission of guilt by the defendant in violation of his due process right to a fair trial under the federal constitution and article first, § 8, of our state constitution.⁶ He further claims that the trial court improperly denied his request for a curative instruction. We do not agree with either of the defendant's claims.

Detective Laura J. Buyak, a member of the youth and family services department of the Hartford police department, investigated the victim's complaint, interviewed the defendant and informed him of the victim's allegations. When the state asked Buyak whether the defendant had admitted or denied those allegations, defense counsel objected, claiming that this question violated the defendant's right to remain silent. The state responded that Buyak's proposed testimony was admissible as either an admission by the defendant or an admission by silence. The trial court then excused the jury.

Outside the presence of the jury, Buyak stated that the defendant had responded that the victim's allegations were unfounded. After argument by counsel, the trial court sustained defense counsel's objection. Defense counsel argued that the jury was left with an impression that there was an admission by silence, which was highly prejudicial to the defendant, and that a mistrial or curative instruction was necessary. The trial court denied the defendant's request, stating that it would instruct the jury to consider only the evidence presented in reaching its verdict, and that the evidence was limited to the testimony of witnesses and any items entered as full exhibits. Since Buyak had not responded to the state's question in the presence of the jury, there was no testimony for the jury to consider. Defense counsel conceded that Buyak had not responded to the state's question in the presence of the jury. When the jury returned, the state withdrew its question and asked no further questions of Buyak. On cross-examination, defense counsel asked Buyak what, if...