State v. Christiano

• Decision Date: 18 February 1993
• Docket Number: No. 10587,10587
• Citation: 29 Conn.App. 642,617 A.2d 470
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Charles CHRISTIANO, Sr.

Page 470

617 A.2d 470

29 Conn.App. 642

STATE of Connecticut v. Charles CHRISTIANO, Sr.

No. 10587.

Appellate Court of Connecticut.

Argued Sept. 15, 1992.

Decided Dec. 8, 1992.

Certification Granted limited to the

following issues Feb. 18, 1993.

Howard Lawrence, New Haven, with whom, on the brief, was Lawrence S. Dressler, Law Student Intern, for appellant (defendant).

John A. East III, Deputy Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Cara F. Eschuk, Deputy Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and FREDERICK A. FREEDMAN, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70. On appeal, the defendant claims that the trial court improperly (1) refused to admit evidence of the victim's prior sexual conduct, and (2) admitted the testimony of an expert witness. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In June of 1989, the victim went to the Wolcott police and made a statement accusing the defendant, her foster father, of sexually abusing her over a four year period. At the time the victim, who is mildly retarded, made the statement, she was twenty-one years old and continued to reside with the defendant's family with whom she had been placed when she was eight years old. In the statement, the victim claimed that during the four year period from September, 1985, until May, 1989, the defendant had forcibly and repeatedly raped her.

I

The defendant first claims that evidence of the victim's prior sexual conduct was admissible under General Statutes § 54-86f, commonly referred to as the rape shield statute. ¹ Specifically, the defendant argues that the victim's prior sexual conduct was so relevant and probative as to be essential to the defense, and that the trial court's refusal to admit such evidence violated the defendant's constitutional rights to confront witnesses against him and to present witnesses in his own behalf. We disagree.

The defendant did not testify at trial. He, therefore, neither expressly denied having sexual intercourse with the victim nor asserted a defense of consent. In an effort to rebut evidence presented by the prosecution to prove the elements of the crime charged, the defendant made a motion to admit evidence of the victim's prior sexual conduct. Pursuant to the rape shield statute, the trial court held an in camera hearing during which the defendant, his wife, his son, and his daughter testified as to the victim's prior sexual conduct with other members of her foster family and with the victim's two natural brothers. The defendant offered this evidence of prior sexual conduct to explain a statement made by him that had been allowed into evidence as an admission and to show consciousness of guilt. That statement, made to the defendant's wife prior to trial, was: "You forgave Norman [the defendant's son], why can't you forgive me?" The defendant's motion to strike the statement was denied. The defendant then sought to use evidence of the victim's prior sexual conduct to demonstrate that the statement pertained to the motivation of the victim to accuse the defendant of sexual assault. Without such an explanation, the defendant claims that the jury would believe that the defendant and his son both had engaged in sexual relations with the victim. The trial court determined that this evidence was not relevant and denied the defendant's motion to introduce the evidence to show motivation for a false accusation or to show the victim's alleged pattern of sexual behavior within family settings.

General Statutes § 54-86 allows evidence of prior sexual conduct of a sexual assault victim only if it satisfies one of the four exceptions enumerated within the statute. State v. Rothenberg, 195 Conn. 253, 259-60, 487 A.2d 545 (1985); State v. Williams, 20 Conn.App. 263, 268, 565 A.2d 1365 (1989). The defendant contends that the victim's prior sexual history was admissible under the fourth exception. General Statutes § 54-86f(4) provides that "no evidence of sexual conduct of the victim may be admissible unless such evidence is ... otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights." Evidence of prior sexual conduct is admissible under this statute "only if it fulfills the requirements of the statute that its probative value outweighs its prejudicial effect, within the context of the facts and circumstances of the case in which it arises." State v. Butler, 11 Conn.App. 673, 682, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d 938 (1987); State v. Cassidy, 3 Conn.App. 374, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).

If the evidence offered by the defendant is not relevant to a critical issue in the case, "the defendant's right to confront his accuser is not affected." State v. Daniels, 8 Conn.App. 190, 192, 512 A.2d 936 (1986); State v. Cassidy, supra, 3 Conn.App. at 384-85, 489 A.2d 386. It is a reasonable exercise of judicial discretion to exclude evidence "the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case." State v. Ruffin, 206 Conn. 678, 684, 539 A.2d 144 (1988).

The defendant claims that the victim's prior sexual history was relevant because her sexual behavior with other family members would have explained the defendant's statement by providing motivation for the victim to accuse the defendant falsely of sexual assault. The statement could have been viewed by the jury as an admission by the defendant that he had engaged in sexual relations with the victim. It does not, however, indicate whether the sexual relations were consensual or forcible. The defendant contends that after he made the statement the victim felt that she had no choice but to accuse the defendant falsely of forcing her to have sexual intercourse with him because of her prior sexual history. He claims that the victim could not admit to consensual intercourse because she would have been forced out of the defendant's household and that she could not deny sexual intercourse because she would not have been believed. The defendant further argues that if the jury knew of the victim's prior sexual behavior, the jury could have inferred that the victim made the accusations "in order to excuse her undignified predicament."

The defendant's statement, however, had nothing to do with the victim's accusations. There was no direct evidence to indicate that the statement was made prior to the time the victim went to the police to accuse the defendant. We can infer that the statement was made after the victim had gone to the police station in June, 1989, because it was made at a second meeting conducted by a priest in a church attended by all of the family members, the defendant, and the victim. The first meeting at the church was held on July 12, 1989. The victim could not have known in June, 1989, that the defendant would later make a statement that could be interpreted as an admission by him that intercourse had occurred. It is, therefore, difficult to conclude that the defendant's statement provided any motivation for the victim to accuse the defendant falsely.

In ruling on the defendant's motion to admit the prior sexual history of the victim, the trial court found that evidence of prior sexual conduct was not so relevant and material to a critical issue that excluding it would violate the defendant's constitutional rights. The proffered testimony of Norman that the victim engaged in consensual sexual intercourse with him is not relevant to the victim's motive in allegedly falsely accusing the defendant of forcible sexual intercourse. Norman's testimony would not have been probative of the defendant's innocence. Furthermore, the defendant had other alternatives to elicit evidence of motivation by the victim falsely to accuse the defendant. Not only did the defendant have other means available to him to present motivation evidence, but he also utilized those means. The defendant cross-examined the victim extensively as to her possible motives for accusing the defendant. ² The defendant also presented witnesses who testified that the victim had an ulterior motive. In light of the limited probative value of the evidence to the critical issue in this case, and the defendant's opportunity to present testimony suggesting the victim's motivation to make a false accusation, the exclusion of the victim's prior sexual history was a proper exercise of discretion by the trial court and did not prejudice the defendant or deny him his constitutional rights to confront the witnesses against him and to present witnesses in his own behalf.

The defendant also contends that admission of the victim's prior sexual history would have established that the victim engaged in a pattern of sexual behavior within family settings. The testimony about sexual behavior that the defendant sought to admit was too remote in time to be relevant to the issue of whether the defendant forcibly compelled the victim to engage in sexual intercourse. The alleged sexual encounters between the victim and her natural and foster brothers occurred at least five and as many as twelve years prior to the time the alleged sexual encounters began with the defendant. The encounters with her natural brothers occurred before the victim was eight years old and were nonconsensual. The encounters with her foster brothers occurred when the victim was twelve or thirteen and were alleged to have been consensual and infrequent. The remoteness in time and the young age of the victim when these events occurred negate their relevance. The victim's prior sexual...