State v. Courtney G.

• Decision Date: 21 June 2021
• Docket Number: SC 20290
• Citation: State v. Courtney G., 339 Conn. 328, 260 A.3d 1152 (Conn. 2021)
• Parties: STATE of Connecticut v. COURTNEY G.
• Court: Connecticut Supreme Court

339 Conn. 328

260 A.3d 1152

STATE of Connecticut

v.COURTNEY G.^*

SC 20290

Supreme Court of Connecticut.

Argued October 22, 2020

Officially released^**June 21, 2021

Alice Osedach, senior assistant public defender, for the appellant(defendant).

Jennifer F. Miller, Atlanta, GA, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, Palos Hills, IL, state's attorney, and Maxine Wilensky, Meriden, CT, senior assistant state's attorney, for the appellee(state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Ecker and Keller, Js.

ECKER, J.

Following a jury trial, the defendant, Courtney G., was convicted of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1) and two counts of 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 improperly admitted evidence of the victim's out-of-court demeanor, and (2)the prosecutor made improper remarks during closing argument and rebuttal in violation of his sixth amendment right to confrontation and his fourteenth amendment right to a fair trial.We affirm the judgment of conviction.

The jury reasonably could have found the following facts.The victim, S, was born in October, 1997.When S was four years old, her mother, N, began dating the defendant.By 2005, the defendant, N, and S lived together in an apartment on Poplar Street in New Haven.One day, when S was eight years old, she was home alone with the defendant while her mother was at work.S took a shower and then went into her bedroom to get dressed.S was wearing a tank top and underwear when the defendant approached her and asked her to come into the living room so he could apply lotion to her body.The defendant took S's hand and brought her into the living room, where he removed her tank top and applied lotion to her back, arms, and chest.The defendant then pushed S down onto the couch, removed her underwear, pushed her legs open, and licked her vagina.S was scared, and she tried to move the defendant's head away but was unable to do so.When the defendant was done, he told S not to say anything because her mother"would kill him."The defendant sexually assaulted S in this manner more than once when they lived on Poplar Street.

When S was in seventh or eighth grade, she and her family, which included N, the defendant, and her two younger siblings, moved to an apartment on Read Street in New Haven.When S lived on Read Street, the defendant would enter S's bedroom and ask to see her naked.On more than one occasion, the defendant picked S up, brought her to his bedroom, put her on the bed, and held her down while he licked her vagina.

In March, 2015, when S was seventeen years old, she and her family lived in an apartment on Winchester Avenue in New Haven.S's bedroom was in the dining room, and a black curtain was hung in the doorway to separate the dining room from the kitchen.On March 8, 2015, S and her cousin, T, who was one year older than S, were getting ready to go out.T showered and then went into the dining room to dress while S showered.T was naked, except for her bra, and she sat on S's bed to put on her underwear.At this point, the defendant, who was in the kitchen, asked T if he could ask her a question.T responded in the affirmative, and the defendant told T she had to "promise that [she] wouldn't tell anybody about what he's about to ask."The defendant then asked T if she"shaved."T responded "no ...."The defendant asked T if he"can ... see."T replied "[n]o. That's not appropriate."

After T was dressed, she went into the kitchen and noticed that she"could see straight through" the black curtain into the dining room.In light of T's state of undress and the ability to "see pretty much everything" in the dining room from the kitchen, T realized that the defendant had been referring to her vagina when he asked her if she shaved.Upset, T went into the bathroom to report the defendant's question to S.When S heard what the defendant had asked T, S began to cry.

That night, T made a series of phone calls to her mother, her aunt, and N.After receiving T's phone call, N was shocked and angry.N called the defendant at work and informed him that their relationship was over and that he should "come get [his] stuff."The defendant asked N, "why, [is it] because [he] asked [T] if she was a shaver?"Shortly after speaking to N, the defendant texted S and asked her if he was "a dead man walking."

The next day, there was a family meeting at which S, N, T, S's grandmother, and S's aunts were present.At the meeting, S disclosed that the defendant also had asked her if she shaved her vagina.S also revealed that the defendant had touched her breasts.S was "too scared" to disclose any further details of the defendant's sexual abuse because this was her "first time talking about it" and "everybody was staring at [her] ...."S and the others were crying during the meeting.A few days later, S and her mother reported the sexual abuse to the police.

The defendant was arrested and charged with three counts of sexual assault in the first degree in violation of § 53a-70 (a)(1) and three counts of risk of injury to a child in violation of § 53-21 (a)(1).Following a jury trial, at which the defendant testified, the jury found the defendant not guilty of one count of sexual assault in the first degree and one count of risk of injury to a child but found the defendant guilty of the remaining charges.¹The trial court sentenced the defendant to a total effective sentence of twenty years of imprisonment, execution suspended after fifteen years, followed by fifteen years of probation.This appeal followed.²

I

The defendant first claims that the trial court improperly admitted N's testimony that S was crying during the March, 2015 family meeting because evidence of S's demeanor at the meeting was irrelevant and, even if relevant, more prejudicial than probative.The following additional facts and procedural history are relevant to our resolution of the defendant's claim.

Prior to trial, the defendant filed a motion in limine to preclude the state"from offering any ‘demeanor evidence’ unless the defendant opens the door by challenging [S's] testimony or credibility regarding any out-of-court statements or delayed reporting."(Footnote omitted.)Specifically, the defendant sought to exclude "testimony from witnesses concerning their observations of [S's] emotional state at the time of the disclosure, for example, whether [S] was crying, shaking, trembling, scared, or other similar information."The defendant filed a memorandum of law in support of his motion, in which he argued that, pursuant to State v. Burney , 288 Conn. 548, 954 A.2d 793(2008), andState v. Daniel W. E. , 322 Conn. 593, 142 A.3d 265(2016), evidence of a complainant's demeanor at the time of a delayed disclosure of sexual assault is inadmissible "unless the defendant opens the door by challenging the complainant's testimony or credibility regarding any out-of-court statements or delayed reporting.The demeanor testimony has minimal, if any, probative value unless the defendant challenges the complainant's credibility regarding any out-of-court statements or delayed reporting."The defendant further argued that evidence of S's demeanor at the time of her disclosure would be unduly prejudicial because it "is likely to enflame the emotions, passions and sympathy of the jury."

At trial, S testified during the state's case-in-chief that she first reported the defendant's sexual abuse at the family meeting in March, 2015, when she told her mother, grandmother, aunts, and cousin that the defendant had touched her breasts.S further testified that, at the time of her disclosure, she, along with everyone else present at the meeting, was crying.Defense counsel did not object to or move to strike S's testimony regarding her demeanor at the time of her disclosure.Additionally, defense counsel did not cross-examine S and, therefore, did not challenge her credibility on the basis of her delayed disclosure of the abuse.

On the second day of the defendant's trial, the state presented the testimony of S's mother, N.In light of the defendant's pending motion in limine, the state made an offer of proof outside the presence of the jury regarding N's testimony of S's demeanor at the family meeting.During the offer of proof, N testified that she, S, and everybody else at the family meeting had been crying.Following the offer of proof, defense counsel objected to the admission of N's demeanor testimony, pointing out that he had not challenged S's credibility, and, "[a]s a result, this highly prejudicial, highly inflammatory testimony simply is not probative of anything at this point" pursuant to Burney and Daniel W. E.The state disagreed, arguing that nothing in Burney or Daniel W. E. precludes a witness from testifying about his or her observations.The trial court agreed with the state that N was not a constancy of accusation witness but, rather, a lay witness who was "entitled to testify to what she observed if it's ... relevant evidence."The trial court found that N's proffered testimony was "relevant evidence for th[e] jury to consider" and that the probative value of N's testimony outweighed its prejudicial effect.Therefore, the trial court overruled the defense counsel's objection and permitted N to testify as to her observation of S's demeanor, but cautioned that it would not permit N to testify as to her "observations of other people in the room ...."Thereafter, the prosecutor asked N in front of the jury: "What did you notice about [S's] emotional state during the [family meeting]?"N responded that "[s]he was crying."

At the defendant's sentencing, defense counsel moved for a new trial, arguing, among other things, that "the court's evidentiary ruling concerning the admission of evidence for [S's]...