State v. Daniel W., AC 39844
| Decision Date | 06 March 2018 |
| Docket Number | AC 39844 |
| Citation | 180 Conn.App. 76,182 A.3d 665 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. DANIEL W. |
Alice Osedach, senior assistant public defender, for the appellant (defendant).
Melissa Patterson, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, senior assistant state's attorney, for the appellee (state).
Prescott, Elgo and Norcott, Js.
The defendant, Daniel W., appeals from the judgment of conviction, rendered after a jury trial, of six counts of risk of injury to a child in violation of General Statutes § 53–21 (a) (2) ; five counts of sexual assault in the first degree in violation of General Statutes § 53a–70 (a) (2) ; one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a–70 (a) (2) and 53a–49 ; one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a) (1) (A) ; one count of risk of injury to a child in violation of General Statutes § 53–21 (a) (1) ; one count of conspiracy to commit risk of injury to a child in violation of General Statutes §§ 53–21 (a) (2) and 53a–48 ; and one count of attempt to commit risk of injury to a child in violation of General Statutes §§ 53–21 (a) (2) and 53a–49. On appeal, the defendant claims that (1) the trial court improperly admitted evidence of his prior misconduct; (2) the trial court improperly allowed a constancy of accusation witness to testify as an expert regarding delayed disclosure; and (3) the prosecutor committed improprieties that deprived the defendant of his right to a fair trial.1 We disagree and, accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following facts. A was seven years old when the defendant began sexually abusing her in 2004. A met the defendant one year earlier, when her brother was enrolled in one of his martial arts classes. A's older sister, J, brought their brother to and from the class.
When J became eighteen years old, she and the defendant, who was thirty-six years old at the time, began dating. Soon after, J moved out of her parents' house and began living with the defendant in an apartment in Rockville. She and the defendant married and eventually had three children together.
A often stayed at J's and the defendant's apartment on weekends. She enjoyed spending time with her sister, nieces and nephews, and the defendant's daughter from a previous marriage, M, who is close in age to A.2 A slept in a bed in M's room when she visited.
On one such weekend when A was seven, the defendant came into M's room at night, where M and A were sleeping, put his hand underneath A's pajama shirt, and began touching her chest. The defendant then put his hands down A's pajama pants and touched her vagina. A pretended to be asleep during this encounter. Thereafter, the defendant abused A in a similar manner on multiple occasions.
Over time, the defendant's abuse of A increased in severity. Specifically, the defendant would enter M's room at night, go over to A's bed, rub A's vagina, and penetrate it with his finger. A recalled that the defendant abused her in this way "[t]oo many times to count." On other occasions, the defendant put his penis in A's mouth, at times ejaculating. Furthermore, A believes that the defendant often photographed her naked body, as he sometimes came into her room and pulled her clothes off, after which she would see flashes of light.
During each instance of abuse, A kept her eyes closed and pretended to be asleep because she was afraid that the defendant, who had a bad temper and held a fourth-degree black belt, might hurt her. A was still able to identify the defendant as her abuser, however, because (1) his hands felt like a man's hands, and the defendant was the only adult male in the apartment, and (2) the defendant, who drank often, smelled of alcohol. Despite the abuse, A continued to visit J's and the defendant's apartment, as she loved spending time with her relatives and was determined not to let the defendant "ruin [her] fun with them."
On another occasion when A was eight years old, the defendant came into M's room and picked A up from her bed. M woke up and asked her father what he was doing. The defendant told her that he was bringing A to the bathroom. The defendant then carried A to his and J's bedroom, laid her down on their bed, and performed oral sex on her. Afterward, he carried A back to her bed.
Another time, the defendant, J and A were in the living room watching a movie when J began performing fellatio on the defendant. The defendant told J to ask A if she wanted to join. J then twice asked A if she wanted to participate. A declined and stared at the television. When the movie finished, A walked into M's room. No further abuse occurred on that night.
When A was ten years old, the defendant again picked A up from her bed and carried her to his bedroom. A awoke and heard J ask the defendant, "what if she wakes up?" to which the defendant replied, "don't worry, she shouldn't." The defendant then encouraged J to fondle A, and J put her hand up A's shirt and began touching her chest. Meanwhile, the defendant pulled down A's pants and began performing oral sex on her. Eventually, the defendant stopped and carried A back to her bed.
The last instance of abuse occurred when A was twelve years old. On that night, A fell asleep on the couch in the living room while watching television. At some point, A heard the defendant come home from work. Thereafter, A heard a "rustling" sound, which she later learned was a condom being opened. The defendant then climbed on top of A and attempted to penetrate her vagina with his penis. When he was unable to fully do so, he stopped and walked out of the room. Sometime later J came into the living room. A cried out to her, and revealed to her sister that the defendant had tried to molest her. J told A that she would yell at the defendant and that it would not happen again. J then walked out of the room and came back with the defendant, who was "freaking out, saying how he [was] going to go to jail ... [and] not going to see his kids anymore." J told him not to worry and that "[A was] not going to do that." After this incident A rarely, if ever, returned to J's and the defendant's apartment.
In 2012, the defendant lost his job and he, J, and their children moved into J's parents' house, where A also lived. While he was living in the family home, A often voiced her dislike of the defendant and kept her bedroom door locked.
In June, 2013, the defendant was arrested on charges stemming from a domestic violence incident during which he struck J in the face in front of their son. J's and A's father subsequently ejected the defendant from the house, and he did not return.
For years, A did not disclose the abuse because she feared that the news would break up her sister's family. Furthermore, A felt betrayed by J's response to her revelation that the defendant had tried to molest her.
In 2013, however, the defendant was arrested for sexually abusing another girl.3 When this happened, A's father asked her whether the defendant had also sexually abused her. A responded that the defendant had tried to put his hands down her pants, but refused to say anything more. When A's father suggested reporting the abuse to the police, she said that she did not want to because her classmates would find out. A's father, wanting to protect A, did not tell his wife or anyone else about the conversation.
On March 6, 2014, when A was seventeen years old, she attended a youth group meeting at her church. Suzy Williams, an adult mentor for the group and a social worker, often brought A to the meetings. After the meeting, A told Williams that it was the best day of A's life because the man who had sexually abused her for years had been arrested, and she would never have to see him again. A also told Williams that the abuser was her brother-in-law, who was married to her sister, J. Williams asked whether the defendant had had sex with A, and she responded that he had "went as far as he could go."
Williams, who was a mandated reporter of suspected child abuse, alerted the Department of Children and Families (department) and the police as to what A had told her. The defendant subsequently was arrested on charges arising from his abuse of A and tried before a jury.
At trial, the court admitted into evidence three letters written by the defendant to J.4 In the letters, the defendant, angry that J was not writing him back, threatened to reveal her role in A's abuse. Specifically, the defendant stated that J "not only [knew] what was going on but ... helped and supported in it," and that, on many nights, J made arrangements for the older children so that they were not in the house, presumably to facilitate the defendant's abuse of A. The defendant also wrote that the police wanted him "to confirm that [J] gave [him] a BJ in front of [A]."
The defendant was subsequently found guilty by the jury on all charges contained in the state's substitute information and sentenced to a total effective term of twenty-nine years incarceration followed by sixteen years of special parole. This appeal followed. Additional facts will be set forth as necessary.
The defendant first claims that the trial court improperly admitted into evidence uncharged misconduct of the defendant through C, who testified that the defendant sexually abused her. Specifically, the defendant argues that the uncharged misconduct was not sufficiently similar to the charged conduct, and that the prejudicial effect of its admission outweighed its probative value. We disagree.
The following additional facts and procedural history are relevant to the resolution of this claim. On July 30, 2015, the state filed a motion to join for trial three separate cases alleging sexual misconduct against the defendant...
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