State v. Dearing

• Decision Date: 31 January 2012
• Docket Number: No. 33015.,33015.
• Citation: 34 A.3d 1031,133 Conn.App. 332
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert DEARING.

133 Conn.App. 332

34 A.3d 1031

STATE of Connecticut

v.Robert DEARING.

No. 33015.

Appellate Court of Connecticut.

Argued Oct. 27, 2011.Decided Jan. 31, 2012.

Auden Grogins, special public defender, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Amy Sedensky, senior assistant state's attorney, for the appellee (state).

LAVINE, BEAR and BISHOP, Js.

BEAR, J.

The defendant, Robert Dearing, 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) and risk of injury to a child in violation of General Statutes § 53–21(a)(2). On appeal, the defendant claims that (1) the court abused its discretion and violated his constitutional rights by finding that the victim was competent to testify, (2) the court abused its discretion in allowing the state to pose a hypothetical question to its expert witness because the question went to the ultimate issue in the case and (3) the prosecutor committed improprieties during trial and closing argument. We affirm the judgment of conviction.

The following facts, which reasonably could have been found by the jury, and procedural history are relevant to our analysis. The defendant was born in 1978. The victim ¹ was born in 2000; she suffers from pervasive developmental disorder not otherwise specified.² The parents of the victim, who have lived together for between eleven and thirteen years but who are not married, and the defendant were long-time intimate friends, and the victim's father frequently went to the defendant's home on weekends to work on automobiles with the defendant.³ The victim referred to the defendant as Uncle Rob, although there was no familial relationship between them. Often, the victim accompanied her father to the home of the defendant, where she sat in the living room watching television while her father and the defendant worked on automobiles in the garage, which adjoined the living room. The father frequently would go to an auto parts store or to a convenience store while the defendant ostensibly remained in the garage working on the automobiles, and the father would leave the victim at the defendant's home while he drove to either store, which sometimes took more than one half hour.

On a weekend day, early in November, 2008, the victim and her father again were at the defendant's home, and the father left to go to a convenience store to purchase drinks. When the father returned, the defendant was in the living room sitting on the couch with the victim. The defendant proceeded to tell the father that the victim had had “an accident” and that he had taken care of it. The victim appeared to be somewhat upset. The father recalled that the victim had not soiled herself since she was three or four years old and that she only needed help on occasion with her belt or her buttons when using the bathroom.

On Friday, November 14, 2008, the victim's mother was preparing the victim for a nap when the mother discovered the victim touching her genitals. After asking the victim some questions, the mother became concerned. On Monday, the mother contacted the victim's clinician, Natasha Jackson, who met with the mother on Tuesday and urged her to tell the father about her conversation with the victim. Later that night, the mother told the father that the victim had made allegations of sexual abuse against the defendant. On Thursday, November 20, 2008, the father and the mother took the victim to the Waterbury police department to file a complaint. The family spoke with a police officer, who gave them a card containing the names of two detectives and said that one of those detectives would contact them. After being contacted via telephone by Officer Cathleen Knapp, the mother and Knapp met at the family home on the day before Thanksgiving. An employee from the department of children and families (department), Sheila Negron, accompanied Knapp to that meeting. Knapp learned that when the mother was putting the victim down for a nap, the victim revealed that the defendant had told the victim that her private parts were dirty and needed to be cleaned and that the defendant then “cleaned” her private parts using his private parts. The mother told Knapp that the victim pointed to her vaginal and anal areas when explaining what the defendant had done. After speaking with the mother, Knapp and Negron also spoke with the victim, who reported to them that the defendant had done a “no-no” and that after telling her that she was dirty and that he had to clean her, the defendant then “cleaned” her private parts using his private parts.

Approximately one week later, on December 1, 2008, the victim was taken to Wellpath, Inc.,⁴ where Jessica Alejandro, a clinical child interview specialist, conducted a forensic interview. The interview was observed by Knapp and Negron. During the interview, the victim stated that the defendant pulls her pants down and always cleans her privates with his privates. Further, using anatomical dolls, the victim demonstrated that the defendant cleans her by putting his penis into her vagina and into her anus. She also stated that he cleans her on the inside of her private not the outside. The victim commented, while looking at a drawing of a male, that the defendant's private looks different from the drawing in that his private is big. She told Alejandro that the defendant did these things in the bathroom and while she was lying on the couch. She also stated that the defendant “didn't want [her] to look at his privates.” When asked how it felt when the defendant cleaned her privates, the victim stated that when he cleaned the front of her private it felt okay, but when he cleaned her butt, it hurt. She also described that “pee” comes out of the defendant's penis when he cleans her and that he wipes up the “pee” with a sponge. The victim further stated that no one else has ever tried to clean her privates in the same manner as the defendant. ⁵

On December 3, 2008, the police interviewed the defendant, advised him of his rights, applied for and were issued an arrest warrant, and ultimately arrested the defendant that same night. The defendant was charged with sexual assault in the first degree and risk of injury to a child. He was tried before a jury, found guilty on both counts and sentenced to a total effective term of thirty years incarceration, execution suspended after twenty years, with fifteen years the mandatory minimum, and twenty years probation. This appeal followed. Additional facts will be set forth where necessary.

I

On appeal, the defendant first claims that the court abused its discretion in finding that the victim was competent to testify. He further claims that the court, by refusing to find that the victim was not competent to testify, violated his due process right to confront the witness against him and his sixth amendment right to present a defense. He argues that the victim largely was unable to respond during both direct and cross-examination and that she was “unable to narrate the facts of her complaint or [to] distinguish between telling the truth and telling a lie.” He contends that her inability to narrate and comprehend the facts is demonstrated by her repeated contradictory testimony, her repeated failure to give verbal responses to questions and her inability to make an in-court identification of the defendant after three attempts. The defendant further contends that the victim's inability to distinguish between telling the truth and telling a lie is evinced, in part, by her specific answer to the question “what happens if you tell a lie?” to which she responded, “[i]t will be—it I'll be true.” ⁶ We are not persuaded.

General Statutes § 54–86h provides: “No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.” (Emphasis added.) Because “[o]ur courts have ... [the] authority to exclude evidence that may be more prejudicial than probative [however] ... if a child sexual assault victim could only babble or could present no useful evidence, [his or her] testimony could hardly be deemed relevant or probative.” (Citations omitted.) State v. James, 211 Conn. 555, 564–65, 560 A.2d 426 (1989); see also State v. Bronson, 258 Conn. 42, 53–54, 779 A.2d 95 (2001). Few people, however, inherently are incapable of testifying in some useful manner. State v. James, supra, at 563, 560 A.2d 426. “Many witnesses, not only children, have difficulty in remembering events, understanding questions, and expressing themselves clearly, disabilities that often raise problems for the cross-examiner.... Inconsistencies in testimony and witness credibility [however] are matters that are within the exclusive purview of the jury to resolve at trial.” (Citation omitted; internal quotation marks omitted.) State v. Aponte, 249 Conn. 735, 756, 738 A.2d 117 (1999), citing State v. James, supra, at 564–65, 560 A.2d 426, and State v. Smith, 46 Conn.App. 600, 608, 700 A.2d 91, cert. denied, 243 Conn. 935, 702 A.2d 642 (1997).

In James, “[o]ur Supreme Court, reject[ed] a challenge to the constitutionality of § 54–86h [and] discussed with approval ‘the modern trend [toward] the treatment of competency as simply one aspect of the credibility of a witness.’ State v. James, [supra, 211 Conn. at 563, 560 A.2d 426]. The court found favorable similarities between § 54–86h and evidentiary provisions in federal law [specifically rule 601 of the Federal Rules of Evidence] ⁷ as well as ‘the philosophy that few persons are inherently incapable of testifying in a useful manner.’ ... The court...