State v. DeJesus

• Decision Date: 30 August 2005
• Docket Number: No. 25589.,25589.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Carlos DeJESUS.

880 A.2d 910

91 Conn.App. 47

STATE of Connecticut v. Carlos DeJESUS.

No. 25589.

Appellate Court of Connecticut.

Argued March 22, 2005.

Decided August 30, 2005.

Darcy McGraw, special public defender, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Vicki Melchiorre, senior assistant state's attorney, for the appellee (state).

LAVERY, C.J., and SCHALLER and PETERS, Js.

SCHALLER, J.

The defendant, Carlos DeJesus, 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 (a)(1) and two counts of kidnapping in the first degree in violation of General Statutes ? 53a-92 (a)(2)(A). On appeal, the defendant claims that the trial court improperly (1) admitted uncharged misconduct evidence, (2) denied him due process of law, (3) refused to conduct an in camera review of the victim's medical records and (4) refused to suppress the defendant's statements made during a police interview. The defendant further claims that ? 53a-92 (a)(2)(A) is unconstitutionally vague as applied to the facts supporting his conviction of kidnapping in the first degree. We agree with the defendant with respect to his last claim and, accordingly, reverse the conviction for kidnapping in the first degree as charged in count four of the information. We affirm the judgment of the trial court in all other respects.

The jury reasonably could have found the following facts. At all pertinent times, the defendant was employed by a supermarket chain as a customer service manager. As part of his employment duties, the defendant was responsible for hiring individuals to work at the store. In August, 2000, he hired the nineteen year old victim¹ and she eventually assumed the duties of a bagger. She had attended special education classes while in high school and had difficulty learning new tasks. Other witnesses, including the victim's father and a police officer, also testified that the victim had limited mental abilities. The victim's immediate supervisor was someone other than the defendant, but the defendant often managed the entire store and was aware of the victim's special needs.

The defendant sexually assaulted the victim on two separate occasions in 2000. The first assault occurred when the defendant instructed the victim to go to the payroll room, which is located in the upper level of the store, to sit in a chair, to close her eyes and to open her mouth. The defendant then ordered the victim to "suck [on] his finger." After she had done so, the defendant forced her to perform oral sex on him.

The second sexual assault committed by the defendant on the victim also occurred in the upper level of the store. After telling the victim to go to a room near his office, the defendant entered and proceeded to remove the victim's pants and underwear and had her sit on a desk. The victim told the defendant that she did not want to do that, but he ignored her protests and remained silent. The defendant penetrated the victim's vagina with his penis, causing her a great deal of discomfort. She was able to move away from him, replace her clothes and leave the room. The defendant did not say anything, but looked angry as she left.² The victim subsequently ended her employment at the supermarket, but continued to shop at that particular location with her family. At some point in 2001, the defendant approached the victim and her father while they were shopping. In speaking with her father, the defendant indicated that the victim had been a "good worker" and that he wanted her to resume her employment at the supermarket. The victim's father, who at that time was unaware that the defendant had sexually abused his daughter, encouraged her to return to work. She agreed and was required to attend an orientation session prior to resuming her employment.

Toward the end of June, 2001, the victim spoke with the defendant at the supermarket. He again instructed her to wait in an empty room located in the store's upper level. The defendant entered the room and kissed the victim on the mouth. He instructed her to sit on a chair and reached inside of her shirt, placing his hand on her stomach. He proceeded to remove her pants and underwear, locked his hands behind her head, straddled the chair she was sitting on and forced her to perform oral sex on him. That lasted for a few minutes, after which the defendant penetrated her vagina with his finger.

The victim reported this incident to the police department, which commenced an investigation. The defendant, in an interview at the police station, initially denied having any sexual contact with the victim, but then recanted and stated that any sexual activity between them was consensual. The defendant subsequently was charged, tried and convicted on all counts. The court sentenced the defendant to an effective term of incarceration of twenty years, suspended after sixteen, and ten years special probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted uncharged misconduct evidence. Specifically, the defendant argues that the uncharged misconduct evidence was admitted improperly to prove intent, that the uncharged misconduct was insufficient to demonstrate a common plan or scheme, that the court failed to issue a limiting instruction concerning the evidence of uncharged misconduct, despite having stated that it would do so, and that the prejudicial impact of the uncharged misconduct evidence outweighed its probative value. We disagree with all of the defendant's arguments.

The following additional facts are necessary for our resolution of the defendant's claim. The state sought to introduce into evidence the testimony of N, a young woman who had worked at the same store as the victim and who alleged that she also had been sexually assaulted by the defendant. The state proffered N's testimony on the issues of intent and a common scheme or plan. The defendant objected on the grounds that the testimony was not relevant and that its probative value did not outweigh its prejudicial impact.

The court held a hearing outside of the presence of the jury during which N testified and was cross-examined by defense counsel. At the conclusion of her testimony and after listening to argument by counsel, the court ruled that it would permit N to testify before the jury. The court stated that it would give a limiting instruction at the conclusion of N's testimony and during the charge to the jury.

N then testified before the jury. She had been hired by the defendant in February, 2000, as a cashier and bagger. N attended special education classes as a result of her learning disability and told the defendant that she was concerned about working in a crowded store. According to N, the defendant paid "a lot of attention" to her. The excessive attention made N feel uncomfortable.

In April, 2000, the defendant was on the upper level of the store, and N asked him to get her a new name tag and shirt after her shift had concluded. The defendant signaled her to follow him into a dark room and, after she arrived, he proceeded to kiss and to touch her. He then grabbed her by the arms, turned her around and pressed his penis into her. The defendant restrained N so that she could not move while he rubbed against her. At some point, the defendant stopped and N turned around. She observed the defendant masturbating, and declined his invitation to touch his penis. She recalled that the entire episode, from the time she entered the dark room until the defendant left, took approximately ten minutes.³ Following N's testimony, the court gave the jury a limiting instruction.

As a preliminary matter, we identify the relevant legal principles and appropriate standard of review that guide our resolution of the defendant's claim. We then address each of the defendant's specific arguments in turn.

"As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused.... Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior." (Citations omitted.) State v. Kulmac, 230 Conn. 43, 60, 644 A.2d 887 (1994); see also State v. George B., 258 Conn. 779, 790, 785 A.2d 573 (2001); see generally Conn.Code Evid. ? 4-5(a). "The rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged." (Internal quotation marks omitted.) State v. O'Neil, 261 Conn. 49, 80, 801 A.2d 730 (2002).

"Evidence of prior misconduct may be admitted, however, when the evidence is offered for a purpose other than to prove the defendant's bad character or criminal tendencies.... Exceptions to the general rule precluding the use of prior misconduct evidence have been recognized in cases in which the evidence is offered to prove, among other things, intent, identity, motive, malice or a common plan or scheme." (Emphasis added; internal quotation marks omitted.) State v. Izzo, 82 Conn.App. 285, 292, 843 A.2d 661, cert. denied, 270 Conn. 902, 853 A.2d 521 (2004); see also Conn.Code Evid. ? 4-5(b); C. Tait, Connecticut Evidence (3d Ed. 2001) ? 4.19.2, pp. 232-33.

Our Supreme Court has established a two part test to determine if prior uncharged misconduct should be admitted into evidence. "First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.... Because of the difficulties inherent in this balancing process, the trial court's decision will be reversed only...