State v. Dollinger, 7251

• Decision Date: 23 January 1990
• Docket Number: No. 7251,7251
• Citation: 568 A.2d 1058,20 Conn.App. 530
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Edward A. DOLLINGER.

Page 1058

568 A.2d 1058

20 Conn.App. 530

STATE of Connecticut v. Edward A. DOLLINGER.

No. 7251.

Appellate Court of Connecticut.

Argued Oct. 12, 1989.

Decided Jan. 23, 1990.

William F. Gallagher, with whom, on the brief, were Joseph F. Buckley, Kerrie C. Dunne and Robert P. Borquez, New Haven, for appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., with whom were Michael A. Pepper, Deputy Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., and Cecilia Weiderhold, Deputy Asst. State's Atty., for appellee (state).

Before SPALLONE, DALY and EDWARD Y. O'CONNELL, JJ.

SPALLONE, Judge.

The defendant appeals his conviction, after a jury trial, of the crimes of sexual assault in the second, third and fourth degrees and of risk of injury to a child, in violation of General Statutes §§ 53a-71(a)(1), 53a-72a(a)(2), 53a-73a(a)(1)(A) and 53-21, respectively. On appeal, the defendant claims that the trial court improperly admitted hearsay evidence, offered by third parties, of statements made by the infant victim, and that the court improperly denied various trial and posttrial motions. The defendant claims that the trial court erred (1) in ruling that the victim's statement identifying her abuser, made to a physician, was admissible under the medical treatment exception to the hearsay rule, (2) in ruling that the victim's statement identifying her abuser, made to her mother and to her mother's boyfriend, was admissible under the spontaneous utterance and residual exceptions to the hearsay rule, (3) in denying the defendant's motions for judgment of acquittal on the ground of insufficient evidence, and (4) in denying the defendant's motion to modify a protective order to permit supervised visitation with the victim. We find no error.

The jury could reasonably have found the following facts. The victim, V, was born on June 7, 1984, to Sandra Bondos Cherry and Joseph Dollinger, the defendant's brother. V was in the legal custody of and resided with her paternal grandparents from March, 1985 until October 4, 1986, when Cherry was awarded legal custody. Thereafter, V resided with her mother but was daily in the care of her grandparents while her mother was at work. Accordingly, the twenty-eight month old V was present in the grandparents' household during the first two weeks of October, 1986, from 6 a.m. until between 4:30 and 6 p.m. The defendant, Edward Dollinger, resided in the Dollinger household with V from March, 1985, through and including September, 1986, when he changed residences. Cherry, however, observed the defendant at his parents' home on frequent occasions in October, 1986.

On the evening of October 7, 1986, V approached her mother's boyfriend, Randall Kristoff, as he emerged from the shower in Cherry's home and touched and blew on his genitals. When Cherry joined the two from her own shower, Kristoff asked V to "show mommy what you did." V thereupon pulled down Kristoff's pajamas and underwear, fondled his genitals, pulled the garments back up and said, "All better." V also removed Cherry's towel, rubbed Cherry's genital area and said that her mother was "all fixed up."

Cherry asked V who had showed her this and V answered, "Eddie." When asked what else she had learned, V took off her own clothes, lay on her back, spread her legs and fondled herself. To the best of Cherry's knowledge, the defendant was the only person that V knew named Eddie.

V was taken to her grandparents' home for day care on the next two days. On the evening of October 9, 1986, while changing V's diaper, Cherry noticed that V's vaginal area was bright red and sore and heard V complain of pain in the area. V was taken to the Griffin Hospital emergency room where she was examined by Ashokkumr Shah, a physician, who reported finding redness around the vulva and anus and an enlarged hymenal opening. Shah took V's medical history from Cherry and asked V, "What happened?" She responded by putting her finger in her vagina and then in her anus, and said, "Uncle Eddie did this."

At the defendant's trial, evidence was introduced on the sexual abuse of V and the identity of her abuser. V herself did not testify, having been judged incompetent to do so at a prior competency hearing. Police Officer Nancy Cabelus testified to an interview with V in which V used anatomically correct dolls to demonstrate various acts of oral and vaginal sexual intercourse. The Griffin Hospital record of V's treatment was admitted into evidence and Shah was qualified as an expert on the identification of sexually abused children. He testified that, to a reasonable medical certainty, V's injuries were caused by sexual molestation. He stated that the injuries to the vulva and anus had occurred during the twenty-four to forty-eight hours prior to his examination of V, but he could not specify when the hymenal enlargement had occurred. Over the defendant's objections, Shah, Cherry and Kristoff were all permitted to testify as to V's statements to them on the identity of her abuser. The defendant was convicted on all counts and this appeal followed.

I

The defendant's first claim on appeal asserts that it was error to admit V's hearsay statements into evidence through the testimony of the doctor under the medical treatment exception to the hearsay rule. This long standing exception allows into evidence out-of-court statements made by a patient to a physician as long as (1) the declarant was seeking medical diagnosis or treatment, and (2) the statements are reasonably pertinent to these ends. State v. Wood, 208 Conn. 125, 134, 545 A.2d 1026, cert. denied, --- U.S. ----, 109 S.Ct. 235, 102 L.Ed.2d 225 (1988); State v. Maldonado, 13 Conn.App. 368, 372, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988); C. Tait & J. LaPlante, Connecticut Evidence, (2d Ed.1988) § 11.12.3.

Because statements concerning the cause of injury or the identity of the person responsible are generally not germane to treatment, they are not allowed into evidence under the medical treatment exception. We have, however, recognized an exception to that restriction. "[I]n cases of sexual abuse in the home, hearsay statements made in the course of medical treatment which reveal the identity of the abuser, are reasonably pertinent to treatment and are admissible." State v. Maldonado, supra, 13 Conn.App. at 374, 536 A.2d 600. If the sexual abuser is a member of the child victim's immediate household, it is reasonable for a physician to ascertain the identity of the abuser to prevent recurrences and to facilitate the treatment of psychological and physical injuries. Id., at 373-74, 536 A.2d 600.

In this case, the court ruled that V's statements to the doctor met the requirements of the Maldonado exception and so were admissible hearsay. The evidence supplied by Shah, by the hospital records and by Officer Cabelus supported the finding that the child had been sexually abused. The evidence supplied by the defendant's mother supported the finding that the Dollinger home was the principal residence of both V and the defendant between March, 1985, and October 1, 1986. The court further found that Cherry had taken V to the hospital for purposes of treatment.

The defendant does not dispute that V's identification of the defendant to the doctor was pertinent to treatment, but rather alleges that Cherry was not seeking medical treatment in bringing V to the hospital. The defendant claims that Shah provided no treatment of V and that Cherry's motive in bringing V to the hospital was an anticipated need for a medical witness for a subsequent criminal prosecution of the defendant and for her custody dispute with V's paternal grandparents. The defendant argues, therefore, that V's statements to the doctor were erroneously admitted into evidence. We disagree.

The medical treatment exception to the hearsay rule requires that the statements be both pertinent to treatment and motivated by a desire for treatment. In appropriate cases, all that is necessary to admit identification statements under the Maldonado exception is that "the declarant's motive in making the statements be consistent with the purpose of obtaining medical treatment." State v. Maldonado, supra, at 372, 536 A.2d 600. "Such a test ensures that the information being allowed into evidence was rendered with a guarantee of trustworthiness sufficient to justify an exception to the hearsay rule." Id. The rationale of the exception is that "the patient's desire to recover his health ... will restrain him from giving inaccurate statements to a physician employed to advise or treat him." Brown v. Blauvelt, 152 Conn. 272, 275, 205 A.2d 773 (1964). The exception does not apply "where the physician is employed by the injured party merely to testify on his behalf." Id.

The test focuses on the declarant's motives. Even if V was too young to formulate consciously the motive of advancing her own health by being truthful with the doctor, the facts and circumstances here are consistent with that purpose. V's complaints of pain, coupled with the physical manifestations of injury could have led the doctor, an expert in child sexual abuse, to conclude that the child was aware of her discomfort and her need for medical attention. Like the three and one-half year old victim in Maldonado, V at nearly two and one-half years, was old enough to understand what she was being asked, and she responded in an age-appropriate manner without coaching. State v. Maldonado, supra.

Notwithstanding the defendant's speculations that Cherry employed Shah in anticipation of litigation, the court reasonably accepted that Cherry was seeking treatment when she brought her injured child to the hospital. The defendant has failed, therefore, to establish that the court abused its discretion in admitting V's statements made to a treating physician on the identity of her abuser as a medical treatment exception to the rule...