State v. Donald H.G.
| Decision Date | 25 February 2014 |
| Docket Number | No. 34392.,34392. |
| Citation | 84 A.3d 1216,148 Conn.App. 398 |
| Parties | STATE of Connecticut v. DONALD H.G. |
| Court | Connecticut Court of Appeals |
OPINION TEXT STARTS HERE
W. Theodore Koch III, Lyme, CT, assigned counsel, for the appellant (defendant).
Jennifer F. Miller, special deputy assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Charles M. Stango, senior assistant state's attorney, for the appellee (state).
ALVORD, BEAR and SCHALLER, Js.
The defendant, Donald H. G., appeals from the judgment of conviction, rendered by the trial court following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2), sexual assault in the third degree in violation of General Statutes § 53a–72a (a)(1)(A), and three counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2).2 On appeal, the defendant claims: (1) the court erred in allowing the state to introduce evidence of uncharged misconduct, (2) the court erred when it refused to conduct an in camera review of the victim's psychological records, (3) the court's improper response to a question posed by the jury during its deliberations deprived him of a fair trial, and (4) the prosecutor committed prejudicial impropriety during closing and rebuttal argument. We affirm the judgment of the trial court.
The following facts, which reasonably could have been found by the jury, are relevant to the defendant's appeal. The minor victim, who was born in October, 1992, is the niece of the defendant. In the time period between May and October, 2003, when the victim was age ten or eleven, she, along with her sister and her friend, went to the defendant's workplace to help him paint the interior of the building. The victim went upstairs to paint the office while her sister and her friend remained downstairs. The defendant entered the office, where he kissed the victim, pulled down his pants, and asked the victim to perform fellatio on him. The victim complied, while the defendant, who was standing against the wall, guided her head. Before he ejaculated, the defendant warned the victim and told her to swallow it. The victim again complied. The defendant told the victim she was doing “a good job.” The defendant then pulled down the victim's shorts and began to perform cunnilingus on her for a couple of minutes, while looking to make sure no one was entering the room. The defendant also penetrated the victim's vagina with his tongue.
The defendant later took the victim's sister and the victim's friend home, but he returned to his workplace with the victim where he continued to sexually assault her by inserting his fingers into her vagina. The defendant told the victim that she was “grown up and mature,” and he convinced the victim that the sexual assault was their secret. The defendant also asked the victim if she wanted to go to a movie theatre with him. The victim pretended to telephone her mother because she did not want to go with the defendant, and she told the defendant that her mother said she could not go with him. On the basis of these facts, the state charged the defendant with one count of sexual assault in the first degree and two counts of risk of injury to a child.
On or about December 24, 2007, the victim's family had a Christmas party, which the defendant and others attended. During the party, the victim went into the garage, which had an upstairs room with a bar, pool table, television and bathroom, to get a beverage, during which time she encountered the defendant. When the defendant walked by the victim, he slapped her buttocks. “[F]lustered and annoyed,” the victim retreated to her bedroom, where the defendant appeared shortly thereafter. The defendant, who had been drinking but did not appear intoxicated, asked the victim to kiss him or to perform fellatio on him. The victim declined, but the defendant began to rub her back and squeeze her buttocks. The defendant also tried to convince the victim to go for a ride with him, but she refused and returned to the party. On the basis of these facts, the state charged the defendant with one count of sexual assault in the third degree and one count of risk of injury to a child.
On or about December 24, 2008, the victim's family again was hosting a Christmas party, which the defendant and others attended. During the party, the victim was watching television in the room above the garage, when the defendant, who appeared to be intoxicated, entered the room and asked the victim to make him a cocktail. As she made the cocktail, the defendant kept trying to get close to the victim, but she kept moving away. The victim was scared and just wanted the defendant to let her go. When she tried to exit the room, the defendant, whom the victim described as a “really big guy [who is] strong,” pinned her against the wall and began to run his hands down her body, kissing her and grabbing her chest, while holding both of her hands with one of his hands. The victim also testified that the defendant digitally penetrated her vagina during this assault. The victim was afraid, especially because of the defendant's size and the fact that she “was a scrawny kid....” She “just—I wanted help ... [and] didn't want this to happen anymore.” On the basis of these facts, hereinafter referred to as the “2008 Christmas party incident,” the state charged the defendant with one count of sexual assault in the first degree.
On July 2, 2009, the victim, while staying with a friend's family due to a deterioration in her relationship with her family, confided in her friend's mother that the defendant repeatedly had sexually abused her. A few days later, the friend's mother drove the victim to the police station to report the sexual abuse. The victim made further disclosures to the police on August 27, 2009, and September 5, 2009.
The defendant was arrested and charged, by way of an amended information, with two counts of sexual assault in the first degree, one count of sexual assault in the third degree, and three counts of risk of injury to a child. The jury found the defendant guilty of all charges with the exception of the count of sexual assault in the first degree that stemmed from the 2008 Christmas party incident, for which the jury returned a verdict of not guilty. The court accepted the jury's verdict, rendered judgment of conviction on five counts, and imposed a total effective sentence of thirty years incarceration, ten years of which were mandatory, followed by five years of parole with special conditions, and lifetime registration as a sexual offender. This appeal followed. Additional facts will be set forth as necessary.
The defendant claims that the court abused its discretion in permitting the state to introduce uncharged misconduct evidence. He argues that he was charged with crimes related to three incidents involving the victim, but the court permitted the state to introduce evidence relating to a total of six incidents involving the victim, three of which pertained to misconduct for which he never was charged. He contends that the probative value of this evidence was far outweighed by its prejudicial effect.3 The state argues that the court properly balanced the probative value against its prejudicial effect and did not abuse its discretion in concluding that the evidence was admissible. We agree with the state.
The following additional facts are relevant to this issue. On August 15, 2011, the state filed a motion requesting that it be permitted to introduce two incidents of uncharged misconduct involving the defendant and the victim. In the motion, the state alleged that the first incident involved an allegation that the defendant, in October, 2002, had the then nine or ten year old victim perform fellatio on him while they were under a wooden dock in Essex. The state alleged that the second incident occurred between 2007 and 2009 in Vermont and involved the defendant having forced sexual intercourse with the victim. The state then amended its request and sought to introduce evidence of additional incidents of uncharged misconduct, which it alleged occurred at various unnamed times and places but were instances wherein the defendant forced the victim to perform fellatio on him. The state alleged that these instances were so frequent that they blended together in the mind of the victim, but that there was a common link between them because the defendant always ejaculated and always instructed the victim to swallow the ejaculate. The defendant objected to the introduction of any prior incidents of uncharged misconduct.
Following a hearing, the court, citing State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008), superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 579, 969 A.2d 710 (2009), State v. James, 211 Conn. 555, 560 A.2d 426 (1989), and State v. Linarte, 107 Conn.App. 93, 944 A.2d 369, cert. denied, 289 Conn. 901, 957 A.2d 873 (2008), granted the state's request to introduce the evidence of uncharged misconduct, concluding that the evidence was not too remote in time, that it put the sequence of events into perspective, that it was relevant to motive and intent, and that it demonstrated the defendant's “lustful inclination” toward the victim. The court cautioned the state, however, from making a “gratuitous recitation” of the uncharged incidents in order to minimize the prejudicial nature of the evidence. Prior to the testimony from the victim, the court also thoroughly instructed the jury that the evidence of uncharged events was admitted only for the limited purpose of demonstrating the defendant's motive and intent to commit the charged crimes. The court also explained to the jury that the victim would testify about the events in chronological order, with the uncharged misconduct being the first events about which she would testify because they occurred before the charged...
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