State v. Edwin M.

• Decision Date: 02 November 2010
• Docket Number: No. 30481.,30481.
• Parties: STATE of Connecticut v. EDWIN M.
• Court: Connecticut Court of Appeals

6 A.3d 124

124 Conn.App. 707

STATE of Connecticut

v.EDWIN M.¹

No. 30481.

Appellate Court of Connecticut.

Argued Sept. 7, 2010.

Decided Nov. 2, 2010.

Arnold V. Amore, special public defender, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and John J. Davenport, supervisory assistant state's attorney, for the appellee (state).

HARPER, ROBINSON and SCHALLER, Js.

ROBINSON, J.

The defendant, Edwin M., appeals from the trial court's judgment of conviction, following a jury trial, of two 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-49 (a)(2) and 53a-70 (a)(2), one count of risk of injury to a child in violation of General Statutes § 53-21(a)(1) and one count of risk of injury to a child in violation of General Statutes § 53-21(a)(2). On appeal, the defendant claims that (1) the trial court improperly permitteda state's witness to testify as an expert, (2) the trial court improperly permitted expert testimony on an ultimate issue of fact and (3) the evidence adduced at trial was insufficient to support his conviction of two counts of sexual assault in the first degree and one count of attempt to commit sexual assault in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. K and D are the parents of two minor children, one of whom is the victim, A. Prior to May, 2006, K watched the children during the day before going to work in the evening, and D watched the children in the evening after working in the morning. This working arrangement ensured that at least one parent was available to watch the children throughout the day. In May, 2006, however, K's work schedule changed and her job required her to work the day shift three days each week. As a result, K arranged for H, the couple's niece, to watch the two children on the days K had to work a day shift. The arrangement provided that K would bring the children to H's house in the mornings on days when she worked a day shift, and D would pick them up later in the afternoon.

On the morning of May 17, 2006, when the victim was seventeen months old, K dressed the children and changed the victim's diaper. In doing so, K did not notice any bruising or marks on the victim's body, aside from two small bite marks, one on her back and one on her right arm, that had been inflicted by the couple's other child. Later that morning, some time after 7 a.m., K brought the two children to H's house and then went to work.

At around 10 or 10:30 a.m., H laid the victim down for a nap on the bed in her bedroom. When H brought the victim into the bedroom, the defendant, who was H's boyfriend at the time, was lying on the bed watchingtelevision. The defendant also was the only male present at the house. He remained in the bedroom with the victim, either sleeping or watching television, until approximately 3:30 or 4 p.m.

Throughout the day, H returned to the bedroom periodically to check on the victim and to change her diaper and clothing. During this time, H did not notice any marks or bruises on the victim's face ² or any other area of her body. At approximately 2:20 p.m., however, the defendant told H to stay out of the bedroom. Sometime thereafter, H heard the victim crying but did not enter the bedroom or check on the victim again until D arrived at the house.

D arrived to pick up his children around 3:30 or 4 p.m. and noticed that the victim had suffered multiple injuries, including a swollen lip, blood in her mouth, a bruised eye, red ears and a rash on her feet.³ When H was unable to explain how the injuries had been sustained, D took the victim to St. Mary's Hospital in Waterbury, where the victim was admitted as a patient.

At approximately 6:30 p.m., Francis Brevetti, an officer with the Waterbury police department, was dispatched to St. Mary's Hospital in response to a call from Pamela Love, a physician in the pediatric unit of the emergency department, regarding a complaint alleging assault to a child. After arriving at the hospital, Brevetti investigated the complaint and subsequently notified the detective bureau at the Waterbury police department of the incident. Gary Agnon, a sergeant, along with a detective, responded to Brevetti's call.

After speaking with hospital personnel, Brevetti, and D, Agnon and the detective proceeded to H's house. Upon learning that the police were at the house to investigate the injuries to the victim, the defendant instructed H to lie to the police and say that he was not in the house. Although H complied, the police discovered the defendant in the bedroom when they conducted a consensual search of the house. The police then asked the defendant and H to accompany them to the police station for questioning. Before going to the police station, the defendant told H not to reveal his real name and to tell the police that he had arrived at the house twenty minutes after the victim had left.

At the police station, the defendant initially provided the police with a false name but later admitted that he had lied when Agnon informed him that the information that he had provided was not consistent with a computer check. Afterward, during questioning, the defendant again lied to the police, stating that he had not had any contact with the victim and had arrived at the house twenty minutes after the victim had left. Again, the defendant admitted that he lied when Agnon informed him that H had provided the police with other information. He thereafter admitted that he had arrived at the house at about 3 or 4 a.m., had been at the house all day and had been in the bedroom with the victim for several hours.

On May 18, 2006, three medical professionals examined the injuries sustained by the victim. These examinations revealed that the victim had suffered a multitude of injuries to the entirety of her body and that the severity of these injuries was typically not seen in children of the victim's age. In her mouth, she had a torn frenum ⁴ and two well-defined, oval abrasions onher soft palate, injuries consistent with a large blunt-ended object being forcefully pushed into her mouth. On her face and ears, the victim had an abrasion and multiple bruises consistent with forceful trauma, such as a blow to her head or someone pulling on her ears. The victim's ankles and feet had bruising that was consistent with forceful holding beyond that necessary to change a diaper. In her genital and rectal area, the victim had generalized bruising, indicative of forceful compression that is usually inflicted by repetitive trauma, and an anal tear. The victim also had vaginal, labial and hymeneal bruising that was consistent with direct forceful injury.

On May 18, 2006, the police executed a search warrant at H's house and seizedseveral items of clothing, including the victim's shorts, the defendant's shirt and boxer shorts, and several washcloths. Subsequent testing of these items revealed the presence of human blood and saliva on the victim's shorts, the defendant's shirt and three of the washcloths. Thereafter, DNA testing revealed that the victim and the defendant were both contributors to DNA found on the victim's shorts and that the defendant was a contributor to the DNA found on his shirt but that the victim could not be ruled out as a contributor.

The defendant was arrested on May 22, 2006. On June 4, 2008, the state filed a second substitute information, charging the defendant with two counts of sexual assault in the first degree in violation of § 53a-70 (a)(2), one count of attempt to commit sexual assault in the first degree in violation of §§ 53a-49 (a)(2) and 53a-70 (a)(2), one count of risk of injury to a child in violation of § 53-21(a)(1) and one count of risk of injury to a child in violation of § 53-21(a)(2). A jury trial was held from June 4 to 10, 2008. The defendant made an oral motion for a judgment of acquittal on June 9, 2008, which was denied by the court. On June11, 2008, the jury returned a verdict of guilty on all counts, and the defendant was sentenced on September 12, 2008.⁵ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly permitted a state's witness to testify as an expert. Specifically, he claims that Martin Geertsma, the director of the pediatric unit at St. Mary's Hospital, was not qualified as an expert witness in the area of sexual abuse and, thus, should not have been permitted to render an opinion concerning the sexual abuse of the victim. Because the defendant did not challenge Geertsma's qualifications at trial, his claim is unpreserved and he seeks review under the plain error doctrine. See Practice Book § 60-5. We reject the defendant's claim.

The following additional facts are relevant to our analysis of the defendant's claim. During the state's case-in-chief, the state called Geertsma to describe the injuries that he observed during his examination of the victim on May 18, 2006. Before describing the injuries, Geertsma testified that he had been the head of the pediatric unit at St. Mary's for twelve years, was board certified in developmental and behavioral pediatrics, had worked as a general pediatrician for many years and had taught general pediatrics as well as developmental and behavioral pediatrics to medical students. Thereafter, Geertsma provided a detailed summary of the victim's injuries that he had observed. He also testified that, to a reasonable degree of medical certainty, the two oval abrasions on the victim's soft palate were "consistent with being caused by an adult male erect penis." The defendant did not object on the record toGeertsma's qualifications, and we have no record that the trial court was ever alerted to the...