State v. Ellis, 270 Conn. 337 (CT 7/27/2004)
| Decision Date | 27 July 2004 |
| Docket Number | SC 16884 |
| Citation | 270 Conn. 337 |
| Court | Connecticut Supreme Court |
| Parties | STATE OF CONNECTICUT <I>v.</I> ROBERT ELLIS. |
Convicted, on three separate informations involving three separate victims, J, K and S, of attempted sexual assault in the first degree, harassment in the second degree and multiple counts of both sexual assault in the fourth degree and risk of injury to a child, the defendant, a girls softball coach, appealed. The defendant claimed, inter alia, that the trial court improperly denied his motion in limine to exclude from the case involving S evidence of allegations made by J, K and a fourth victim, M, who had opted not to bring charges against the defendant. The defendant also claimed that the trial court improperly consolidated for trial the cases involving J, K and S. Held:
1. The trial court improperly denied the defendant's motion in limine to exclude from the case involving S any evidence of a purported common scheme to sexually abuse girls he met through his position as a softball coach: although the defendant's abuse of J, K and M was proximate in time to his abuse of S, the cases shared few similarities because the defendant's abuse of S was more frequent and more severe, resulting in a ten count information that included one count of attempted sexual assault in the first degree, and S was the only girl he had not coached in softball; furthermore, admission of the testimony of J, K and M, which permitted the jury to consider evidence that was not relevant or material to the issues in the case involving S, was potentially prejudicial to the defendant and could not be considered harmless or cured by the trial court's instructions to the jury.
2. The trial court improperly consolidated the case involving S with the cases involving J and K because the facts of the case involving S were more shocking and violent than the facts in the other two cases and the joinder compromised the jury's ability to consider impartially the charges against the defendant in the cases involving J and K; in addition, the trial court's instructions did not mitigate the resulting prejudice to the defendant because they did not clearly admonish the jury to consider the case involving each victim separately but instead advised that the jury could use the testimony of all of the girls as evidence of a pattern or course of criminal conduct by the defendant.
Procedural History
Information, in one case, charging the defendant with one count of the crime of attempted sexual assault in the first degree, three counts of the crime of sexual assault in the fourth degree, five counts of the crime of risk of injury to a child and one count of harassment in the second degree, information, in a second case, charging the defendant with one count of the crime of sexual assault in the fourth degree and two counts of the crime of risk of injury to a child, and information, in a third case, charging the defendant with two counts of the crime of sexual assault in the fourth degree and two counts of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, where the cases were consolidated; thereafter, the court, Brennan, J., denied the defendant's motion in limine to exclude certain evidence of uncharged misconduct, and the matter was tried to the jury before Brennan, J.; verdicts of guilty; subsequently, the court granted in part the defendant's motion for judgment of acquittal and the state entered a nolle prosequi to one count of risk of injury to a child, and the court thereafter rendered judgments of guilty of one count of attempted sexual assault in the first degree, six counts of sexual assault in the fourth degree, eight counts of risk of injury to a child and one count of harassment in the second degree, from which the defendant appealed.
Reversed; new trial.
Daniel J. Krisch, with whom were Wesley W. Horton and, on the brief, Julia K. Ulrich and Jeffrey J. White, legal interns, for the appellant (defendant).
Nancy L. Chupak, assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Charles Stango, assistant state's attorney, for the appellee (state).
The defendant, Robert Ellis, appeals from the judgment of conviction, rendered after a jury trial, of sixteen counts of sexual misconduct involving three separate victims.1 With respect to the first victim, Sarah S., the defendant was convicted of one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-492 and 53a-70 (a) (1),3 three counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2),4 two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (1),5 three counts of risk of injury to a child in violation of § 53-21 (2) and one count of harassment in the second degree in violation of General Statutes § 53a-183 (a) (1).6 With respect to the second victim, Julia S., the defendant was convicted of one count of sexual assault in the fourth degree in violation of § 53a-73a (a) (2), one count of risk of injury to a child in violation of § 53-21 (1) and one count of risk of injury to a child in violation of § 53-21 (2). With respect to the third victim, Kristin C., the defendant was convicted of two counts of sexual assault in the fourth degree in violation of § 53a-73a (a) (2) and two counts of risk of injury to a child in violation of § 53-21 (2). The trial court denied the defendant's motions for judgment of acquittal7 and for a new trial and sentenced the defendant to a total effective sentence of thirty years, execution suspended after seventeen years, with thirty-five years probation.8 This appeal followed.
On appeal, the defendant claims that the trial court improperly: (1) denied the defendant's motion in limine to exclude evidence of other misconduct from the case involving Sarah S.; (2) consolidated the case involving Sarah S. with the cases involving Julia S. and Kristin C. because the facts of the former case were much more shocking and violent than the facts of the latter two cases; (3) precluded the testimony of the defendant's alibi witness on the ground that Practice Book § 40-21 requires a defendant to give notice of an alibi witness for instances of uncharged misconduct and the testimony of the alibi witness in this case would have been collateral to the issues at trial; and (4) refused to conduct a thorough inquiry into a credible allegation of juror misconduct. The defendant also claims that the state failed to present evidence sufficient to prove beyond a reasonable doubt that he violated the second prong of § 53-21 (1), risk of injury to a child, as alleged in count ten of the information. We reverse the judgment of the trial court.
The jury reasonably could have found the following facts. The defendant was the coach and organizer of the Connecticut Express (Express), a highly competitive, traveling girls softball team that played throughout Connecticut and the United States. The Express consisted of three to five teams in various age groups, including a twelve and under team, a fourteen and under team and a sixteen and under team. The defendant coached each age group at one time or another. Many of the girls who played with the Express had hopes of playing softball in college and of obtaining college softball scholarships.
In addition to coaching the Express, the defendant participated in two other activities related to softball.
In 1994, the defendant began giving private batting and pitching lessons, initially at a facility in Shelton and, beginning in the fall of 1996, at a facility in Ansonia that the Express had purchased and renovated. In March, 1997, the defendant also formed, with one of his friends and two parents of Express players, the Fast Pitch Organization of States and Territories (FAST). The goal of FAST was to organize and stage national softball tournaments at various locations throughout the country and to conduct pitching and batting clinics. The defendant had a reputation as an outstanding softball coach who could help the girls he coached obtain college softball scholarships. In addition to playing a major role in selecting team members, the defendant also acted as a mentor, friend and father figure to many of the girls he coached. The defendant talked to the girls not only about softball, but also about school, family problems, boyfriends and his and the girls' sexual experiences.
Two of the three victims, Julia S. and Kristin C., played for the Express. Julia S. began playing for the Express in 1994 and Kristin C. began playing in 1998. Both girls also took numerous private lessons with the defendant.
Julia S. started taking private pitching lessons with the defendant when she was ten years old. For the next six years, she continued to take weekly lessons with the defendant while playing for the Express. Julia S. described the defendant as a "touchy-feely" type of person who routinely kissed and hugged the girls and placed his hands on their bodies to demonstrate proper form while they were pitching or hitting balls. She testified that she and the other girls grew accustomed to this behavior and that she came to view the defendant as a father figure and friend with whom she could discuss her problems, although she never had occasion to do so. Even more important, she regarded the defendant as someone who could help her obtain a college softball scholarship.
According to Julia S., the incident that formed the basis for her charges against the defendant occurred during a pitching lesson at the Ansonia facility in the winter of 1998 when she was fourteen years old and a freshman in high school. Julia S. testified...
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Cancel v. Comm'r of Corr., AC 40977
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