State v. Favoccia

Decision Date19 January 2010
Docket NumberNo. 30266.,30266.
Citation119 Conn.App. 1,986 A.2d 1081
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Anthony L. FAVOCCIA, Jr.

Gary A. Mastronardi, Bridgeport, for the appellant (defendant).

Adam E. Mattei, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Jonathan C. Benedict, former state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the state (appellee).

DiPENTIMA, GRUENDEL and LAVERY, Js.

GRUENDEL, J.

The defendant, Anthony L. Favoccia, Jr., appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2).1 He claims that the trial court abused its discretion in permitting the state to offer certain expert testimony that allegedly bolstered the credibility of the victim in the present case. We agree and, accordingly, reverse the judgment of the trial court.

From the evidence adduced at trial, the jury reasonably could have found the following facts. The events underlying the defendant's conviction occurred in the fall of 2005 and the summer of 2006. At that time, the victim, D, was under sixteen years of age.2 Following the divorce of her parents when she was three years old, the victim resided with her mother, S. The victim regularly spent weekends with her father, R, pursuant to a court approved visitation schedule.

The defendant was a longtime friend of R, whom the victim had known since early childhood as "Uncle Tony." During one of her weekend visits with R in the fall of 2005, the defendant spent the night at R's residence. R worked an overnight shift as a 911 operator that evening. After R departed the residence and his girlfriend, M, had gone to bed, the defendant entered the victim's bedroom and lay next to her. The defendant kissed her neck and touched her back, stomach, upper legs and buttocks. The encounter ended abruptly after approximately fifteen minutes, and the defendant told the victim that he would "[s]ee [her] tomorrow. . . ." The victim thereafter did not report that incident to her parents. She did, however, inform two classmates and close friends, J and B, of her encounter with the defendant. Although the victim instructed J and B to keep the matter secret, they encouraged the victim to report the incident to her mother.

A second incident involving the defendant and the victim occurred in the summer of 2006, during another weekend visit at R's residence. On that particular evening, the defendant was present when R, a volunteer firefighter, left the residence to respond to a fire. At that time, the victim took a shower and then retreated to her bedroom robed in a towel. After she closed the door, the defendant suddenly entered the room. As the victim testified, "he [got] on top of me and started kissing me on my neck . . . well, first it was on the lips and then my neck. . . . [H]e was on top of me, my towel had started to come off . . . I guess because of being on top of me, and it was not a relatively big towel, and he was . . . touching on my sides and everything and then . . . after maybe five, ten minutes, I told him that I needed to get dressed and that he needed to leave, so he had to get off of me." The defendant complied with her request. The victim did not report the incident to her parents but did inform J and B of the encounter, who again encouraged the victim to report the incident to her mother. The victim falsely assured her friends that she had done so.

One year later, S finally learned of the incidents involving her daughter and the defendant. On that evening in late June or early July, 2007, S overheard the victim, J and B talking about a recent incident in which the defendant attempted to "[look] down [the victim's] shirt. . . ." J then recounted to S the details of the victim's two encounters with the defendant in the fall of 2005 and summer of 2006, and the victim began to cry. Shocked, S took the victim, J and B to the Stratford police department to report the incidents.

The defendant thereafter was arrested and charged, by amended information dated May 29, 2008, with one count of sexual assault in the second degree in violation of General Statutes (Rev. to 2005) § 53a-71 (a)(1),3 one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a)(1),4 and two counts of risk of injury to a child in violation of § 53-21(a)(2). A jury trial followed. The state's case included testimony from the victim, J and B, and two exhibits. In addition, the state presented the expert testimony of psychologist Lisa Melillo. The defense consisted of testimony from R, M and E, the victim's high school color guard coach, as well as four exhibits. Following the close of evidence, the defendant moved for a judgment of acquittal. The court granted that motion as to the sexual assault in the fourth degree count only, concluding that the state had not proven beyond a reasonable doubt that the victim was under the age of fifteen at the time of the alleged incidents. The matter was submitted to the jury, which found the defendant guilty on both counts of risk of injury to a child. The jury further informed the court that it was "deadlocked on the issue of sexual assault in the second degree" and saw "no possibility of unanimity on this issue." The court thus declared a mistrial on that count. The court rendered judgment accordingly and sentenced the defendant to a total effective term of twenty years incarceration, execution suspended after ten years, with twenty-five years of probation.5 This appeal followed.

On appeal, the defendant maintains that the court abused its discretion in permitting the state to offer certain expert testimony that vouched for and bolstered the credibility of the victim. He focuses on four colloquies between the prosecutor and Melillo in which Melillo allegedly conveyed to the jury her opinion that the victim had suffered sexual abuse. The state argues that the defendant's claim is unpreserved in part, that the court did not abuse its discretion in admitting Melillo's expert testimony and, alternatively, that the defendant has failed to demonstrate harm stemming from any abuse of that discretion. On the particular facts of this case, we agree with the defendant.

I FACTS

The following additional facts are relevant to our review. Prior to trial, the state disclosed a list of potential witnesses. That disclosure stated in relevant part: "Lisa Melillo [to] testify as to characteristics of children who claim they were sexually abused." At trial, the state commenced its case-in-chief with the testimony of the victim, followed by the constancy of accusation testimony of J and B. The state then called Melillo to the witness stand.

That testimony began with a recitation of Melillo's qualifications. Melillo testified that she is "a nationally certified school psychologist, which is the highest level of certification in the practice of school psychology." She testified that she had been a full-time school psychologist for twenty-one years. In addition, Melillo had seven years of experience as a forensic interviewer, during which she has conducted "between 150 and 160 interviews. . . ."6 Melillo attested to her ample training as a forensic interviewer, which involved instruction with respect to behavioral characteristics of children who claimed to have been sexually abused. Her professional training included participation in the CornerHouse model in Minneapolis, Minnesota, the Beyond Finding Words program in Indianapolis, Indiana, and a related program in Huntsville, Alabama, as well as "various trainings" in Connecticut. Melillo testified that she was "very involved in the Finding Words" training program, serving as both trainee and trainer. She explained that Finding Words is "a weeklong program, and part of it is certainly the interview protocol itself, but it's the whole aspect of child abuse, child sexual abuse, investigation stemming from the role of law enforcement, the role of child protective services, the department of children and families, being able to understand the dynamics or the behavioral characteristics of the children who experience abuse, prosecution for the children who have been abused, and so . . . it's a full program package." In addition, Melillo testified that she was part of the multidisciplinary investigative team at the Center for Women and Families of Greater Bridgeport.

Melillo testified that she had not interviewed or spoken with the victim in the present case. Rather, she reviewed certain police reports and a report prepared by Donna Vitulano, her colleague at the Center for Women and Families of Greater Bridgeport, who had conducted a forensic interview with the victim.7 Melillo testified that she watched the video of that forensic interview twice.8 In addition, Melillo testified that she had spoken with the prosecutor about the case prior to the commencement of trial. She opined that her testimony at trial was predicated on her review of "the documents, [her] discussions [with the prosecutor] and the DVD."

In this appeal, the defendant challenges the admission of opinions expressed by Melillo in four separate colloquies with the prosecutor. We detail the pertinent portions of each in turn.

A First Opinion

The first challenged opinion concerns Melillo's testimony that the present case involved an accidental disclosure of sexual abuse:

"[The Prosecutor]: . . . What types of disclosures are there?

"[The Witness]: They can be accidental disclosures. They can be purposeful disclosures. . . .

"[The Prosecutor]: . . . What is an accidental disclosure?

"[The Witness]: An accidental disclosure is a situation where a child has decided never to talk about their experiences for various reasons, but, despite the efforts of that child to keep this . . . to...

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19 cases
  • State v. Leniart
    • United States
    • Connecticut Court of Appeals
    • 14 juin 2016
    ...province of the jury as fact finders "into which no expert may venture," quoting this court's decision in State v. Favoccia, 119 Conn. App. 1, 29, 986 A.2d 1081 (2010), aff'd, 306 Conn. 770, 51 A.3d 1002 (2012). The state further argued that any concerns that the defense sought to alleviate......
  • State v. Favoccia
    • United States
    • Connecticut Supreme Court
    • 21 septembre 2012
    ...L. Favoccia, Jr., of two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).2 State v. Favoccia, 119 Conn. App. 1, 30, 986 A.2d 1081 (2010). On appeal, the state claims that the Appellate Court improperly concluded that: (1) the trial court had abused its d......
  • State v. Favoccia
    • United States
    • Connecticut Supreme Court
    • 21 septembre 2012
    ...L. Favoccia, Jr., of two counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2) .2State v. Favoccia, 119 Conn.App. 1, 30, 986 A.2d 1081 (2010). On appeal, the state claims that the Appellate Court improperly concluded that: (1) the trial court had abused its dis......
  • State v. Leniart
    • United States
    • Connecticut Court of Appeals
    • 14 juin 2016
    ...province of the jury as fact finders “into which no expert may venture,” quoting this court's decision in State v. Favoccia, 119 Conn.App. 1, 29, 986 A.2d 1081 (2010), aff'd, 306 Conn. 770, 51 A.3d 1002 (2012). The state further argued that any concerns that the defense sought to alleviate ......
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7 books & journal articles
  • Lay & Expert
    • United States
    • James Publishing Practical Law Books Trial Evidence Foundations Opinion
    • 5 mai 2019
    ...which did not include an assumption of interrupted workdays and workweeks was insufficient to prove capacity to work. State v. Favoccia , 986 A.2d 1081 (Conn. App. 2010). Where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based......
  • Opinion
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2017 Contents
    • 31 juillet 2017
    ...which did not include an assumption of interrupted workdays and workweeks was insu൶cient to prove capacity to work. State v. Favoccia , 986 A.2d 1081 (Conn. App. 2010). Where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based o......
  • Opinion
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2018 Contents
    • 31 juillet 2018
    ...which did not include an assumption of interrupted workdays and workweeks was insu൶cient to prove capacity to work. State v. Favoccia , 986 A.2d 1081 (Conn. App. 2010). Where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based o......
  • Opinion
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2014 Contents
    • 31 juillet 2014
    ...which did not include an assumption of interrupted workdays and workweeks was insufficient to prove capacity to work. State v. Favoccia , 986 A.2d 1081 (Conn. App. 2010). Where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based......
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