State v. IBAN C.

Decision Date04 October 2005
Docket NumberNo. 17389.,17389.
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. IBAN C.

Alice Osedach, assistant public defender, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Deborah Mabbett, assistant state's attorney, for the appellee (state).

SULLIVAN, C.J., and BORDEN, NORCOTT, PALMER and ZARELLA, Js.

Opinion

BORDEN, J.

The defendant appeals from the trial court's 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 The defendant claims that the trial court improperly: (1) admitted the opinion of an expert witness, via testimony and a written report, on the ultimate issue in the case; (2) questioned two witnesses in violation of the defendant's due process right to a fair trial before an impartial judge and jury; and (3) appointed a guardian ad litem for the victim for the purpose of compelling her to testify against the wishes of her parents. We affirm in part and reverse in part the judgment of the trial court.

In connection with two separate incidents, the defendant, Iban C.,2 was charged with one count of sexual assault in the first degree (count one) in violation of General Statutes § 53a-70 (a) (2),3 one count of attempted sexual assault in the first degree (count two) in violation of General Statutes §§ 53a-49 (a)(2)4 and 53a-70 (a)(2), and two counts of risk of injury to a child (counts three and four) in violation of § 53-21(a)(2). Counts one, two and three of the information related to an alleged sexual assault of the victim by the defendant in the bathroom of his home (bathroom incident). Count four of the information related to an alleged sexual assault of the victim by the defendant in one of the bedrooms of his home (bedroom incident). The jury found the defendant guilty of risk of injury to a child under counts three and four of the information, and the trial court subsequently rendered judgment of conviction in accordance with the jury's verdict. This appeal followed.5

The jury reasonably could have found the following facts. The five year old victim, who was the niece and goddaughter of the defendant, lived next door to the defendant and often went to his home to play with his children. On two separate occasions, the defendant engaged in inappropriate conduct with the victim. On one occasion, in a bedroom of the defendant's home, the defendant kissed the victim on the mouth "like he kisses his wife" and rubbed his penis against the back of the victim's pants. On another occasion, in the bathroom of the defendant's home, he rubbed his penis against the victim's vagina and then urinated on the floor.6

The victim did not disclose either of these incidents until she and her mother were at a relative's house preparing for a New Year's Eve party. At the party, the victim's mother and other adults were playing a game in which a participant would receive $1 for telling the truth. The victim offered to tell the truth for $1 as well, at which point she disclosed that the defendant had "kissed her on the mouth" and had "come into the bathroom and [had] cleaned [her] with toilet paper."

The victim's mother subsequently telephoned the victim's pediatrician to obtain a referral to someone who could help determine if the victim was being truthful in her allegations against the defendant. The pediatrician referred the victim's mother to Veronica Ron-Priola, another pediatrician who worked in the same practice. She suggested that the mother contact the department of children and families (department) to report the abuse. Ron-Priola, worried that the victim's mother might not contact the department because she did not want to get the defendant in trouble, telephoned the department to report the abuse the next day.

Shortly after receiving the complaint from Ron-Priola, the department commenced an investigation into the matter and called the police, who also notified the multidisciplinary investigation team (investigation team).7 A member of the investigation team interviewed the victim in a "child friendly room" regarding her experience with the defendant. Detective Rachel Halas of the Danbury police department observed the interview through a one-way mirror. On the basis of that interview, the investigation team referred the victim to Ron-Priola for a physical examination. After performing that examination, Ron-Priola completed a written report indicating that the results of the physical examination were normal. Ron-Priola's report, however, contained a diagnosis of "[c]hild [s]exual [a]buse" based both on her physical examination and the victim's history developed by the investigation team. After reviewing Ron-Priola's written report, Halas and Detective Julio Lopez of the Danbury police department met with the defendant at his home and invited him to come to the police station for a voluntary interview. During the interview at the station, the defendant acknowledged that be was aware of the fact that the victim had alleged that he had touched and kissed her in an inappropriate manner, but he initially denied any wrongdoing. The defendant continued to deny touching the victim in a sexual manner until Halas asked him if he would be willing to submit to a polygraph examination. At that point, the defendant's demeanor changed. He became very nervous, began sweating and asked several questions about the polygraph examination. Halas and Lopez eventually concluded, after additional questioning, that the defendant would be more willing to discuss what had happened between himself and the victim if a woman was not in the room. Halas excused herself from the interview room, and Lopez continued talking to the defendant for approximately another twenty minutes. At the end of that conversation, the defendant confessed to having had inappropriate contact with the victim in one of the bedrooms of his home between June and July, 2002, and provided a written statement describing the incident.8 Once the statement was completed, Lopez translated the entire statement into Spanish for the defendant's approval, and the defendant signed and swore to its accuracy under oath. The defendant was then permitted to leave the police station.

Rogerio Lima, an employee of the department, subsequently interviewed the defendant as part of its investigation into the victim's allegations. The defendant told Lima that one evening when he had gotten out of the shower, he saw the victim and put her in his lap while he was wearing only underwear. He then realized that he had been doing something wrong and put her back down. Lima asked the defendant to describe the incident in more detail and inquired as to whether the statement that the defendant gave to the police was accurate. Lima read the defendant's statement to him in Spanish once again, and the defendant confirmed that it was an accurate statement of the incident. The police arrested the defendant later that day.

The jury found the defendant guilty of risk of injury to a child with respect to both the bathroom incident and the bedroom incident. The court sentenced the defendant to ten years imprisonment, plus two years special parole, for a total effective sentence of twelve years on each count, to run concurrently.9 This appeal followed. Additional facts and procedural history will be set forth as necessary.

I EXPERT OPINION

We first address the defendant's claim that the trial court improperly admitted the opinion of an expert witness, via testimony and a written report, on the ultimate issue in the case. Specifically, the defendant contends that Ron-Priola's testimony and written report stating her diagnosis of "[c]hild [s]exual [a]buse" invaded the province of the jury by giving an opinion that embraced the ultimate issue in the case, where the trier of fact did not need expert assistance in deciding that issue, and endorsed the credibility of the victim. We agree. We also conclude that the trial court's error was harmful with respect to the conviction pertaining to the bathroom incident. With respect to the jury's conviction of the defendant pertaining to the bedroom incident, however, we conclude that the error was harmless.

The following additional facts and procedural history are relevant to this claim. Prior to trial, the defendant moved to preclude expert medical testimony from Ron-Priola as to whether the victim had been sexually abused because that question was one of the facts that must be decided by the jury. The defendant argued that a central contention of his case was that the alleged sexual abuse of the victim had never taken place; therefore, it was up to the jury to determine whether the victim had been sexually abused, rather than for Ron-Priola to offer a conclusory opinion as to that fact. The state made an offer of proof that Ron-Priola's "testimony would include `symptoms or signs of the sexual abuse.'" The trial court denied the defendant's motion. The court ruled that Ron-Priola was permitted to testify about the "results of her examination, what signs or symptoms she saw and whether that's consistent with sexual abuse," and that she could testify consistently with the state's offer of proof.

At trial, the state called Ron-Priola as its last witness. During her testimony, she stated that, "because the mucus in the genital area heals very quick[ly]," the majority of the examinations of children who have been sexually abused yield normal results. On cross-examination, Ron-Priola acknowledged that such a result was also consistent with a child who had not been sexually abused. She based her diagnosis, however, on the concerns expressed and allegations made by the victim's mother at the time of the physical examination, and on the interview of the victim conducted by the...

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