State v. Jacobson

• Decision Date: 21 August 2007
• Docket Number: No. 17415.,17415.
• Citation: 283 Conn. 618,930 A.2d 628
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Scott JACOBSON.

930 A.2d 628

283 Conn. 618

STATE of Connecticut v. Scott JACOBSON.

No. 17415.

Supreme Court of Connecticut.

Argued May 16, 2006.

Decided August 21, 2007.

Norm Pattis, Bethany, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellee (state).

BORDEN, NORCOTT, KATZ, PALMER and ZARELLA, Js.^*

PALMER, J.

A jury found the defendant, Scott Jacobson, guilty of nine counts of sexual misconduct involving two young male victims.¹ As to the first victim, M, the jury found the defendant guilty of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2)² and two counts of risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21(a)(2).³ As to the second victim, B, the jury found the defendant guilty of one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70(a)(2) and 53a-49(a)(2),⁴ one count of sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1)(A),⁵ and three counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21(2).⁶ The trial court rendered judgments in accordance with the jury verdicts,⁷ from which the defendant appealed to the Appellate Court, claiming, inter alia, that the trial court had abused its discretion in allowing the state to introduce into evidence (1) testimony concerning the defendant's alleged prior misconduct involving a third young male, (2) certain photographs of young children that had been found in the defendant's possession, and (3) testimony regarding a ziplock bag of hair that also had been found in the defendant's possession. See State v. Jacobson, 87 Conn.App. 440, 443, 866 A.2d 678 (2005).

Although the Appellate Court agreed with each of the defendant's claims of evidentiary impropriety; id., at 449, 451, 454, 866 A.2d 678; it also concluded that those improprieties were harmless and, therefore, that the defendant was not entitled to a new trial.⁸ See id., at 450, 451, 456, 866 A.2d 678. We granted the defendant's petition for certification to appeal limited to the following issues: "Did the Appellate Court properly determine that the improper introduction of fifty-three photographs, testimony regarding a ziplock bag of hair and testimony regarding the defendant's prior misconduct constituted harmless error?" State v. Jacobson, 273 Conn. 928, 873 A.2d 999 (2005). With respect to the testimony concerning the defendant's prior misconduct, we conclude that, contrary to the determination of the Appellate Court, the trial court did not abuse its discretion in allowing the state to present that testimony. We further conclude that the Appellate Court properly determined that the admission of the photographs and the testimony regarding the ziplock bag of hair was harmless error. Accordingly, we affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. "In 1995, as [the] coach of a youth ice hockey team, the defendant met seven year old B, whose older brother was a member of the team, and B's mother. The defendant befriended B's mother, who was having marital difficulties at the time, offering to drive her son to Greenwich for hockey practices and games. She welcomed the help and even let B, who was not a team member, tag along for the rides. During that time, the defendant expressed a special interest in B, encouraging him to play hockey, helping him with his schoolwork and letting him sleep at his home a few nights a week. They became so close that the defendant became B's godfather.

"Sometime later, the defendant registered B to play on a youth football team. It was [through that team] that the defendant met nine year old M, one of B's teammates, and M's mother, a divorcee. M saw the defendant about twice a week during the football season and once a week after the football season ended, and occasionally he stayed the night at the defendant's home, along with B. At the request of M's mother, the defendant helped M with his schoolwork and became, according to M's mother, part of her support system.

"In 1999, the defendant moved to Florida, but he maintained contact with both M and B. He purchased a [cellular telephone] for M and called him regularly for updates on his schoolwork. He checked on B a couple of times a week to find out how he was faring in school and with sports. He also returned periodically to Connecticut to visit them both.

"On one such visit, in 2001, the defendant stayed two nights at B's house, along with M. The defendant slept in the same bedroom as M, B and two of B's brothers. The beds were pushed together, and the defendant slept next to M. M testified that he awoke the first night and realized that the defendant was under the covers performing oral sex on him. Rather than confront the defendant, M pretended to be asleep. The next day, M accompanied the defendant and B to breakfast but decided not to mention what had occurred the night before. That night, M and the defendant again stayed at B's house, the sleeping arrangements being the same. According to M, he awoke in the night to find the defendant performing oral sex on him. He ejaculated in the defendant's mouth and cried himself to sleep.

"Shortly thereafter, M's mother had a falling out with her parents, with whom she and her two sons were living, and was asked to leave. After speaking with the defendant about the falling out, she and her two boys left for Florida and eventually moved into an apartment with the defendant. According to M's mother, she and the defendant initially got along quite well, but as time went on, she became increasingly concerned [about] his relationship with M, claiming that he spent an inordinate amount of time and money on M. As her relationship with the defendant soured, she asked him to leave the apartment, after which [M told her that the defendant had sexually assaulted him]. She immediately contacted the local police and arranged for M to return to Connecticut. Before returning to Connecticut herself, M's mother confronted the defendant with her son's allegation, to which he responded that M was lying.

"Back in Connecticut, M informed the Monroe police department that he had been sexually assaulted by the defendant at B's house in March, 2001. The police contacted B's mother, who was on vacation in Florida, and asked her to bring B to the police station when she returned to Connecticut. She flew back the next day, contacted the police department and was told that the defendant allegedly had sexually assaulted M. According to B's mother, she refused to believe the allegation. On the drive to the police station, she expressed to B her frustration with M and his mother, telling B that it was a waste of time to go to the police department. B responded: `I know this happened to [M] because it happened to me, too.'

"According to B, while he was in the third grade [in 1997, the defendant sexually assaulted him] on three occasions. The first incident occurred when he slept at the defendant's home, in the same bed, and awoke to find the defendant touching his penis with his hands and mouth. B said nothing and eventually fell back asleep. The second incident occurred a few weeks after the first incident. B again slept at the defendant's house, and before he fell asleep, the defendant forced B to touch the defendant's penis, after which he asked B to keep it secret. The third incident occurred a few months later, again at the defendant's house. That night, before B fell asleep, the defendant, who was naked, approached B, fondled his penis, giving him an erection, and attempted unsuccessfully to have B sodomize him." State v. Jacobson, supra, 87 Conn.App. at 443-46, 866 A.2d 678. Additional facts will be set forth as necessary.

On appeal to the Appellate Court, the defendant raised several claims of evidentiary impropriety. Specifically, the defendant claimed that the trial court had abused its discretion in permitting the state to (1) present testimony about certain alleged prior misconduct by the defendant involving a third boy, (2) introduce into evidence fifty-nine photographs, almost all of which depicted young boys, that M's mother had found in the defendant's briefcase, and (3) adduce testimony about a ziplock bag of hair that M's mother also had found in the defendant's briefcase. With the exception of six of the photographs that depicted M and B, the Appellate Court agreed with the defendant that the trial court should not have permitted the state to present any of the challenged evidence. The Appellate Court also concluded, however, that the defendant was not entitled to a new trial because the improper admission of that evidence was harmless.

On appeal to this court upon our grant of certification, the defendant maintains that he is entitled to a new trial because, contrary to the determination of the Appellate Court, the trial court's evidentiary rulings constituted harmful error.⁹ The state contends, first, that the Appellate Court improperly concluded that the trial court had abused its discretion in allowing the state to adduce testimony regarding the defendant's prior misconduct. Alternatively, the state maintains that, even if the Appellate Court correctly concluded that the trial court improperly had failed to exclude that prior misconduct evidence, the Appellate Court also correctly concluded that the admission of that testimony constituted harmless error. The state further maintains that the Appellate Court correctly concluded that the admission of the photographic evidence and the testimony concerning the bag of hair, although improper, was harmless.¹⁰ We agree with the state that the Appellate Court...