State v. James G., (SC 16967).

• Court: Supreme Court of Connecticut
• Writing for the Court: ZARELLA, J.
• Citation: 844 A.2d 810,268 Conn. 382
• Parties: STATE OF CONNECTICUT v. JAMES G.
• Decision Date: 13 April 2004
• Docket Number: (SC 16967).

268 Conn. 382
844 A.2d 810

STATE OF CONNECTICUT
v.
JAMES G

(SC 16967).

Supreme Court of Connecticut.

Argued September 24, 2003.

Officially released April 13, 2004.

Borden, Katz, Palmer, Vertefeuille and Zarella, Js.

Timothy H. Everett, with whom, on the brief, were Todd D. Fernow, and Trent Haas, David Tycz and Jennifer Bourn, certified legal interns, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Christopher Alexy, senior assistant state's attorney, for the appellee (state).

Opinion

ZARELLA, J.

A jury found the defendant, James G.,¹ guilty of sexual assault in the first degree in violation of General Statutes (Rev. to 1993) § 53a-70 (a) (2),² sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2),³ and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2).⁴ The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to twenty-three years imprisonment. The defendant appealed,⁵ claiming that: (1) the trial court improperly allowed the state to introduce evidence of the defendant's prior misconduct to show a common plan or scheme to abuse young girls sexually; (2) the trial court improperly declined to order the disclosure of confidential school and department of children and families records relating to T, the victim, and K, her older half-sister; (3) he was convicted under a statutory provision not in effect at the time of the alleged offense in violation of the ex post facto and due process clauses of the United States constitution;⁶ and (4) the trial court improperly denied the defendant's motions for a mistrial and a new trial that were based on alleged prosecutorial misconduct. We reject the defendant's claims and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In November, 1999, the defendant's biological daughter, T, lodged a criminal complaint against the defendant alleging that he had sexually molested her between April, 1993, and January, 1994, when she was seven years old. The complaint arose after T informed her mother, through a letter written in November, 1999, that the defendant had sexually abused her.⁷ At the time of the defendant's January, 2001 trial, T was fifteen years old.⁸

The defendant's sexual abuse of T began in April, 1993, during an incident in which the defendant entered the bathroom just after T had taken a bath. Although the defendant did not reside with T and T's mother at this time, he slept at their house approximately four nights per week.⁹ The defendant took T's towel and proceeded to dry her off and digitally penetrate her vagina for approximately five minutes.

Thereafter, the defendant began entering T's room at approximately midnight several times per week. The defendant would cover T's head with a blanket and either digitally or orally penetrate her vagina. The defendant also would kiss T's cheek and neck. He remained clothed during these incidents except for one time when he did not wear pants.

The defendant threatened T, stating that he would harm T's mother and K if T told anyone about the abuse. During the course of the abuse, from April, 1993, to January, 1994, T did not inform anyone about the defendant's actions.

The defendant's sexual abuse of T ceased in January, 1994, after K reported that the defendant had sexually abused her from 1986 to January, 1994. After K had reported the alleged abuse in 1994, the defendant was arrested and charged with unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a)¹⁰ in connection with his abuse of K. K declined to testify at the defendant's trial on that charge, however. The defendant thereafter entered a plea under the Alford¹¹ doctrine¹² on November 30, 1994, and received a four year suspended sentence and three years probation. Additional relevant facts will be set forth as required.

I

The defendant first claims that the trial court abused its discretion in allowing the state to elicit testimony from K regarding the defendant's sexual abuse of her to show a common plan or scheme of sexual abuse. The defendant acknowledges that he is "hard-pressed" to dispute the trial court's determination, under our holding in State v. Kulmac, 230 Conn. 43, 63, 644 A.2d 887 (1994), that the allegations of sexual abuse by K and T are substantially similar. Relying on State v. Sierra, 213 Conn. 422, 568 A.2d 448 (1990), however, the defendant urges that the specific acts of abuse against K and T differed in nature and duration so as not to fall within the common plan or scheme exception to the inadmissibility of prior misconduct evidence. See Conn. Code Evid. § 4-5. Moreover, the defendant contends that the trial court abused its discretion in determining that the probative value of K's testimony outweighed its prejudicial effect. We disagree with the defendant's arguments, which we address in turn.

At trial, the state sought to introduce, under the common plan or scheme exception, the testimony of K, who was twenty-one years old at the time of trial, regarding prior sexual abuse. The defendant filed a motion in limine to exclude K's testimony. After arguments from counsel, the trial court concluded, pursuant to State v. Kulmac, supra, 230 Conn. 43, that K's testimony was relevant and material to proving the defendant's common plan or scheme to abuse young girls sexually, and that the probative value of K's testimony outweighed its prejudicial effect. Accordingly, the trial court denied the defendant's motion in limine and allowed K to testify. The court limited the scope of K's testimony, however, by precluding the state from eliciting testimony regarding "unduly prejudicial" and irrelevant details of the defendant's abuse of K.

At trial, K testified that, from 1986 to January, 1994, the defendant had sexually molested her. K stated that, in the initial stages of the abuse, which commenced when K was between six and seven years old, the defendant would touch her genitals and force her to touch his genitals. K also stated that these incidents occurred between three and four times per week when K's mother would leave the house to run errands.

K testified further that when she was between the age of eight and nine years old, the defendant would force her to sit on his lap, while he was unclothed, and have her move back and forth. K also testified that when she was between nine and ten years old, the defendant began having penile-vaginal intercourse with her against her will three to four times per week. This would occur in various locations inside and outside of the home when the defendant and K were alone together. Additionally, K stated that, on at least one occasion, when she was eleven or twelve years old, the defendant had forced her to perform oral sex on him while in a car in a parking lot.

K testified that she did not tell anyone about the abuse because the defendant had warned her that no one would believe her and that she would be sent to a mental institution. K testified further that she did not report the sexual abuse to authorities until January, 1994, because she feared that the defendant would harm her, although she previously had informed a friend about the abuse.

A

We previously have observed that, "[a]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused." (Internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 659-60, 826 A.2d 1021 (2003); accord State v. Kulmac, supra, 230 Conn. 60; see also Conn. Code Evid. § 4-5. We have recognized exceptions to this general rule, however. Evidence of prior misconduct "may be admissible . . . for other purposes, such as to prove knowledge, intent, motive, and common scheme or design . . . ." State v. Nunes, 260 Conn. 649, 684, 800 A.2d 1160 (2002); see also Conn. Code Evid. § 4-5 (b); State v. Merriam, supra, 660. Accordingly, we have established a two-pronged test for determining the admissibility of prior misconduct evidence. Such evidence is admissible if: (1) it is relevant and material to at least one of the circumstances encompassed by the exceptions; and (2) its probative value outweighs its prejudicial effect. E.g., State v. Merriam, supra, 661; State v. Kulmac, supra, 61. In assessing whether prior misconduct evidence offered under the common plan or scheme exception satisfies the first prong of this test, we have required a determination that "the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness." (Internal quotation marks omitted.) State v. Merriam, supra, 662; accord State v. Kulmac, supra, 62.

We note that, in sexual abuse cases, we have construed liberally the standard for admitting prior misconduct evidence to demonstrate a common plan or scheme. E.g., State v. Merriam, supra, 264 Conn. 662; State v. Kulmac, supra, 203 Conn. 62. Moreover, we have emphasized that "[t]he primary responsibility for making these determinations rests with the trial court"; State v. Kulmac, supra, 61; and, therefore, "[w]e will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion." Id. With these principles in mind, we turn to the relevant case law.

In cases with analogous factual underpinnings to those in the present case, we have upheld the admission of testimony by victims of prior sexual abuse as evidence of a common plan or scheme. E.g., State v. Merriam, supra, 264 Conn. 664; State v. Kulmac, supra, 230 Conn. 63. In Merriam, the defendant, Robert Merriam, appealed his conviction for first degree and second degree sexual assault and risk of injury to a child in connection with...