State v. Jorge P.

• Court: Connecticut Supreme Court
• Writing for the Court: PALMER
• Citation: State v. Jorge P., 308 Conn. 740, 66 A.3d 869 (Conn. 2013)
• Decision Date: 11 June 2013
• Docket Number: No. 18711.,18711.
• Parties: STATE of Connecticut v. JORGE P.

308 Conn. 740

66 A.3d 869

STATE of Connecticut

v.JORGE P.^*

No. 18711.

Supreme Court of Connecticut.

Argued Oct. 26, 2012.

Decided June 11, 2013.

Pamela S. Nagy, special public defender, for the appellant (defendant).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Colleen P. Zingaro, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA and HARPER, Js. ^**

PALMER, J.

Following a jury trial, the defendant, Jorge P., was found guilty of two counts of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2), seven counts of risk of injury to a child in violation of General Statutes § 53–21(a)(1) and seven counts of risk of injury to a child in violation of § 53–21(a)(2).¹ The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective term of thirty-two years incarceration and lifetime sex offender registration. The defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. State v. Jorge P., 124 Conn.App. 99, 118, 4 A.3d 314 (2010). We granted the defendant's petition for certification to appeal, limited to the issue of “[w]hether the Appellate Court properly found that the defendant's objection to the admission of expert testimony was unpreserved, and, if not, whether the expert opined on ultimate issues....” State v. Jorge P., 301 Conn. 912, 19 A.3d 1259 (2010). We agree with the Appellate Court that defense counsel's objection was not preserved, and, therefore, we decline to review the defendant's claim that the state's expert improperly expressed an opinion on an ultimate issue. 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. “The victims, S and G, are sisters who were born in 1993 and 1997, respectively. At the time of trial in 2007, S was fourteen years old and G was ten years old. Between 2000 and 2002, the victims lived with their parents and younger brother in a second floor apartment in a multifamily home on W Street. The victims' aunt, C, the defendant, who is C's boyfriend, their three children, and numerous other family members lived in the first floor apartment. In 2002, the victims, with their parents, moved to a house on W Avenue. In 2003, C and the defendant moved to a house on S Avenue.

“While the victims lived at W Street, both of their parents worked. Their mother regularly took them to the defendant's apartment in the mornings before school started to be watched by C until their school bus came. S would normally watch television in the bedroom of one of her cousins. On many occasions, the defendant would take her to a rarely used interior front staircase of the multifamily home and touch her. Specifically, the defendant would pull down both his and S's pants, make S face the bottom of the stairs, touch her vagina, and rub his penis on her buttocks and against her vagina. S testified that this would happen ‘most of the days of the week, but it wasn't like every single day, but it would happen very often.’ Afterward, the defendant would give S toys, stickers or candies so she would not tell anyone about the incidents. S recalled two specific incidents of touching by the defendant on W Street. One incident occurred when the defendant abruptly stopped touching her when he heard the doorknob turn at the top of the stairs. On that occasion the defendant pushed S aside, which caused her to cut her ‘pinky’ on some mirrors that were on the stairs. Another incident occurred in the summer. On that occasion, when S went to the basement to get a scooter, the defendant followed her, and started touching her and engag[ing] in penile-vaginal intercourse with her. Afterward, when S went to the bathroom, she felt something on her leg that was like a ‘white jelly kind of thing.’ She felt a wetness in her pants and, after using the toilet, saw a condom in the toilet.

“The defendant continued this behavior after the victims' family moved out of the apartment on W Street in 2002. S recalled three specific incidents of touching while visiting her cousins at the defendant's house on S Avenue, where [the defendant] had moved in 2003. One incident occurred when the defendant picked up S and G to take them to an airport because C was returning from a trip. Before going to the airport, the defendant took them to S Avenue and would not let S leave until she allowed him to touch her. The defendant penetrated her vagina digitally and rubbed his penis on her buttocks. Another incident occurred when the defendant took S and G to a carnival. Before taking them to the carnival, the defendant took them to S Avenue and told S that he would pay for the tickets and tokens only if she allowed him to touch her. During this incident, while playing hide-and-seek, G walked in on the defendant while he was touching S. G testified that she saw the defendant's hand in S's pants and knew it was inside her vagina ‘because it happened to me also.’ Another incident occurred when the defendant took S to a [department] store and allowed her to get a [compact disc] and [a] poster as late birthday gifts. After making the purchases, the defendant refused to give them to S unless she allowed him to touch her. After the defendant touched S, he gave the gifts to her.

“The defendant also touched G at his house on S Avenue approximately ten or fifteen times. G could recall only a few specific incidents. The defendant always gave her toys, stickers or candies after touching her. The first incident occurred when G spent the night at C's house at S Avenue. The defendant called G into his room and put his finger ‘a little inside’ her vagina. After the incident, the defendant gave G bubblegum.

“All of the incidents occurred between 2000 and 2005. S and G first disclosed the defendant's conduct in 2006. At that time, S was sick with a high fever and stomach ache. S's mother indicated her intention to take S to the emergency room. G wanted to accompany S and her mother to the emergency room so she could get stickers, but her mother refused. G then responded, ‘when ... people touch you, they give you stickers and candies.’ After further questioning, both S and G disclosed that the defendant gave them toys, stickers or candies after touching them. In 2007, [S] and G's guardian ad litem referred them to Veronica Ron–Priola, a [pediatrician who specializes in child physical and sexual abuse], for a physical examination, because none had been done previously. A physical examination by Ron–Priola revealed that G had a mild protrusion of the urethra, which was normal [for girls her age], and that S had [a] complete transection of the hymen, which was indicative of blunt trauma penetration [of] the vagina.” State v. Jorge P., supra, 124 Conn.App. at 102–104, 4 A.3d 314. Followinga jury trial, the defendant was convicted on all counts of the information.

The defendant appealed from the judgment of conviction to the Appellate Court, claiming, inter alia, that “he was deprived of a fair trial because the [trial] court impermissibly allowed Ron–Priola to testify, both directly and indirectly, as to the ultimate issue of whether S and G had been sexually abused.” ²Id., at 105, 4 A.3d 314. The Appellate Court declined to review this claim, concluding that it was not properly preserved because defense counsel had failed to object to Ron–Priola's testimony at trial. See id. Specifically, the Appellate Court determined that, although defense counsel had raised concerns that Ron–Priola might testify as to whether S and G had been sexually abused, defense counsel was afforded an opportunity to examine Ron–Priola outside of the presence of the jury for the purpose of addressing those concerns. See id., at 105–106 n. 5, 4 A.3d 314. According to the Appellate Court, defense counsel's failure to object to Ron–Priola's testimony, either at the time of her voir dire testimony or thereafter when Ron–Priola testified before the jury, rendered the defendant's claim unpreserved.³ See id. On appeal to this court following our grant of certification, the defendant challenges the Appellate Court's determination that his claim is unreviewable for lack of preservation. In essence, he contends, contrary to the conclusion of the Appellate Court, that defense counsel properly objected to Ron–Priola's testimony, prior to her voir dire examination, on the ground that she would testify on an ultimate issue, and the trial court overruled that objection. The defendant further maintains that, once the trial court overruled the objection, defense counsel was not required to object again, whenever Ron–Priola expressed an opinion on an ultimate issue in her testimony before the jury, because any such objection would have been futile. We disagree with the defendant that his claim is preserved.

The following facts are necessary to our resolution of the defendant's claim. At trial, the state called Ron–Priola to testify with respect to her physical examination of S and G and as to certain statements that S and G had made to her. On two occasions before Ron–Priola took the stand, however, defense counsel objected to her testimony. The first such occasion was during the state's direct examination of S, when the deputy assistant state's attorney (prosecutor) asked S whether she had had a medical examination and, if so, the name of the examining physician. S responded that Ron–Priola had examined her. At this point, defense counsel objected and asked to be heard outside the presence of the jury. After the court excused the jury from the courtroom, defense counsel informed the court that she intended to file a motion in limine to preclude Ron–Priola'stestimony and, therefore, that the court should prohibit the state from eliciting any...