State v. Juan C.

• Decision Date: 10 January 2017
• Docket Number: AC 37552
• Citation: 154 A.3d 39,170 Conn.App. 185
• Parties: STATE of Connecticut v. JUAN C.
• Court: Connecticut Court of Appeals

170 Conn.App. 185

154 A.3d 39

STATE of Connecticut

v.JUAN C.^*

AC 37552

Appellate Court of Connecticut.

Argued September 21, 2016

Officially released January 10, 2017

Heather N. Wong, certified legal intern, with whom was Glenn W. Falk, assigned counsel, for the appellant (defendant).

Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Richard J. Rubino, senior assistant state's attorney, for the appellee (state).

Keller, Prescott and West, Js.

WEST, J.

The defendant, Juan C., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a) (1), one count of risk of injury to a child in violation of General Statutes § 53–21 (a) (2),¹ and one count of risk of injury to a child in violation of General Statutes § 53–21 (a) (1).² On appeal, the defendant claims that the trial court, Bentivegna, J. , improperly (1) refused to grant his request for a continuance of his trial, and (2) denied his motion for a judgment of acquittal as to the first count, sexual assault in the first degree. We affirm the trial court's judgment in part and reverse the judgment in part.

The jury reasonably could have found the following facts. The defendant is N's³ biological father and, although N has always lived with her mother, she visited the defendant frequently between her birth in October, 1997, and 2005. During that time, both N and the defendant lived in New York. The defendant later moved to Hartford, and N did not see the defendant from 2005 until the summer of 2008, when he "popped back up" at the house of N's mother and asked to spend more time with N. N's mother agreed, and a few weeks later, in July, 2008, the defendant drove to New York to pick up N and brought her to his apartment in Hartford. N was ten years old at the time.⁴

At some point during the visit, while they were home alone, the defendant called N into his room to watch cartoons on television. The defendant was lying in his bed with only his boxer shorts on, and N was wearing a T-shirt, pajama pants, and underwear. N entered the bedroom, and the defendant asked her to lie on the bed with him, which she did. The defendant then asked N to move closer to him and lie on his chest, which she did. The defendant began rubbing N's back and buttocks over her clothing. He then put his hands under N's pajama pants and underwear and penetrated her vagina with his finger. While doing so, the defendant masturbated with his other hand. N then got off the bed and went back to her own room, sat on her bed, and watched television.

N called her mother at some point after the incident to tell her that she wanted to go home to New York, but did not disclose what had happened. The defendant claimed that he did not have enough money for gas to drive her home, so N stayed in Hartford for a few more days. After he brought her home, the defendant "disappeared" again, and N did not see him for another two years. N did not disclose to anyone that the July, 2008 incident had occurred until October, 2010, when she told her teacher and her mother. Subsequently, New York Child Protective Services (child protective services), the Connecticut Department of Children and Families (department), and the Hartford Police Department became involved, and the defendant was arrested.

Before the start of the evidentiary portion of the trial, the defendant requested a continuance due to the fact that he had received a department report that morning that mentioned the child protective services investigation, and he wanted time to obtain more information about the New York investigation. The court denied his request and proceeded to trial. At trial, N, her mother, a Hartford police officer, and a licensed clinical social worker testified for the state. At the close of the state's evidence and again at the close of his own evidence, the defendant moved for a judgment of acquittal as to count one, charging sexual assault in the first degree. The court denied the defendant's motion.

On July 17, 2014, the jury found the defendant guilty on all three counts. The court sentenced the defendant on October 27, 2014, to the following: twenty-five years incarceration with a mandatory minimum of five years incarceration, execution suspended after twelve years, and fifteen years of probation for the first degree sexual assault conviction; twenty years incarceration with a mandatory minimum of five years incarceration, execution suspended after twelve years, and fifteen years of probation for the risk of injury to a child conviction under § 53–21 (a) (2) ;⁵ and ten years incarceration, execution suspended after five years, and fifteen years of probation for the risk of injury to a child conviction under § 53–21 (a) (1). The court ordered all three sentences to run concurrently for a total effective sentence of twenty-five years incarceration, suspended after twelve years, and fifteen years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant's first claim on appeal is that the court erred in refusing to grant a continuance, which the defendant requested on the morning of trial to allow him to obtain newly discovered information about the child protective services investigation contained in the department protocol. Specifically, the defendant argues that the child protective services investigation records would likely contain material essential to his defense, which would cast doubt on the veracity of N's statements regarding the defendant's prior uncharged misconduct. The state argues that the court did not abuse its discretion in denying the defendant's request. We agree with the state.

The record reveals the following additional facts and procedural history relevant to this claim. In addition to the allegations that the defendant sexually assaulted N in Hartford in July, 2008, there are also uncharged misconduct allegations that the defendant sexually assaulted N in New York in 2005. The court allowed the state to question N at trial about this uncharged conduct, and she testified that during a visit in New York with the defendant in 2005, while N was seven years old, the defendant sexually assaulted her by fondling her vagina to see if she had "wet [her]self." N did not disclose this incident until October, 2010, when she also told her mother about the July, 2008 Hartford incident.

There was evidence presented at trial that, shortly after N's disclosure, her mother contacted child protective services in New York, which then opened an investigation into the matter. In an interview with child protective services social worker Kelly Dickinson, N disclosed information about the 2008 Hartford incident only, and nothing about the 2005 New York incident.⁶ Child protective services subsequently referred the case to the department because the only allegations were those arising from the Hartford incident.

Months before the beginning of trial, the defendant received from the state a department form, called Form 737 (form), which the department had sent to the Hartford Police Department to inform the police that the department was conducting an investigation into the July, 2008 Hartford incident.⁷ The form states, inter alia, that "there is a companion investigation in the [s]tate of New York as a result of current allegations," and also that N's mother "reported [to the department] that [N] also reported that when [the defendant] was residing in New York he used to touch her as well." The form also included the name and telephone number of the child protective services social worker assigned to investigate the allegations. The defendant's counsel stated that the form was "original discovery [material] going back to pretrial" and that he had possessed this prior to the date of trial. There is no evidence that the defendant tried to contact the child protective services social worker or requested any records regarding that investigation.⁸

On the morning of the start of trial, the defendant received a copy of a the department's investigation protocol (protocol). The protocol contained case notes from a department social worker and included comments made by Dickinson, who had referred the case to the department. According to the case notes, Dickinson reported to the department that N "did not make any disclosures of any incidents taking place in the Orange County [New York] jurisdiction. [N] did not make any disclosures about anything happening in the Bronx area either; she did not want to talk about it. [Dickinson] reported that [N stated that] nothing happened in Orange [County], and that it happened in Connecticut, however, she was not clear. [Dickinson] reported that [N] stated that she was too young when she visited in the Bronx and she did not want to talk about it. [Dickinson] reported that 'they,' meaning her and the police in New York, did not want to press her for [an] interview due to the fact that they did not know [how] many more people she would have to talk to."

Upon receiving the protocol, the defendant objected to proceeding with trial and requested a continuance in order to procure additional investigation materials from New York. The defendant's counsel stated: "There is an indication—it's a hearsay indication because it's the author's report about what he or she was told by what appeared to be state of New York authorities with [child protective services] who are investigating this claim because of [N] and her mother living in New York and that's where the disclosure was made. And that indicates that [N] did make some disclosure to the New York authorities about the incident that we're presently on trial for.... [I]n terms of the uncharged misconduct, [N] specifically declined to discuss that issue with the New York authorities. I do not know the reason for that. There's some suggestion by the ...