State v. A.M.

• Court: Connecticut Court of Appeals
• Writing for the Court: HARPER, J.
• Citation: State v. A.M., 156 Conn.App. 138, 111 A.3d 974 (Conn. App. 2015)
• Decision Date: 24 March 2015
• Docket Number: No. 34910.,34910.
• Parties: STATE of Connecticut v. A.M..

156 Conn.App. 138

111 A.3d 974

STATE of Connecticut

v.A.M.^* .

No. 34910.

Appellate Court of Connecticut.

Argued Oct. 16, 2014.

Decided March 24, 2015.

Bethany L. Phillips, for the appellant (defendant).

Jennifer F. Miller, special deputy 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).

LAVINE, ALVORD and HARPER, Js.

Opinion

HARPER, J.

The defendant, A.M., appeals from the judgment of conviction, rendered following a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–70 (a)(2), three counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2), two counts of risk of injury to a child in violation of General Statutes § 53–21(a)(1), sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2), and sexual assault in the fourth degree in violation of General Statutes § 53a–73a. On appeal, the defendant claims that (1) the trial court improperly denied his motion for a judgment of acquittal because there was insufficient evidence to sustain the jury's verdict, (2) he was denied his right to a fair trial as a result of prosecutorial impropriety that occurred during rebuttal argument, (3) the court improperly determined that the complainant's confidential records should not be disclosed to the defendant, (4) the court improperly permitted the state to reopen the direct examination of the complainant, (5) the court improperly allowed a video recorded forensic interview (forensic video) to be admitted into evidence under the tender years exception to the rule against hearsay and under the Whelan rule,¹ and (6) the court violated his rights under the federal and state constitutions when it admitted the forensic video, specifically, his right to confront the complainant under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).² We agree with the defendant in regard to his second claim, and, therefore, reverse the judgment of conviction and remand the case for a new trial.

The jury reasonably could have found the following facts. The defendant was dating the complainant's mother, H, and moved into H's house with the complainant, and H's two other children in the late summer of 2003. In August, 2009, the complainant told H's cousin, A.K., that the defendant had touched her inappropriately. Specifically, she told A.K. that the defendant inappropriately touched her buttocks while she was cleaning dishes. After A.K. alerted H about the allegations, H allowed the defendant to ask the complainant about the allegations, and he apologized if he “ever touched [her] in any way....”

In March, 2010, a family member of H went to the complainant's father, J, and spoke to him about the allegations. The next day, J spoke with the complainant and, during their conversation, the complainant cried and told him that the defendant had grabbed her buttocks. J reported the allegation to the Danbury Police Department and spoke to Officer Joseph Pastrana. After J reported the allegations to Pastrana, J and members of the Danbury Police Department visited the complainant's home in order to evaluate her well-being. At the home, Pastrana spoke to the defendant, who denied any wrongdoing, and the complainant spoke with a female officer and informed that officer that the defendant had touched her inappropriately. At this time, for her safety, the complainant was removed from the home for two nights.

Pastrana then contacted the Danbury Police Department youth bureau as well as the Department of Children and Families. The defendant provided a sworn statement to the youth bureau, in which he denied any wrongdoing and hypothesized that the allegations perhaps stemmed from his strict parenting style. Meanwhile, on March 25, 2010, Donna Meyer, a forensic interviewer and director of the Danbury Multi–Disciplinary Team (team), interviewed the complainant regarding the alleged sexual abuse. This interview was videotaped as well as transcribed. The complainant told Meyer of various events of sexual abuse by the defendant. The dates of these incidents initially were described to Meyer as occurring after August, 2009, and later were stated by the complainant to have occurred before such time. The present matter commenced with the execution of an arrest warrant on April 20, 2010.

The complainant further was examined on April 29, 2010, by Veronica Ron–Priola, a medical examiner for child abuse cases. Ron–Priola testified at trial that there was no physical evidence of sexual abuse, but stated that a lack of evidence would not necessarily be inconsistent with the complainant's allegations of sexual abuse.³

After this examination, Ron–Priola spoke to the team regarding her concern for the complainant.

The defendant's trial began on March 30, 2012, and concluded on May 3, 2012. The state called the complainant to testify. At this time, the complainant was twelve years old. The complainant initially stated that the defendant sexually assaulted her six or seven times by inappropriately touching her buttocks. Later during her testimony, the complainant stated that the defendant inappropriately touched her maybe two or three times. During cross-examination, the complainant stated that she had lied about what she had said to H, regarding the defendant. Later during trial, the complainant refused to testify to any other incident involving the defendant other than when he allegedly touched her buttocks. The defendant subsequently presented witnesses during trial to attack the complainant's credibility.

On May 3, 2012, the jury found the defendant guilty of attempt to commit sexual assault in the first degree, five counts of risk of injury to a child, sexual assault in the first degree, and sexual assault in the fourth degree. The defendant filed a motion for a judgment of acquittal, which was denied. Thereafter, the court sentenced the defendant to a total effective term of twenty years imprisonment, execution suspended after twelve years, followed by twenty years of probation with special conditions. On August 7, 2012, the defendant filed the present appeal. Additional facts will follow as necessary.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because the evidence was insufficient to support his conviction. We review this claim first due to the nature of the remedy. “[I]f the defendant prevails on the sufficiency claim, [he] is entitled to a directed judgment of acquittal rather than to a new trial.” State v. Moore, 100 Conn.App. 122, 126 n. 2, 917 A.2d 564 (2007). The defendant claims that because the forensic video was inadmissible as evidence and the complainant's testimony was inconsistent both in the forensic video and at trial, the evidence presented at trial was “insufficient to permit the jury to find him guilty beyond a reasonable doubt.” We disagree.

“Our standard of review for claims of insufficient evidence is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... [P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty.” (Internal quotation marks omitted.) State v. Cancel, 149 Conn.App. 86, 95, 87 A.3d 618, cert. denied, 311 Conn. 954, 97 A.3d 985 (2014).

“In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt ... because this court has held that a [trier's] factual inferences that support a guilty verdict need only be reasonable.” (Internal quotation marks omitted.) State v. Jordan, 314 Conn. 89, 106–107, 101 A.3d 179 (2014).

The defendant's sufficiency of the evidence claim is premised on whether the jury believed the complainant. “We also are mindful that [q]uestions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses.... Our review of factual determinations is limited to whether those findings are clearly erroneous.... We must defer to the [finder] of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. James E., 154 Conn.App. 795, 802, 112 A.3d 791 (2015). After weighing the credibility of the witnesses, it was within the sole province of the jury to make a determination on the witness' credibility in order to find against the defendant. On the basis of the foregoing, we conclude that there was sufficient evidence for the jury to have reached its verdict. Therefore, the defendant's insufficiency of the evidence claim fails.

II

Second, the defendant claims that he was denied his right to a fair trial as a result of prosecutorial...