State v. Prince A.

• Decision Date: 10 March 2020
• Docket Number: AC 41962
• Citation: 196 Conn.App. 413,229 A.3d 1213
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. PRINCE A.

196 Conn.App. 413

229 A.3d 1213

STATE of Connecticut

v.PRINCE A.^*

AC 41962

Appellate Court of Connecticut.

Argued January 9, 2020

Officially released March 10, 2020

John C. Drapp III, assigned counsel, for the appellant (defendant).

Melissa Patterson, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey, supervisory assistant state's attorney, for the appellee (state).

Lavine, Bright and Devlin, Js.

DEVLIN, J.

The defendant, Prince A., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), sexual assault in the fourth degree in violation of General Statutes (Rev. to 2009) § 53a-73a(a)(1)(A) and risk of injury to a child in violation of General Statutes § 53-21(a)(2). On appeal, the defendant claims that the trial court improperly admitted testimony of a constancy of accusation witness to refute any negative inferences the jury might have drawn from the victim's delay in reporting the sexual assault because that witness mistakenly believed that there had been no delay.¹ We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. The victim is the defendant's daughter. In 2010 or 2011, when the victim was either ten or eleven years old, the defendant sexually assaulted the victim while they were alone in his apartment. Initially, the victim did not report the assault because she felt uncomfortable and scared. A few years later, in 2013, the victim told a friend at school about the assault. Shortly thereafter, the victim met with Iris Adgers, a behavior technician at the victim's school, and described the assault. Following this meeting, the Hartford Police Department was notified of the assault and investigated the defendant.

The following procedural history also is relevant to this appeal. On November 13, 2017, the state charged the defendant with sexual assault in the first degree, sexual assault in the fourth degree, and two counts of risk of injury to a child, one count under § 53-21(a)(1) and one count under § 53-21(a)(2). Trial commenced on November 27, 2017.

During trial, the jury heard testimony from the victim. When the defendant's trial counsel, William Gerace, cross-examined the victim, he challenged her credibility and her delay in reporting the assault. Following the victim's testimony, the state offered Adgers as a constancy of accusation witness whose testimony, as the court later explained in a limiting instruction to the jury, was offered solely "to negate any inference that [the victim] failed to tell anyone about the sexual offense and, therefore, that [the victim's] later assertion could not be believed.... Constancy evidence is not evidence that the sexual offense actually occurred or that [the victim] is credible. It merely serves to negate any inference that because of [the victim's] assumed silence the offense did not occur." Adgers offered brief testimony confirming that the victim had reported the sexual assault to Adgers. Immediately following the state's direct examination of Adgers, the court gave a limiting instruction to the jury regarding constancy of accusation testimony. On cross-examination, Adgers testified that, as far as she knew, the victim had reported the assault contemporaneously, without delay.² Following Adgers' testimony, Gerace moved to strike her testimony, arguing that there was no justification for having a constancy of accusation witness testify when that witness testifies that there was no delay in the victim's reporting of the assault. The court denied the motion, noting that because the defendant had challenged the victim's credibility and her delay in reporting the assault, the state was permitted to present constancy testimony.

Following three days of evidence, the case was submitted to the jury. During its final charge to the jury, the court again offered a limiting instruction regarding Adgers' testimony. After deliberating, the jury found the defendant guilty of sexual assault in the first degree, sexual assault in the fourth degree, and one count of risk of injury to a child in violation of § 53-21(a)(2).³ The court then sentenced the defendant to serve a total effective term of seventeen years of imprisonment, followed by three years of special parole. This appeal followed.

Before turning to the claim on appeal, we set forth the applicable law governing the constancy of accusation doctrine and our scope and standard of review. The constancy of accusation "doctrine traces its roots to the fresh complaint rule ... [t]he narrow purpose of [which] ... was to negate any inference that because the victim had failed to tell anyone that she had been [sexually assaulted], her later assertion of [sexual assault] could not be believed.... [B]ecause juries were allowed—sometimes even instructed—to draw negative inferences from the woman's failure to complain after an assault ... the doctrine of fresh complaint evolved as a means of counterbalancing these negative inferences. Used in this way, the fresh complaint doctrine allowed the prosecutor to introduce, during the case-in-chief, evidence that the victim had complained soon after the [sexual assault]. Its use thereby forestalled the inference that the victim's silence was inconsistent with her present formal complaint of [assault].... In other words, evidence admitted under this doctrine effectively served as anticipatory rebuttal, in that the doctrine often permitted the prosecutor to bolster the credibility of the victim before her credibility had first been attacked.... The fresh complaint doctrine thus constituted a rare exception to the common-law rule that prohibited rehabilitative evidence in the absence of an attack on the [witness'] credibility." (Citations omitted; internal quotation marks omitted.) State v. Daniel W. E. , 322 Conn. 593, 618–19, 142 A.3d 265 (2016).

Presently, the constancy of accusation doctrine, as modified by our Supreme Court in Daniel W. E. , permits "the victim in a sexual assault case ... to testify on direct examination regarding the facts of the sexual assault and the identity of the person or persons to whom the incident was reported.... Thereafter, if defense counsel challenges the victim's credibility by inquiring, for example, on cross-examination as to any out-of-court complaints or delayed reporting, the state will be permitted to call constancy of accusation witnesses subject to [certain] limitations .... If defense counsel does not challenge the victim's credibility in any fashion on these points, the trial court shall not permit the state to introduce constancy testimony but, rather, shall instruct the jury that there are many reasons why sexual assault victims may delay in officially reporting the offense, and, to the extent the victim delayed in reporting the offense, the delay should not be considered by the jury in evaluating the victim's credibility."⁴ (Citation omitted; internal quotation marks omitted.) Id., at 629, 142 A.3d 265. A constancy of accusation witness is limited to testifying "only with respect to the fact and timing of the victim's complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim's complaint with the pending charge, including, for example, the time and place of the attack or the identity of the...