State v. Zillo

• Decision Date: 02 November 2010
• Docket Number: No. 30998.,30998.
• Citation: 5 A.3d 996,124 Conn.App. 690
• Parties: STATE of Connecticut v. Geovanny ZILLO.
• Court: Connecticut Court of Appeals

5 A.3d 996

124 Conn.App. 690

STATE of Connecticut

v.Geovanny ZILLO.

No. 30998.

Appellate Court of Connecticut.

Argued Sept. 2, 2010.

Decided Nov. 2, 2010.

Timothy F. Sullivan, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence D. Mariani, Jr., senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and BEACH and BEAR, Js.

BEAR, J.

The defendant, Geovanny Zillo, appeals from the trial court's judgment of conviction, following a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2), one count 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(1) and one count of risk of injury to a child in violation of § 53-21(2). ¹ On appeal, the defendant claims that (1) the court erroneously admitted 2188 photographs into evidence and (2) he was denied his constitutional rightto a fair trial on the basis of prosecutorial impropriety. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, are relevant to our resolution of the issues on appeal. The family of the eleven year old victim in this case,² all of whom emigrated to theUnited States from China, owned a Chinese restaurant that the defendant frequented during 1998 and early 1999.³ During this time, the defendant became friendly with the victim and her family, often assisting the children with their homework and with the English language. The defendant was invited to family gatherings and holiday celebrations, and he purchased several gifts for the family, including a computer for the children and a $500 translator. The victim's parents eventually became concerned about the attention that the defendant was showing the victim, especially his attempts to speak with her privately, and the family told the defendant that he no longer was welcome at the restaurant. Accordingly, the defendant stopped going to the restaurant.

After the defendant stopped going to the restaurant, he began to follow the victim and to pick her up as she waited for the bus to take her to school. The defendant would take the victim to a house where he would sexually assault her. He also took her to a wooded area to take photographs of her, and he took her to a McDonald's restaurant. The victim testified that the defendant, whom she called G-Bunny, repeatedly sexually assaulted her when she was eleven years old. The defendant made the victim remove her clothing, kissed her breasts, performed oral sex on her, digitally penetratedher vagina and her anus, licked her anus, made her hold his erect penis in her hand, made her urinate into his mouth so that he could taste her urine to see if it was as "sweet" as she and attempted to make her perform oral sex on him. The defendant instructed the victim not to tell anyone about his behavior, and he told her that he wanted to marry her. He also gave her money.

In 2005 or 2006, the defendant established an account on the social web site Myspace.com (MySpace) using the name AnnaLuckyOne, where he purported to be an Asian female and included a photograph of an unknown Asian female on his profile. He soon contacted the victim, who also had a MySpace account, and he attempted to establish a relationship with the victim by telling her that he was a young Asian girl. The defendant, acting as this young Asian girl, subsequently told the victim that the defendant was AnnaLuckyOne's friend and asked if she would be willing to resume a friendship with him. Suspicious that her new friend really was the defendant and not another young Asian female, the victim panicked and went to see her school counselor and her dormitory parent in whom she confided that the defendant previously had sexually assaulted her. Soon thereafter, the victim filed a police report, and a warrant was issued for the defendant's arrest. The defendant was tried on eight counts as set forth earlier in this opinion; he elected to be tried by a jury.

The jury found the defendant guilty on all eight counts as charged. The court accepted the jury's verdict and sentenced the defendant to a total effective term of thirty years imprisonment, execution suspended after fifteen years, with fifteen years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion in limine and permitted the state tointroduce into evidence 2188 photographs of adult Asian women that the police had found on an external hard drive, which was confiscatedfrom the defendant's automobile pursuant to a search warrant. He argues that all of these photographs, with the exception of three photographs of one woman who was unclothed,⁴ were innocuous photographs of fully clothed adult women of Asian descent. He further argues that these photographs were irrelevant to the charges that he faced, charges that involved an eleven or twelve year old child, that the photographs were obtained in 2006, some eight years after the crimes alleged, and that the introduction of these photographs to the jury was highly prejudicial. He argues that the jury could have concluded that "because the defendant possessed these [photographs] in 2006, he ha[d] a proclivity to Asian women and, because of that proclivity, he committed the charged offenses [eight] years earlier against a child who happened to be Chinese." In response, the state argues that "the trial court did not abuse its broad discretion in concluding that these photographs were admissible because they tend[ed] to establish the fact of the defendant's obsession with Asian females, and also in concluding that evidence of this obsession, in turn, tended to corroborate the testimony of the victim, as well as other witnesses, regarding the defendant's fixation with the eleven to twelve year old Asian victim.... The jury reasonably could have viewed such evidence, when considered in conjunction with all the other evidence, as tending to corroborate the victim's testimony that the defendant did, in fact, eventuallyengage in the prohibited sexual, and other, acts with the child." Although we agree with the defendant that the court abused its discretion in admitting the 2188 photographs into evidence, we conclude that the defendant has failed to show that the improper admission was harmful in that it substantially affected the jury's verdict.

Initially, we set forth the applicable standard of review. "Our analysis of the [defendant's] ... [claim] is based on well established principles of law. The trial court's ruling on the admissibility of evidence is entitled to great deference ... [and] will be overturned only upon a showing of a clear abuse of the court's discretion." (Internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 769-70, 991 A.2d 1086 (2010). "Despite this deferential standard, the trial court's discretion is not absolute.... Thus, [i]n reviewing a claim of abuse of discretion, we have stated that [d]iscretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors." (Citation omitted; internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 627, 930 A.2d 628 (2007).

The following additional facts are relevant to our resolution of the defendant's claim. The defendant filed a motion in limine to preclude, inter alia, the state from offering into evidence 2188 photographs of adult Asian women that the police had obtained from his external hard drive.⁵ Three of these photographs containedanimage of one unidentified Asian female, who was unclothed.⁶ The remaining 2185 photographs were facial images of unidentified adult Asian women, all of whom appeared to be fully clothed.⁷ Additionally, there was no evidence as to when the defendant had downloaded these images, only that the police had obtained them in 2006, eight years after the defendant had last had physical contact with the victim. The state objected to the defendant's motion, arguing that the photographs were relevant to show that the defendant had a sexual interest in Asian females. The court agreed with this argument and further found that the potential prejudice from the admission of these photographs was minimal. We conclude that the court abused its discretion in admitting the photographs. We further conclude, however, that the defendant has failed to demonstrate that the improper admission was harmful error.

Section 4-1 of the Connecticut Code of Evidence provides: " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence." As it is used in our code, relevance encompasses two distinct concepts, namely, probative value and materiality. Id., at § 4-1, commentary; State v. Jeffrey, 220 Conn. 698, 709, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3041, 120 L.Ed.2d 909 (1992). "Conceptually, relevance addresses whether the evidence makes the existence of a fact material to the determination of the proceeding more probable or less probable than it would be without the evidence.... In contrast, materiality turns upon what is at issue in the case, which generally will be determined by thepleadings and the applicable substantive law.... If evidence is relevant and material, then it may be admissible." (Citations omitted; emphasis in...