State v. Acosta
State v. Acosta
Opinion
**407
The primary question presented in this appeal is whether evidence of uncharged sexual misconduct that occurred twelve years before a charged offense is too remote to be admissible pursuant to the factors set forth in
State
v.
DeJesus
,
The Appellate Court set forth the following facts and procedural history. "One afternoon in the spring of 2009, A, 4 who was twelve years old and in sixth grade, had returned from school and was watching television at her home in Danbury. She lived with her parents and older brother, but she was alone at the time. Her parents were at work and were not expected until 6 or 7 p.m.
"When A's dog started barking, she looked outside and saw her uncle, the defendant, approaching the front door. He had not previously visited their home, and he did not live in the area. She opened the door and greeted him with a hug and a kiss because 'he was family.' After chatting for a bit, A took the defendant for a tour of the house. He asked where her parents were, and she told him that they would not be home until 6 p.m. The tour concluded in her bedroom, where she proceeded to show the defendant her snow globe collection.
*674 They continued to talk about the family, generally 'catching up,' when he told her that she looked beautiful. He then sat down on her bed and told her to do the same. The defendant began to rub her leg, shoulder and arms, again repeating that she looked beautiful.
"A was beginning to feel uncomfortable with the situation on her bed when the defendant instructed her to remove her shirt. She complied, and he unhooked her bra and started rubbing her breasts. At that point, he took her hand and placed it on his genital area on the **409 outside of his pants. He told her to get undressed while he removed his own clothing. A 'just followed what he said' because she did not know if he would hurt her. The defendant spread her legs and engaged in penile-vaginal intercourse with her. Approximately fifteen minutes later, after again asking what time her parents would be home, the defendant got dressed, told her 'to tell [her] parents that he said "hi," ' and then left the house. A was 'confused' and 'embarrass[ed],' and decided that she would not tell anyone about what had happened between her and the defendant.
"In January, 2012, while A was on a trip to New York City with two of her close friends, the girls decided to play a game of 'confessions.' A knew she could trust her girlfriends and told them that her uncle, the defendant, had sexually assaulted her. They all were upset, and A made her friends promise not to disclose the incident to anyone. Approximately one week later, however, one of the girls reported the incident to her guidance counselor at school, and A was asked to speak with her guidance counselor and a social worker. After she confirmed that she had been sexually assaulted by the defendant, an investigation commenced, and the defendant was arrested and charged with the three crimes [of] which he was convicted." (Footnote added.) Id., at 775-76,
"Prior to trial, the state filed a notice of its intent to offer evidence of the defendant's prior misconduct involving three additional female family members. The alleged incidents took place in 1990, 1997, and 2006, when the prepubescent girl family members were between nine and ten years of age. On the first day of trial, outside the presence of the jury, the parties discussed the state's request. Defense counsel voiced his opposition to the proffered testimony with respect to the 1990 and the 1997 incidents. Id., at 777,
"With respect to the 1990 incident, the state indicated that the young girl at issue was the defendant's niece and that the defendant began having sexual conversations with her when she was nine or ten years old. Those inappropriate sexual conversations continued for a few years. Defense counsel argued that the conduct was too remote in time and that there had been no sexual contact, as had been alleged in the other incidents. The court, after stating the legal standard for the admission of prior uncharged sexual misconduct set forth in
*675
State
v.
DeJesus , [supra,
"With respect to the 1997 incident, the proffered evidence was that the defendant grabbed the hand of J, his nine year old niece, and placed it on his genital area. Defense counsel argued: '1997 is distant, so we do object, although you have an allegation of actual contact. And I will admit that's ... as far as I'm concerned, a much closer call. I'm not going to concede that it should come in because I think on top of the other one, it is prejudicial.' The court ruled that the proffered evidence was relevant and that its probative **411 value outweighed the prejudicial effect from its admission.
"At trial ... J was called as a state's witness to testify about the defendant's prior misconduct in 1997. J testified that her uncle, the defendant, sexually molested her when she was nine years old. She testified that she and her two brothers were at her grandmother's house, where they often visited and where the defendant would pay them to do chores. The defendant sent the brothers away 'to do something,' and J remained in the kitchen alone with the defendant. After her brothers left, the defendant placed a long white tube sock around her eyes and then grabbed her hand and placed it on his genital area. Once J realized what it was, she yanked her hand back and pulled the sock from her eyes. She told the defendant that she was going to tell her parents what had happened, and she ran from the kitchen." (Footnote omitted.) Id., at 777-79,
"[T]he jury returned a verdict of guilty on all three counts of the substitute long form information. The court accepted the verdict and rendered judgment accordingly. The defendant was sentenced to thirty years incarceration, execution suspended after seventeen years, followed by twenty-five years of probation with various conditions." Id., at 777,
"It is well established that we review the trial court's decision to admit evidence ... for an abuse of discretion." (Internal quotation marks omitted.)
State
v.
Smith
,
Strong public policy concerns justify this exception for prior sexual misconduct. See
State
v.
DeJesus , supra,
Accordingly, this court has long held that "[e]vidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan where the prior offenses (1) are not too remote in time; (2) are similar to the offense
**413
charged; and (3) are committed upon persons similar to the prosecuting witness."
6
State
v.
Esposito
,
Drawing on the aforementioned public policy justifications, this court in
DeJesus
reaffirmed that "evidence of uncharged sexual misconduct properly may be admitted in sex crime cases to establish that the defendant had a tendency or a propensity to engage in aberrant and compulsive criminal sexual behavior if: (1) the trial court finds that such evidence is relevant to the charged crime in that it is not too remote in time, is similar to the offense charged and is committed upon persons similar to the prosecuting witness;
7
and (2) the trial court concludes that the probative value of such evidence outweighs its prejudicial effect." (Footnote added.)
State
v.
DeJesus , supra,
Because we have repeatedly emphasized the connectedness of the three DeJesus relevancy factors, we decline to adopt a bright line rule for remoteness, or a rule that establishes a presumption that after ten years the uncharged conduct is too remote. In fact, in the present case, the uncharged sexual misconduct is not too remote in and of itself. In our cases predating DeJesus , 8 we recognized that although "increased remoteness in time does reduce the probative value of prior misconduct evidence";
**415
State
v.
Romero , supra,
In the present case, twelve years elapsed between the uncharged and charged conduct.
State
v.
Acosta
, supra,
The similarity of the conduct involved in the charged and uncharged incidents also supports the trial court's conclusion that the uncharged misconduct evidence was relevant under
DeJesus
. "It is well established that the victim and the conduct at issue need only be similar-not identical-to sustain the admission of uncharged misconduct evidence."
State
v.
George A
.,
For example, in
State
v.
McKenzie-Adams
, supra,
**417
misconduct ceased only after she rebuffed his sexual advances and reported his behavior to her mother and brother." Id., at 531, 532,
In the present case, the charged and uncharged misconduct are sufficiently similar. In the initial stages of both incidents, the defendant placed the victim's hand on his penis.
State
v.
Acosta
, supra,
*679 Therefore, the similar conduct in the charged and uncharged incidents supports the relevancy of the uncharged misconduct evidence.
The victims were sufficiently similar to render the 1997 misconduct relevant under DeJesus . As with conduct, "the victim[s] ... at issue need only be similar-not identical-to sustain the admission of uncharged misconduct evidence."
**418
State
v.
George A.,
supra,
Finally, we observe that the public policy underpinnings of
DeJesus
are particularly relevant here. The defendant's misconduct occurred when the victims of the 1997 misconduct and the charged misconduct were alone in private places. See
State
v.
Acosta
, supra,
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
We granted the defendant's petition for certification to appeal from the judgment of the Appellate Court, limited to the following issue: "Did the Appellate Court properly conclude that the trial court, in a case alleging sexual assault, did not abuse its discretion in concluding that evidence of uncharged misconduct by the defendant twelve years previously was not 'too remote' for admissibility purposes under
State
v.
DeJesus , [supra,
The relevant time interval for measuring remoteness is the time elapsed between the charged and uncharged misconduct. See, e.g.,
State
v.
Romero
,
Because we conclude that the trial court did not abuse its discretion, we need not address the defendant's argument that the admission of the uncharged sexual misconduct evidence by the trial court amounts to harmful error.
In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e.
As noted by the Appellate Court, the state's proffer of evidence with respect to the 2006 incident provided: " 'On or about July, 2006 ... when [the witness C] was approximately ten years of age, the defendant pulled his penis out of his pants and told her [to] hold his penis because it was like candy and to suck his penis.' C's testimony at trial corroborated the facts as alleged in the state's proffer.' "
State
v.
Acosta
, supra,
Under this rule, this court routinely sustained the admission of uncharged sexual misconduct evidence where the three factors warranted it. See, e.g.,
State
v.
Jacobson
,
Although these relevancy factors may be traced to earlier cases, as discussed, we attribute them to
DeJesus
throughout this opinion, as it has become customary to do so. See, e.g.,
State
v.
Devon D.
,
Although this court has evaluated remoteness claims several times since
DeJesus
, none of those cases afforded an opportunity to consider a bright line limitation for remoteness, because the intervals between the charged and uncharged misconduct were too short. See
State
v.
Devon D.
,
For this reason, we also are not persuaded by the defendant's argument that the 1997 uncharged sexual misconduct is inadmissible because it is substantially less egregious than the charged misconduct.
Reference
- Full Case Name
- STATE of Connecticut v. Roberto ACOSTA
- Cited By
- 12 cases
- Status
- Published