State v. Fernando V.
State v. Fernando V.
Opinion
*352
**203
This is a certified criminal appeal from an Appellate Court decision reversing a judgment of conviction arising out of allegations by the complainant, B, that her stepfather, the defendant Fernando V., sexually assaulted her repeatedly over a period of years while she was in middle school and high school. The Appellate Court reversed the judgment of conviction on the ground that the trial court improperly precluded the defendant from calling the complainant's longtime boyfriend, P, as a witness regarding his observations of certain aspects of B's behavior that the state's expert witness had testified were common symptoms of child sexual assault. See
State
v.
Fernando V.
,
**204 I
The following facts are relevant to this appeal. B moved to Stamford from Mexico when she was nine years old to live with her mother, brother, and the defendant, her stepfather. The defendant adopted B in 2004, when she was ten years old, and he later petitioned for her to obtain permanent residency in the United States. When B initially came to Stamford, the family lived with B's grandmother and uncle, but eventually her grandmother moved back to Mexico. B testified that she was often alone with the defendant after her grandmother's departure, and he began to act inappropriately by touching her breasts. B told her mother about the defendant's inappropriate behavior. B's mother confronted the defendant, but he denied any wrongdoing and said B was confused.
In 2006, when B was nearing her thirteenth birthday, the family moved to Norwalk. B testified that the defendant continued to touch her inappropriately after the move. According to B, she told her mother about the continuing sexual misconduct, but the defendant again denied the allegations when confronted. B testified that the abuse escalated when the defendant forced her to have sexual intercourse with him in the hallway bathroom one afternoon. She testified that the defendant thereafter continued to touch her inappropriately or to force her to have sexual intercourse on a regular basis, sometimes as often as once per week. B said that the abuse continued until approximately 2011, when she was sixteen or seventeen years old.
B explained at trial that she did not disclose immediately to her mother that the defendant was forcing her to have sex with him because she was scared of what her mother would think. She eventually disclosed the abuse to her mother in 2011, however, when her mother directly asked B whether the defendant had forced her **205 to have sex. B and her mother then *353 called the police, which resulted in the present criminal case.
The defendant was charged with one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), one count of sexual assault in the second degree in violation of § 53a-71 (a) (4), and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). 1 The evidence against the defendant consisted primarily of the testimony of B and her mother, who testified as a constancy of accusation witness and also offered evidence of B's behavior during the relevant time period. Both B and her mother testified that B achieved good grades, participated in extracurricular activities, maintained employment without excessive absences, and continued to enjoy reading books and pursuing musical interests. B's mother also testified that she did not notice any personality changes in B when she was twelve or thirteen years old, but she did observe that B's disposition changed in the year before the defendant's arrest. "[S]he was more withdrawn, and I saw that she would stay in her room," "locked up," explained B's mother.
Toward the end of its case-in-chief, after B and her mother had testified, the state called an expert witness, Larry M. Rosenberg, a licensed psychologist and the clinical director of the Child Guidance Center of Southern Connecticut. Rosenberg testified about "delayed disclosure," which describes a commonly observed phenomenon in sexual abuse cases that occurs when a victim does not inform anyone of the sexual abuse for a period of time, sometimes lengthy, despite the **206 suffering and trauma experienced as a result of being abused.
The origin of the present appeal can be traced to the point in Rosenberg's testimony when he was asked by the state to opine about behavioral issues other than delayed disclosure. More specifically, Rosenberg was asked by the state about symptoms exhibited by victims of child sexual assault who have made a disclosure. Rosenberg answered that there were a variety of symptoms commonly observed in such victims, including changes in behavior, disassociation, withdrawal, depression, heightened anxiety, bad dreams, flashbacks, sleep interruption, and changes in cognitive functioning. Rosenberg elaborated the point on cross-examination, explaining that depression can manifest itself in changes in mood, irritability, and angry outbursts. He stated, "[t]he list goes on, you know, bad dreams, all sorts of things." 2 Rosenberg's expert testimony apparently was offered by the state to help the jury understand the significance of the prior testimony of B and her mother, in a manner consistent with the state's objective at trial, which was to establish the defendant's guilt. The expert testimony about delayed disclosure would help to explain why B did not immediately report *354 the most severe abuse to her mother; the testimony about common symptoms of trauma would assist the jury in understanding why B had become more withdrawn prior to the defendant's arrest.
After the conclusion of the state's case-in-chief, the defense attempted to discredit the state's version of **207 events by presenting the testimony of P, B's longtime boyfriend. Upon hearing that B and P were in a relationship, the trial court excused the jury to hear the state's objection that P's testimony was not relevant to the issue at hand. With the jury out of the courtroom, the defense made the following offer of proof relating to the admissibility of P's testimony about B's behavior:
"[Defense Counsel]: When you say you're in a relationship, are you-do you consider yourself boyfriend and girlfriend?
"[P]: Yes.
"[Defense Counsel]: And have you continuously gone out with her, or been in a relationship with her, as boyfriend and girlfriend, for four years?
"[P]: Yes, I have.
"[Defense Counsel]: Have there been any breaks in the relationship?
"[P]: No, there have not.
"[Defense Counsel]: Now, in the time period that you've been going out, as boyfriend and girlfriend, with [B], have you noticed any significant behavioral issues with her?
"[P]: No, not really.
"[Defense Counsel]: Have you noticed any pronounced eating disorders?
"[P]: No, I have not.
"[Defense Counsel]: Have you noticed any suicidal thoughts?
"[P]: No, I have not.
"[Defense Counsel]: Have you noticed any severe depression?
"[P]: No, I have not.
**208 "[Defense Counsel]: Have you noticed any eating disorders?
"[P]: No, I have not.
"[Defense Counsel]: Have you noticed any anger or outbursts or violence, by her?
"[P]: No, I have not.
"[Defense Counsel]: Have you noticed any trouble with her focusing on issues or tasks at hand?
"[P]: No, I have not.
"[Defense Counsel]: And, to your knowledge, do you know if her grades have slipped, in any way, in the four years you've known her?
"[P]: No, I don't think so.
"[Defense Counsel]: And, in the four years that you've known her, have you noticed any type of interruption in her playing of the flute?
"[P]: No, I have not.
"[Defense Counsel]: And, since September, 2011, have you noticed any of the things that I just mentioned, occurring with [B]?
"[P]: No, I have not."
The defense argued that P's testimony regarding B's behavior was admissible because it was relevant in two ways: first, to impeach the credibility of B's mother, who had testified that B had become more withdrawn, and, second, as direct evidence regarding the occurrence or nonoccurrence of the behavioral changes that the state's expert witness had testified are commonly exhibited by child victims of sexual assault. The latter ground in particular was twice referenced by defense counsel in colloquy with the trial court. The state, for its part, argued categorically that the testimony was not relevant and **209 pointed out that P was not qualified to offer testimony on the *355 subject because he was not an expert witness. The state also argued that the evidence did not directly impeach the testimony of B or her mother. In addition, the state noted its concern that it could be prejudicial for the jury to hear testimony about B's romantic relationship with P.
The trial court ruled that P's testimony was inadmissible in its entirety. The court stated that "[t]he relevance of this testimony ... is collateral, at best." With respect to impeachment, it found that "[i]mpeachment is not, by this evidence, extrinsic evidence. It lends itself to-it's likely to confuse the jurors. It's not probative of any issues.... I don't see any impeachment, based upon what I've heard on this record .... [An] [o]ffer of proof has been made. It's on the record, should the matter be reviewed. It's there for the Appellate Court to look at. But before the jury, it's confusing. It's not probative, and ... the objection is sustained." Therefore, P's testimony was not presented to the jury.
The jury returned a verdict of guilty on two counts of sexual assault in the second degree and two counts of risk of injury to a child. The trial court sentenced the defendant to an effective term of ten years of incarceration and ten years of special parole. The defendant appealed from the judgment of conviction on the ground that the trial court improperly excluded P's testimony from the jury's consideration. 3
**210
State
v.
Fernando V.
, supra,
II
The state first argues that the Appellate Court improperly found that the trial court had abused its discretion
**211
by excluding P's testimony. The state does not rely on the grounds it raised in the trial court or the Appellate Court but instead contends, for the first time, that P's testimony regarding B's behavior properly was excluded by the trial court because it was cumulative of other evidence in the record indicating that B "was basically 'an ordinary high school girl' ... dating, getting good grades, participating in extracurricular activities and holding down a job." (Citation omitted.) This is a new argument. The state never argued in the trial court that P's testimony about B's behavior should be excluded because it was cumulative, nor did the trial court base its ruling on that ground. The argument also was not raised or briefed by the state as an alternative ground for affirmance in the Appellate Court, and the Appellate Court, like the trial court, did not address the argument as part of its admissibility analysis. On this record, we conclude that the state has failed to preserve its belated legal theory of the inadmissibility of P's behavioral testimony based on cumulativeness, made for the first time in this court, and we decline to review the claim. Because the state has abandoned all claims other than its contention that P's testimony was cumulative; see, e.g.,
Samelko
v.
Kingstone Ins. Co.
,
"This court is not bound to consider claims of law not made at the trial.... In order to preserve an evidentiary ruling for review, trial counsel must object properly.... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.... Once counsel states
**212
the authority and ground of [the] objection, any appeal will be limited to the ground asserted." (Internal quotation marks omitted.)
State
v.
Gonzalez
,
Our rules of reviewability in the evidentiary context are prudential in nature, not jurisdictional, but they serve essential purposes and promote vital principles, and only in the most compelling situation will we depart from them. Legal claims, arguments and objections regarding evidentiary matters ordinarily must be made at the right time and place, because that time and place is when the opposing party has the opportunity to respond to the point or to cure the defect, and it also is when the trial judge will be required to adjudicate the disputed issue within the particularized context defined by the circumstances then existing. Adhering
**214
to the requirement of specificity and contemporaneity promotes fairness between the parties and helps to ensure that trial and appellate judges remain optimally positioned to perform their respective roles. There are, of course, exceptional circumstances when this court will "consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court."
5
*358
Perez-Dickson
v.
Bridgeport , supra,
The Appellate Court determined that P's testimony improperly was excluded because it was relevant and "probative of the central issue of this case"-B's credibility.
State
v.
Fernando V.
, supra,
III
We now must decide whether the improper exclusion of P's testimony was harmless. The state makes two arguments: first, that the excluded evidence was cumulative, and, second, that the case against the defendant was very strong and any inconsistencies in B's testimony were explored on cross-examination and considered **215 by the jury. We disagree with both contentions. We view the record as the Appellate Court did and concur in its conclusion that the exclusion of P's testimony cannot be considered harmless on this record.
The law governing harmless error for nonconstitutional evidentiary claims is well settled. "When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.... [W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the [defendant's] case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.... Most importantly, we must examine the impact of the ... evidence on the trier of fact and the result of the trial.... [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury's verdict was substantially swayed by the error.... Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict." (Internal quotation marks omitted.)
State
v.
Favoccia
,
The state seriously underestimates the potential impact of the excluded testimony. As the Appellate Court aptly pointed out, "the state's case here was not
**216
an exceedingly strong one" in light of the absence of "corroborating physical evidence or any witnesses to the alleged sexual assaults."
6
*359
State
v.
Fernando V.
, supra,
To understand more particularly the nature of the potential harm caused by the exclusion of P's testimony, it is important to examine how that testimony became relevant to the state's case at trial. Evidently concerned that a lay jury might draw unwarranted adverse inferences about B's credibility from the fact that B had delayed telling her mother about being sexually assaulted, the state chose to present expert testimony at trial from Rosenberg explaining that delayed reporting is common in child sexual abuse cases and describing the psychological and emotional factors that make such a delay understandable. See
State
v.
Favoccia
, supra,
Rosenberg's testimony became the lens through which the jury reasonably could have viewed the most critical issues in the case. The state presumably elicited his testimony about "behavioral symptoms" because it wanted to lend significance to B's mother's testimony that B had become more withdrawn than usual in the year prior to the defendant's arrest. In fact, the state argued this very inference in its closing argument to the jury when it suggested that B's withdrawal was a sign that she had been sexually abused. 7 Rosenberg's **219 testimony was double-edged, however, because it provided the defense with an evidentiary basis to develop a jury argument that B's allegations of abuse should not be believed. The defense sought to raise the specter of reasonable doubt by arguing that B had not exhibited any of the many behavioral symptoms of trauma that the state's own expert said were typical and common among sexual abuse victims. Rosenberg's testimony, in other words, provided the defense with an opening to argue that the absence of such symptoms equates to an absence of abuse. The potential significance of P's testimony must be seen in this light.
With this framework in place, it becomes evident why the improper exclusion of P's testimony was not harmless. First, and most significantly, P's testimony was not cumulative because it would have presented the jury with
new
material, not heard from any other witness, regarding certain indicia of sexual abuse identified by Rosenberg. See
State
v.
Favoccia
, supra,
Further compounding the harm arising from the improper exclusion of P's testimony is the fact that the state affirmatively used B's mother's testimony about B's "withdrawal" and Rosenberg's testimony about behavioral symptoms of trauma in its arguments to the jury. In its closing argument, the state attempted to focus the jury's attention on one aspect of B's behavior to support B's allegation that she had been sexually assaulted by reminding the jury that B's mother had "testified that even she noticed [B] was acting more withdrawn, spending more time alone in her room." In rebuttal closing argument, the state again pointed out that "there was testimony that showed that [B] became more withdrawn before the arrest, that she spent more time to herself. [B] herself testified that after the arrest, she felt relief,
*362
that she could go home and not worry.... Rosenberg testified that symptoms from a traumatic experience, such as child sexual assault, can sometimes occur many years later." In our view, "[s]uch heavy reliance [on the withdrawal-related testimony] ... expose[s] its central role in persuading the jury to convict, as the government clearly understood that [the] statement was a powerful weapon in its arsenal." (Internal quotation marks omitted.)
United States
v.
Stewart
, supra,
After seeking to persuade the jury to infer guilt based on the mother's testimony about one of the behavioral symptoms identified by Rosenberg, the state cannot fairly argue that it was harmless to exclude P's conflicting testimony that he saw no significant behavioral
**222
changes or depression in B. To the contrary, the exclusion of P's testimony deprived the defense of the ability, in its own summation to the jury, to undercut the state's argument by reminding the jury that P, who was among B's closest friends for the four years leading up to trial, had observed
none
of the many symptoms of sexual abuse that Rosenberg had identified. Cf.
State
v.
Sawyer
,
Lastly, the state argues, and the dissent agrees, that the defendant's ability to cross-examine B and her mother renders the error harmless. This argument ignores two important points. First, Rosenberg testified
after
B and her mother, and, therefore, the behavioral template provided by him was not available to the defense during the cross-examination of those key witnesses. More broadly, and perhaps more importantly, a criminal defendant is not constrained to present his defense through witnesses selected by the state. "If the accused [is] guilty, he should [nonetheless] be convicted only after a fair trial"; (internal quotation marks omitted)
State
v.
Andrews
,
The judgment of the Appellate Court is affirmed.
In this opinion PALMER and D'AURIA, Js., concurred.
DISSENT
ROBINSON, C.J., with whom KAHN, J., joins, dissenting.
I respectfully disagree with the conclusion in part III of the majority opinion, which concludes that the Appellate Court properly determined that the trial court's exclusion of testimony from P, the longtime boyfriend of B, the victim in this case, requires reversal of the judgment of conviction rendered against B's stepfather, the defendant, Fernando V.
1
State
v.
Fernando V.
,
**225 Because I would reverse the judgment of the Appellate Court, I respectfully dissent.
I begin by noting my substantial agreement with the factual and procedural history recited in part I of the majority opinion. I also agree with part II of the majority opinion, which declines to consider the state's arguments that the trial court did not abuse its discretion when it precluded
*364
P from testifying.
2
Finally, I agree
**226
that, "[w]hen an improper evidentiary ruling is
*365
not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.... [W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.... Most importantly, we must examine the impact of the ... evidence on the trier of fact and the result of the trial.... [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury's verdict was substantially swayed by the error.... Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict." (Internal quotation marks omitted.)
State
v.
Eleck
,
Given these arguments, P's proposed testimony must be understood in the context of the earlier testimony of the state's expert witness, Larry M. Rosenberg, who is the clinical director of the Child Guidance Center of Southern Connecticut, an outpatient mental health clinic. Rosenberg had testified about the concept of delayed disclosure of sexual abuse. In connection with that topic, Rosenberg also testified about behavioral signs of the trauma resulting from sexual assault-such **230 as *367 withdrawal, depression, sleep disturbances, and declines in cognitive and educational functioning. The defendant sought to use P's testimony to establish that B had not manifested those behavioral signs that Rosenberg had testified were consistent with the trauma of sexual abuse.
Although P's testimony might have been crucially important standing alone, its relative value in this case is significantly diminished for two reasons. First, whether a person shows behavioral signs of having been sexually abused is by no means definitive evidence on that point. As Rosenberg testified during both direct and cross-examination, some sexual assault victims might show those trauma signs relatively soon, while other victims might never show any of those trauma signs. Some victims might experience no change in their ability to function in the near term, and might not manifest those signs until many years later, if at all.
Second, and more significantly, P's excluded testimony regarding the absence of these signs was consistent with that of B and G during both direct and cross-examination. B testified initially on direct examination that she had enrolled in college after graduating high school, and that she had maintained a grade point average of approximately 2.9 at both schools. She also testified that she had not experienced any lengthy absences from, or other problems at school or work because of behavioral or psychological reasons, noting that her only extended absence from high school was the result of a medical problem. B testified further that she was an active member of the college band, and that nothing had prevented her from pursuing that activity. B also contradicted her direct examination testimony that she was unable to have male friends, admitting that she had boyfriends during high school and that the defendant had not forbidden her from seeing them or having them as guests in the house.
**231 G testified similarly, stating that there had been no changes in B's personality around the ages of twelve or thirteen years old, when the abuse escalated from improper touching to intercourse, because "she was always a little shy." Although G had testified on direct examination that the defendant was strict with respect to B's grades, and preferred her to go out with female rather than male friends, she also confirmed that B had boyfriends during high school, and that the defendant had not interfered with those relationships. Moreover, while G testified that, in the year prior to the defendant's arrest in this case, B had acted "more withdrawn and ... that she would stay in her room," she then testified on cross-examination that B's activities had not changed, as she continued to enjoy reading and playing the flute from middle school into college. G also testified that B had always had a "timid" demeanor since coming to the United States as a child, and that it had not worsened during high school, although she would "stay in her room more often, locked up."
The testimony of B and G provided ample support for the defendant's theory of the case, even without P's similar testimony on point. In addition to emphasizing inconsistencies in the time, place, and nature of B's allegations, 5 the defendant's *368 closing argument relied on the testimony of B and G to argue in detail that B had not manifested behaviors consistent with sexual abuse **232 trauma. For example, defense counsel described as "contradictory" B's testimony on direct examination that "she was unable to have guy friends," and that the defendant "didn't like her talking to boys," observing that she had "admitted" during cross-examination that "she did have two boyfriends during high school, and [that the defendant] never objected to her having these boyfriends. That he never forbade her ... from seeing them, coming over to the house or in any way opposed to these relationships ...." Defense counsel also emphasized that B had not testified to any "effect on [her] grades," that she had "maintained a 2.9 through 3.0 consistently from middle school to college. She testified that her employment was never affected. There was no disruption in her extracurricular activities. She plays the flute, continues to play the flute. [G] also testified the same, that there was no changes, that [B] continued in those activities."
Defense counsel argued further that there was "no testimony by [B] that there was any behavioral changes. There's no testimony from [B] that she experienced any depression. No testimony from her that she experienced any suicidal ideations. No testimony that she experienced any eating disorders. No testimony from her that she had any violent tendencies. And more importantly, no evidence that after the alleged arrest of [the defendant], in 2011, did any of this come up. Which, as the State's own expert [witness] said, commonly is something that occurs. There's no evidence of any therapy or counseling ever received by [B]."
Turning to G's testimony, defense counsel argued that it was inconsistent with that of B, positing that G had "stated that [the defendant] did not like [B] talking to boys, but admitted [B] had boyfriends since freshman year in high school. And there was no evidence by [G] that [the defendant] ever objected to [B] having those relationships with those boys." Defense counsel further **233 emphasized that G's "testimony is noncorroborative of [B's] in that she didn't see any behavioral issues with [B]. Claimed [B] was always a bit timid, even since she came to the [United States] and there was no alleged inappropriate behavior. And that there was really no change. Didn't see any of [B's] grades slip. Didn't see [B] stop playing the flute. And never saw any inappropriate behavior, whatsoever, during the entire time that they were together, between [B] and [the defendant]."
Defense counsel then compared this testimony by B and G to Rosenberg's testimony: "[Rosenberg] stated that it is more common to have some behavioral issues in alleged victims, especially in their adolescent years, and especially after the disclosure is made. He said it's common. It happens. But there's no evidence of any of that."
Similarly, defense counsel also argued that the testimony of Vicki Smetak, a Norwalk Hospital pediatrician who had examined B after her disclosure, was not corroborative. The defense argued that Smetak had made "no physical findings of assault, whatsoever," and had stated "that there was no suicidal ideation or extreme behavioral *369 issues that she noted during the exam."
I disagree with the majority's conclusion that, because "P's testimony was necessary for the jury to assess B's credibility," it therefore "cannot be harmless error to remove from the fact finder the very tools by which to make a credibility determination ...." (Internal quotation marks omitted.) That conclusion is belied by the record in the present case, insofar as the jury had numerous tools by which it could assess the credibility of B's allegations, all of which were well highlighted by the defendant's closing argument. Specifically, the cross-examination of B and G, along with Smetak's testimony, gave the defendant ample support for his behavioral arguments, even without P's testimony.
**234 Further, the persuasive value of the behavioral arguments is diminished by Rosenberg's testimony that signs of sexual abuse may or may not be present in victims in any event, rendering P's testimony not a significant addition to the evidence in the defendant's favor.
I also disagree with the majority's reliance on the lack of physical evidence in the present case in support of its conclusion that the improper exclusion of P's testimony was harmful because the state's case was not strong. I acknowledge that, "[a]lthough the absence of conclusive physical evidence of sexual abuse does not automatically render the state's case weak where the case involves a credibility contest between the victim and the defendant ... a sexual assault case lacking physical evidence is not particularly strong, especially when the victim is a minor." (Citation omitted.)
State
v.
Ritrovato , supra,
**235 averred the following: "What I remember is that I went to look for my dad but the room was locked . I was just about to walk away and then I heard him call me and I just saw my sister putting on her belt." (Emphasis added.)
D's statement to the police also averred the following regarding a second incident: "I was ... looking for my dad and my sister told me he was in the garage. I just said ok because I already checked there. So I told my friend to walk downstairs and
*370
I stayed upstairs and all I saw was my dad leave my sisters room." In my view, D's testimony and statement significantly strengthened the state's case, as they provided the circumstantial smoke to the fire of B's testimony.
7
See
**236
State
v.
Beavers
,
The harmlessness of the exclusion of P's testimony is even more apparent when the present case is considered in juxtaposition with those cases in which the central issue was the complainant's credibility and this court has found harmful evidentiary error to exist. First, P's proffered testimony did not pertain directly to the veracity of the complainant or the allegations themselves,
**237
but only to whether B had shown certain behaviors that Rosenberg had testified might-or might not be-present
*371
in a person experiencing the trauma of having been sexually assaulted. In contrast, cases where this court has found harmful evidentiary error involve improper evidence that more directly bolsters or undercuts the veracity of the complainant's testimony. See
State
v.
Favoccia
,
Finally, I observe there was no report of jury deadlock in this case to "indicate that the fact finder itself did not view the state's case against the defendant as particularly strong."
State
v.
Angel T.
,
Accordingly, I respectfully dissent.
Although §§ 53-21 (a) and 53a-71 (a) have been the subject of amendments since 2006; see, e.g., Public Acts 2007, No. 07-143, §§ 1 and 4 (amending §§ 53a-71 [a] and 53-21 [a], respectively); the year in which the conduct that formed the basis of the charges in the present case began, those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of §§ 53-21 (a) (2) and 53a-71 (a) (1) and (4).
Rosenberg testified that these various symptoms "don't necessarily appear in everyone and that ... even when they do appear, [they appear] in different kinds of ways." He also said that it was "more common than not" that an abuse victim between the ages of twelve and eighteen would exhibit "some sort of behavioral difficulties," and he identified depression as among the more common of the "behavioral characteristics" observed in those victims.
The defendant also raised an additional evidentiary claim in the Appellate Court relating to the trial court's exclusion of a different portion of P's testimony, which the defense had offered at trial for the purpose of impeaching B and her mother's earlier testimony that the "defendant had tried to prevent the complainant from associating with boys of her own age."
State
v.
Fernando V.
, supra,
The dissent suggests that this conclusion is in "apparent conflict" with a line of cases holding that this court may rely on any grounds supported by the record to affirm the judgment of a trial court, including alternative evidentiary grounds raised for the first time on appeal. We perceive no such conflict, however, for precisely the reason identified by the dissent when it observes that one of the keys to resolving this issue is "whether the alternative ground is one [on which] the trial court
would have been forced to rule in favor of the
[
party prevailing at trial
]." (Emphasis added; internal quotation marks omitted.) Footnote 2 of the dissenting opinion, quoting
State
v.
Cameron M.
,
The state, as the appellant here, was not required to file notice in this court that it intended to raise an alternative ground for affirmance pursuant to Practice Book § 84-11, because that provision applies only to an appellee who wishes to raise an alternative ground to affirm the judgment of the Appellate Court in a certified appeal. See
Vine
v.
Zoning Board of Appeals
,
The state contends that there was not a complete absence of corroborating evidence of the alleged sexual assaults, because B's brother "testified that he saw B in the defendant's bedroom, putting on her belt." We disagree with the state's characterization of the strength of the brother's testimony for two reasons. First, B's brother did not witness any inappropriate interactions at any time. Second, the brother's testimony was confused, contradictory and difficult to follow. The record reflects that the state continually had to refresh the brother's recollection with a sworn statement given prior to trial, which was eventually admitted into evidence under
State
v.
Whelan
,
We also disagree with the dissent's suggestion that we are "attempt[ing] to rationalize an innocent explanation for [the defendant's] sneaky behavior ... [with] his teenage stepdaughter ...." See footnote 7 of the dissenting opinion. We are not "rationalizing" anything; we are assessing the strength of the state's case on the basis of the evidence properly adduced at trial. We fail to see how the testimony of B's brother "significantly strengthened the state's case ...."
The dissent's assertion that the excluded evidence "did not pertain directly to the veracity of the complainant or the allegations themselves" fails to acknowledge the direct bearing of this evidence on the assessment of B's credibility under the particular circumstances of this case. A reasonable juror, unsure of whether to believe the allegations, could have used the behavioral symptoms identified by Rosenberg as a guide to decide whether the allegations of abuse were credible. This presumably is the very reason that the state elicited that expert testimony in the first place. It is unfair now, in assessing the potential significance of the evidence offered by the defense for the very purpose of taking advantage of the state's inferential model, to say that the logic was weak and inconsequential.
This same point demonstrates the flaw in the dissent's suggestion that the defendant suffered no disadvantage because defense counsel was able to present a jury argument based on the testimony of B and her mother even without the testimony of P. It is inaccurate to posit that no harm ensued from the trial court's evidentiary ruling just because defense counsel tried his best using the scraps of state-supplied evidence available to him. The trial court's erroneous evidentiary ruling was harmful because the defense's jury argument would have been materially and significantly stronger had he been able to make use of P's excluded testimony.
Specifically, the defendant was convicted, after a jury trial, of one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), one count of sexual assault in the second degree in violation of § 53a-71 (a) (4), and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). See
State
v.
Fernando V.
,
The majority declines to consider the state's sole argument in this certified appeal in support of the trial court's evidentiary ruling, namely, that the trial court properly excluded P's testimony on the ground that it was cumulative of other evidence in the record, in part based on its conclusion that the state's claim is an unpreserved alternative ground for affirming the judgment of the trial court. As the state acknowledges, its arguments in support of excluding P's testimony have been somewhat of a moving target throughout this case. In its brief to this court, the state argues only that P's testimony was cumulative of that of B and G, which is an argument that it inaccurately contends that it raised in its Appellate Court brief as an
evidentiary
matter. In choosing to pursue this cumulativeness argument, the state appears to have abandoned the contentions that it made before the trial and Appellate Courts-namely, that P's testimony was not relevant, including for impeachment purposes, and that P lacked the expertise necessary to opine on whether B had shown any behavioral signs of sexual abuse trauma. See
State
v.
Fernando V.
, supra,
In declining to address the state's cumulativeness argument, the majority concludes that the state failed to preserve it before the trial court and, thus, may not now present it as an alternative ground on which to affirm the judgment of the trial court, insofar as whether evidence is cumulative is a discretionary determination, stating that "[w]e cannot determine whether the trial court abused an exercise of discretion that it neither made nor was asked to make." In declining to reach the state's claim, the majority links our well established cases holding that challenges to evidentiary rulings are limited to the grounds asserted before the trial court; see, e.g.,
State
v.
Miranda
,
This approach, however, appears to be in at least some tension with the "well established [proposition] that this court may rely on any grounds supported by the record in affirming the judgment of a trial court."
State
v.
Burney
,
In its brief, the state does not attempt to tackle this apparent conflict in the case law, citing an Appellate Court decision,
State
v.
Pierce
,
I do, however, note this conflict in the case law for future consideration because of the prudential concerns that it continues to raise with respect to the public's interest in maintaining legally correct judgments and avoiding the prospect of costly retrials, with concerns of ambuscade minimized because we would be upholding the trial court's judgment, rather than upsetting it. See
Perez-Dickson
v.
Bridgeport , supra,
Beyond the factual record, I also respectfully disagree with certain legal aspects of the majority's harmless error analysis, which I believe improperly conflate the distinct standards that govern admissibility and harm with respect to whether P's testimony was cumulative for purposes of harm. See
State
v.
Guilbert
,
As the state notes, the defendant did not ask P if he had noticed whether B had become increasingly withdrawn.
These arguments derived from the defendant's cross-examination of B about inconsistencies in her allegations and memories. Turning to the subject of when the family moved to Norwalk and the defendant started having sexual intercourse with B, B testified that she could not remember how old she was when the molestation progressed from inappropriate touching to actual intercourse, or exactly what time of year that had happened. The defendant also established inconsistencies in B's testimony, namely: (1) that she had testified that the first incident of intercourse was in the home's bathroom, but had told the police that the first incident took place in the defendant's bed, and (2) that she had told the police that intercourse occurred on a weekly basis when she had testified that it was less than weekly.
In
State
v.
Whelan
,
I disagree with the majority's assessment of D's testimony as not corroborative of that of B on the grounds that (1) D "did not witness any inappropriate interactions at any time," and (2) D's "testimony was confused, contradictory and difficult to follow." With respect to the fact that D did not actually witness the defendant molesting B, his testimony about their secretive behavior-including the fact that she was putting her belt on
after
B and the defendant had been secreted in a locked bedroom-nevertheless is circumstantial evidence corroborative of, at the very least, inappropriate conduct. Although the defendant posited during closing arguments that the large size of the house and the lack of any apparent embarrassment or distress by the victim supported an innocent explanation for what had happened, I instead suggest that the majority's similar attempt to rationalize an innocent explanation for this sneaky behavior of the defendant vis-á-vis his teenage stepdaughter reminds me of the old West Virginia aphorism that: "You can bake your shoes in the oven, but that won't make them bread." See also, e.g.,
State
v.
Otto
,
Although I acknowledge that D was required to have his memory refreshed and that his trial testimony was sufficiently inconsistent to support admission of his statement to the police under
State
v.
Whelan
,
Because the error in this case was one of exclusion, rather than inclusion, I acknowledge that any error was not amenable to cure by instruction. See
State
v.
Favoccia
, supra, 306 Conn. at 815-16,
Reference
- Full Case Name
- STATE of Connecticut v. FERNANDO V.
- Cited By
- 39 cases
- Status
- Published