State Of Conn. v. Lynch.

123 Conn.App. 479

1 A.3d 1254

STATE of Connecticut

v.Edward P. LYNCH.

No. 29622.

Appellate Court of Connecticut.

Argued April 9, 2010.

Decided Aug. 31, 2010.

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Hope C. Seeley, with whom, on the brief, was Benjamin B. Adams, Hartford, for the appellant (defendant).

Melissa L. Streeto, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Lisa Herskowitz, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and HARPER and ROBINSON, Js.

DiPENTIMA, C.J.

The defendant, Edward P. Lynch, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21(a)(1) and public indecency in violation of General Statutes § 53a-186(a)(2). On appeal, the defendant claims that (1) the trial court improperly admitted irrelevant and prejudicial evidence of prior uncharged misconduct, (2) the court deprived him of his right to due process by failing to issue, sua sponte, a limiting instruction immediately after admitting the prior misconduct evidence, and that the court's limiting instruction was deficient, (3) the court denied him his right to due process by failing to declare a mistrial after the prosecutor referenced prejudicial and irrelevant aspects of the defendant's prior misconduct that the court had excluded from evidence, and (4) prosecutorial impropriety during closing argument deprived him of his right to due process. We disagree, and, accordingly, affirm the judgment of conviction.

The jury reasonably could have found the following facts. In June, 2006, the defendant lived in a home adjacent to, and in very close proximity with, the eight year old victim's ¹ home in East Hartford. The defendant's home had a deck accessible by a full length, clear glass door that provided an unobstructed, direct view to a children's inflatable play pool in the victim's backyard. The view from the glass door was such that one could see clearly a person standing in the victim's backyard, and a person standing in the victim's backyard could see clearly through the defendant's glass door into the defendant's kitchen.

On June 20, 2006, the victim was at home being supervised by her babysitter. Sometime during the afternoon, the victim was left unattended briefly while she was playing in the children's pool located in the backyard of her home. At this time, the victim noticed the defendant standing naked while inside the glass door to the deck. The defendant looked at the victim and began “scratching, rubbing, and pulling” his “private part” for several minutes before the victim left the pool to notify her babysitter, who then telephoned the victim's mother at work. The victim's mother immediately called 911.

After interviewing the mother and the victim, two East Hartford police officers visited the defendant's home to further investigate the incident. The defendant answered the front door wearing only a towel and promptly admitted to standing naked in the glass doorway. The officers arrested the defendant, and he was charged with risk of injury to a child and public indecency.

A jury trial commenced on November 14, 2007. During the trial and outside the presence of the jury, the state proffered evidence of an incident of the defendant's prior misconduct through the testimony of three individuals to prove the intent element of the public indecency charge. ² Melinda Rivera testified that on the evening of August 16, 2001, she visited her mother-in-law who lived on the ground floor of a home immediately next to that of the defendant. Rivera testified that while using the bathroom, she looked out the window and briefly made eye contact with a man dressed in a wig and women's clothing who was standing on the defendant's deck. This individual smiled at Rivera, exposed his penis and began masturbating, at which point Rivera left the bathroom and called the police. Rivera further testified that she was unable to identify the man she saw masturbating. The police, however, returned after interviewing the defendant that night and showed Rivera articles of clothing that she identified as those the man on the deck was wearing.

Stephen Grossi, the East Hartford police officer who responded to Rivera's call, testified to having interviewed the defendant as part of the investigation of the incident. During the initial interview, the defendant admitted to possessing a wig and women's clothing and retrieved them from his truck to show Grossi. Grossi took this clothing into custody and showed it to Rivera, who verified it was the same clothing that she had seen the man on the deck wearing.

Finally, John Rinaldi testified that he had lived with the defendant since November, 1997, at his home in East Hartford and that only the two of them were living in this home on the night of August 16, 2001. Rinaldi further testified that on the night of August 16, 2001, he did not masturbate on the deck and that he did remember the police coming to his home that night.

The state proffered this testimony to establish the defendant's intent to arouse or satisfy his sexual desires on June 20, 2006, an element of the public indecency charge. The court found that the evidence of prior uncharged misconduct was probative of the defendant's intent on June 20, 2006. The court further concluded, however, that any detailed reference to the women's clothing or the wig would result in unfair prejudice to the defendant. Accordingly, the court allowed the evidence of the defendant's prior misconduct to be heard by the jury but prohibited counsel or witnesses from describing the clothing worn by the defendant with any particularity, other than to say he wore “distinctive clothing” or was “scantily clad.” The jury then heard this same testimony from Rivera, Grossi and Rinaldi without any reference to a wig or women's clothing. Thereafter, the jury found the defendant guilty on both counts, and the court sentenced the defendant to seven years imprisonment, execution suspended after two years, with sex offender registration required for ten years. This appeal followed.

I

The defendant first claims that the court improperly admitted irrelevant and prejudicial evidence of prior uncharged misconduct. Specifically, the defendant contends that the court improperly admitted the testimony of Rivera, Grossi and Rinaldi as evidence of the defendant's intent to arouse or satisfy his sexual desires on June 20, 2006, an element of § 53a-186 necessary for conviction of public indecency. The defendant argues that the testimony was inadmissible because (1) it failed to establish sufficiently that he was the individual who committed the prior uncharged misconduct, (2) the prior uncharged misconduct was irrelevant to his intent on June 20, 2006, and (3) its probative value was outweighed by its prejudicial effect. We are not persuaded.

We begin our analysis by setting forth the well settled standard of review. “Evidence of a defendant's uncharged misconduct is inadmissible to prove that the defendant committed the charged crime or to show the predisposition of the defendant to commit the charged crime.... Exceptions to this rule have been recognized, however, to render misconduct evidence admissible if, for example, the evidence is offered to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime.... To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis.... First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.... Since the admission of uncharged misconduct evidence is a decision within the discretion of the trial court, we will draw every reasonable presumption in favor of the trial court's ruling.... We will reverse a trial court's decision only when it has abused its discretion or an injustice has occurred.” (Citations omitted; internal quotation marks omitted.) State v. Millan, 290 Conn. 816, 830-31, 966 A.2d 699 (2009).

A

The defendant first argues that the testimony of Rivera, Grossi and Rinaldi failed to establish sufficiently that he was the individual who committed the prior uncharged misconduct. The defendant directs our attention to State v. Wilson, 199 Conn. 417, 449, 513 A.2d 620 (1986), and asserts that evidence of prior uncharged misconduct only can be relevant if the evidence is first shown sufficient to establish that the defendant, in fact, committed the prior act. The defendant refers to the fact that Rivera never was able to actually identify the man she saw masturbating on the defendant's deck the night of August 16, 2001, and argues that her subsequent identification of cross-dressing paraphernalia that was turned over by the defendant was so tenuous an identification that the court abused its discretion by determining the evidence to be probative. We disagree.

In Wilson, the defendant appealed from his conviction of manslaughter in connection with the death of his girlfriend's baby daughter, claiming that the trial court improperly had admitted evidence of prior injuries sustained by the victim without first establishing that the defendant caused these injuries. Id., at 448, 513 A.2d 620. On appeal, our Supreme Court determined that the trial court improperly admitted evidence that at the time of the victim's death she had several broken ribs and a kidney injury that she had suffered two weeks previous because “[t]here was nothing in the record to indicate how or by whom these injuries were caused.” Id., at 449, 513 A.2d 620. In so holding, our Supreme Court stated that “before [uncharged prior misconduct] evidence can have any...