State v. Cramer

57 Conn. App. 452

749 A.2d 60

STATE OF CONNECTICUT v. MICHAEL CRAMER

(AC 18443)

Appellate Court of Connecticut.

Argued December 16, 1999.

Officially released April 25, 2000.

Schaller, Hennessy and Dupont, JS.

Hubert J. Santos, with whom were Patrick S. Bristol and, on the brief, Hope C. Seeley, for the appellant (defendant). Carolyn K. Longstreth, senior assistant state's attorney, with whom were Kimberley N. Perrelli, assistant state's attorney, and, on the brief, James E. Thomas, state's attorney, for the appellee (state).

Opinion

HENNESSY, J.

The defendant, Michael Cramer, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), risk of injury to a child in violation of General Statutes § 53-21 and making a false statement in the second degree in violation of General Statutes § 53a-157b. On appeal, the defendant claims that the trial court (1) made improper evidentiary rulings concerning hearsay and the foundation for a piece of evidence, (2) improperly instructed the jury and (3) improperly sentenced him. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In May or June, 1996, the fourteen year old victim and a friend were at a restaurant where they encountered the defendant and a friend of the defendant. The defendant had been the victim's boyfriend for about two weeks. The defendant said he was staying at a motel and wanted to get something from his room. The four then proceeded to the motel, where, after a few minutes, the defendant and the victim went into the bathroom and, according to the victim, had nonconsensual sex. Neither of the friends heard any noise in the bathroom except one loud thump on the wall of the bathroom. Other facts will be discussed where relevant to the issues in this case.

I

The defendant claims first that the court made improper evidentiary rulings. He claims that the court (1) improperly allowed the statement of the victim's friend into evidence, (2) abused its discretion by allowing the victim's mother to testify as to a statement made by the victim and (3) improperly allowed the jury to inspect the contents of a bag the state offered into evidence.

"Our standard of review regarding challenges to a trial court's evidentiary rulings is that these rulings will be overturned on appeal only where there is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Cole, 50 Conn. App. 312, 330-31, 718 A.2d 457, cert. granted on other grounds, 247 Conn. 937, 722 A.2d 1217 (1998). It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court's rulings will not be disturbed on appellate review absent abuse of that discretion.... Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court's ruling.' ... Wright v. Hutt, 50 Conn. App. 439, 445, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998)." (Internal quotation marks omitted.) State v. Orhan, 52 Conn. App. 231, 237-38, 726 A.2d 629 (1999).

A

The defendant's first evidentiary claim is that the court improperly allowed the written statement of the victim's friend into evidence for substantive use under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), because the declarant lacked personal knowledge of the facts contained in the statement. We disagree. The following additional facts are necessary to our resolution of this claim. The victim's friend gave a written statement to the police in which she stated that shortly after leaving the motel on the night of the incident, the victim said that she had been raped. During the trial, the friend was called as a witness by the state and testified that the victim told her that she had been raped "but she did not mind." The state then introduced into evidence the written statement as a prior inconsistent statement because it did not contain any mention of the victim saying that she did not mind having been raped.

The defendant claims that this statement was admitted as a Whelan statement and that its admission was improper because the declarant lacked personal knowledge of the facts relayed in the statement. The state responds that this claim should be rejected because the statement was admitted only for impeachment purposes. Prior inconsistent statements may be introduced either to impeach a witness; State v. Otto, 50 Conn. App. 1, 8, 717 A.2d 775, cert. denied, 247 Conn. 927, 719 A.2d 1171 (1998); or for substantive use where the statement is in writing, the witness is subject to cross-examination and has personal knowledge of the facts stated. State v. Whelan, supra, 200 Conn. 743. "Absent a limiting instruction, evidence presented at trial is taken for its truth." State v. Correia, 33 Conn. App. 457, 462, 636 A.2d 860, cert. denied, 229 Conn. 911, 642 A.2d 1208, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994).

A review of the record reveals that there is no indication that the written statement was admitted for substantive purposes. The prosecutor offered the statement only as an inconsistent statement to impeach the testimony of the witness, and the court stated that all prior out-of-court statements made by the victim were to be considered only in determining the credibility of the victim. In addition, the court instructed the jury that the out-of-court statement was not to be considered to prove the truth of the matter asserted in the statement.¹

The defendant argues that the court never instructed the jury that the statement of the victim's friend had been admitted for impeachment purposes only. The defendant cites State v. Correia, supra, 33 Conn. App. 462, for the proposition that without such an instruction, the jury was free to accept the statement as substantive evidence. In Correia, the victim's prior inconsistent statement was heard by the jury, and the court gave absolutely no limiting instruction on its use. Id. We concluded, therefore, that "[a]bsent a limiting instruction, evidence presented at trial is taken for its truth." Id. In the present case, however, the court did give a limiting instruction to the jury on the statement, namely, that the statement was to be considered only to gauge the credibility of the victim and not for the truth of the matter asserted. Although the court did not give a specific instruction that the statement was to be used only to impeach the testimony of the victim's friend, the court did give a limiting instruction on the use of all the victim's prior statements, and the defendant can point to no evidence that the friend's written statement was admitted for the truth of the matter it asserted. Accordingly, we conclude that the court did not abuse its discretion in admitting into evidence the prior inconsistent statement of the victim's friend.

Moreover, the difference between the testimony that the victim "did not mind" the rape and the prior statement, which contained no comment to that effect, went to the issue of force. Because the defendant was acquitted of the charge of sexual assault in the first degree, the issue of force was resolved in his favor, and he cannot claim that he was harmed by the admission of the prior inconsistent statement.

B

The defendant's next evidentiary claim is that the court abused its discretion by allowing the victim's mother to testify as to a statement made by the victim. We disagree.

The victim's mother testified that she had seen a change in her daughter's personality in the months following the incident in the motel. When asked to describe the change, the mother stated that she noticed that "[the victim] was having nightmares at night. Her room was right next to my bedroom at that time, and I noticed she would, in the middle of the night, say, `No. Stop it.' I would go in there to see what was wrong with her and she would be mumbling." The defendant claims that the victim's statement of, "No. Stop it," is hearsay and does not fall within any of the recognized exceptions for the introduction of hearsay evidence.

"Hearsay is an out-of-court statement that is offered to establish the truth of the facts contained in the statement.... State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967), and Murray v. Supreme Lodge, N.E.O.P., 74 Conn. 715, 718, 52 A. 722 (1902). A statement may or may not be hearsay, depending upon the purpose for which it is offered. When declarations are offered... for the purpose of showing that such statements were made and not that what was declared was true, they do not come within the rule.... McDermott v. McDermott, 97 Conn. 31, 37-38,115 A. 638 (1921); Engel v. Conti, 78 Conn. 351, 354, 62 A. 210 (1905)." (Internal quotation marks omitted.) State v. Williams, 48 Conn. App. 361, 367, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998).

In this case, the statement was offered to show that the victim was having nightmares. It was not offered to prove that the defendant raped the victim. The defendant claims that the inference to be drawn from this statement was that the victim was having nightmares about her assault and was begging the defendant not to engage in sexual intercourse with her. We conclude, however, that the context in which the statement was presented indicates that the statement was not offered for its truth, but rather to show that the victim was having nightmares and mumbling in her sleep. Accordingly, we...