State v. Daniel M.

210 Conn.App. 819

271 A.3d 719

STATE of Connecticut

v.DANIEL M.^*

AC 44355

Appellate Court of Connecticut.

Argued January 3, 2022

Officially released March 1, 2022

Robert L. O'Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, North Haven, assigned counsel, for the appellant (defendant).

Sydney Geer, certified legal intern, with whom were Matthew A. Weiner, assistant state's attorney, and, on the brief, Paul J. Ferencek, state's attorney, Daniel Cummings, assistant state's attorney, Elizabeth K. Moran, assistant state's attorney, and Jennifer F. Miller, former assistant state's attorney, for the appellee (state).

Alvord, Cradle and Lavine, Js.

ALVORD, J.

The defendant, Daniel M., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2)¹ and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).² On appeal, the defendant claims that the trial court erred in admitting evidence of uncharged prior misconduct. We disagree and, therefore, affirm the judgment of conviction.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of this appeal. In or about 2007,³ the defendant met M. R., the victim's mother, at a party. Although the defendant was married with children, M. R. and the defendant began a sexual relationship.⁴ Early in their relationship, M. R. became pregnant with the defendant's daughter, M. At around the same time, M. R. traveled to the Philippines, in order to move her daughter, W, who was born in 2002 and was five or six at the time of the move, to the United States.⁵

Initially, the family, which included W, M. R., W's grandmother, and W's half-sister M, lived in a very small apartment in Norwalk. Because W's grandmother did not like the defendant, he would "sneak in" to the apartment at night to be with M. R. When W was in fifth grade, the family moved to an apartment in Stamford. At this point, the defendant began to spend more time in the apartment and no longer covertly arrived at night.

While the family lived in Stamford, when W was twelve or thirteen years old, the defendant began sexually abusing W. "It started with little subtle things" at first, and W became "uncomfortable physically" around the defendant. "During car rides, [the defendant] would place his hand on [W's] upper inner thigh and force [her] to hold his hand."⁶ This would happen every time the defendant gave her a ride. The defendant would also "hug [W] from behind and press himself against [her]." "The feeling of him" made her uncomfortable because she testified: "I would just feel that he was aroused behind me."

Additionally, on weekends when her mother and grandmother were at work and W was still in bed,⁷ the defendant would climb up to her top bunk, get in the bed, hug her from behind, and touch her breasts. As he "cuddle[d]" her, she would "feel that he was aroused." In an attempt to make him stop, W would tell the defendant that he was going to break the bunk bed, but he would reply that it was fine. W testified that when the defendant would do this "[it] felt like my whole body went numb. I—even if I could try to scream for help my mouth wouldn't open."

On one occasion, in or around the summer of 2016, the defendant was at the apartment with W and M—M. R. and W's grandmother were at work—watching television in the living room. The family kept a mattress in the living room, which they would pull out in front of the couch when watching television. On this evening, M was on the couch and W and the defendant were laying on the pullout mattress (pullout mattress). While watching television, after checking to see that M was not looking, the defendant pulled a blanket over himself and W and moved closer to W. He then put his hand under W's shirt and "grop[ed]" her breasts, commenting that "[they] were coming in nicely" and were "a nice shape." He then "placed his hand under [W's] pants and underwear and touched [her] vagina" and whispered to her "that it was his." The defendant then forced W to touch his erect penis and told her to "shake it." W then pretended to fall asleep, and the defendant left the room.

Another incident occurred around the same date. W was sitting on the pullout mattress watching television when the defendant came into the room and laid down on the couch. He then asked W if she could keep a secret, grabbed W's hand, forced her to touch his erect penis, and asked her how it felt. W did not respond and pretended to fall asleep, at which point the defendant left. Although the defendant continued to touch W's leg and hold her hand during car rides, no subsequent incidents of sexual abuse occurred.

At around this time, M. R. noticed a change in W's behavior when she was around the defendant. M. R. testified about two incidents when W began to cry for no clear reason. One night, when out to dinner with the defendant and M, W began to cry and would not tell M. R. what she was upset about. Later, on a trip to New York City, the family was taking a ferry to see the Statue of Liberty and W started crying and again told her mother that she did not want to talk about what was wrong. M. R. expressed concern to the defendant, who responded, "she's fine, she's just like jealous that we're together with [M]. And she just want[s] attention."

In late September, 2016, W told her mother about the defendant's abuse.⁸ M. R. immediately called the defendant and told him to come to the apartment right away. When he arrived, M. R. told the defendant that W had told her that he had "touch[ed] her private part."⁹ Initially, the defendant claimed that W was lying because she "didn't want him around anymore."¹⁰ He eventually admitted to touching W and claimed that he did it because he wanted to break up with M. R. He later told M. R. that he did it because he wanted to get close to W and said that "if he and [W] had like sexual thing ... she will feel comfortable around him." M. R. did not tell anyone about the abuse.¹¹ The defendant did not cease living in the apartment.¹²

In November, 2016, the family moved to Greenwich, and the defendant began to spend even more time living with the family. In early 2017, W told her aunt about the abuse and her aunt encouraged her to tell someone at school.¹³ W then told her school's social worker, who reported the abuse to the Stamford Police Department. Following the police investigation, the defendant was arrested.

Prior to trial, on July 15, 2019, the state filed a notice of its intent to present evidence of uncharged misconduct pursuant to § 4-5 (c) of the Connecticut Code of Evidence.¹⁴ Specifically, the state notified the defendant that it intended to present evidence "of the defendant's acts of domestic violence toward the mother of the victim at times prior to the victim reporting the events from which the current case arises." The state asserted that "[t]his evidence is relevant to corroborate crucial prosecution testimony, to complete the story, and to explain any alleged delay in disclosure of sexual abuse."

The defendant filed a written objection to the uncharged misconduct evidence, arguing that "[t]he probative value of such evidence is outweighed by its prejudicial value" and that "the evidence would also prolong the trial as evidence may be introduce[d] to counter the allegation of domestic violence."

On September 9, 2019, a hearing was held before the court, Blawie, J . The state argued that the uncharged misconduct evidence would "corroborate crucial prosecution testimony, and [would] explain any delayed disclosure." The state relied on State v. Gerald A. , 183 Conn. App. 82, 106–10, 191 A.3d 1003 (concluding that court did not abuse its discretion in admitting evidence of domestic violence as uncharged misconduct evidence in child sex abuse case as explanation for delayed disclosure of abuse), cert. denied, 330 Conn. 914, 193 A.3d 1210 (2018), for the proposition that evidence of domestic violence can show that W "had reason to fear the defendant because he would regularly commit acts of violence in front of her against her mother causing injuries to her mother, and that explains in part why she did not make an immediate disclosure when the alleged abuse occurred." Defense counsel objected to the uncharged misconduct, arguing that the evidence was more prejudicial than probative. Defense counsel acknowledged, however, that Gerald A. "seem[ed] to be on point."

The court then made the following oral ruling: "I think it is pretty much on point. I understand that there's also maybe some statements made by either the complaining witness or a family member that would undermine the allegations. And again it may be irrelevant on multiple points.

"But I think that I will await the evidence, but I'm inclined to allow it if there's an adequate foundation. If I do allow it, I intend on using language similar, if not identical, to the limiting instruction offered by the trial court in State v. Gerald A. ...

"So again, I'm not necessarily granting the motion. I am going to ask you to excuse—that the jury be excused at the time you intend to proffer it, and then I will make a ruling on the basis of the record as it exists at that time. ...

"All right. If there's an adequate foundation, I'm inclined to allow it, but I'll have to await the evidence."

On September 11, 2019, the first day of evidence, the state called W as a witness. W testified that the defendant and her mother would get into fights that often turned physical.¹⁵ She testified that the defendant "would grab [M. R.] by the hair, grab her by the arm and twist her arm ... pull her hair, choke her." W testified that this violence scared her and was the reason she "never liked" the defendant. Following this testimony, the court gave a limiting instruction.¹⁶ W then testified that she had observed bruises on...