State v. Dionne

207 Conn.App. 106

262 A.3d 961

STATE of Connecticut

v.Christopher J. DIONNE

AC 43775

Appellate Court of Connecticut.

Argued May 10, 2021

Officially released August 31, 2021

Norman A. Pattis, Bethany, for the appellant (defendant).

Samantha L. Oden, deputy assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Theresa Ferryman, senior assistant state's attorney, for the appellee (state).

Prescott, Moll and Lavery, Js.

PRESCOTT, J.

The defendant, Christopher J. Dionne, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly (1) permitted the victim's mother¹ to testify as a constancy of accusation witness regarding statements made by the victim to her that disclosed the sexual abuse perpetrated by the defendant, and (2) admitted a videotape of the victim's forensic interview under the constancy of accusation doctrine or pursuant to the medical diagnosis or treatment exception to the rule against hearsay evidence. The defendant concedes that both of these claims are unpreserved and are not of constitutional magnitude. Accordingly, he seeks to prevail under the plain error doctrine. We conclude that the defendant has failed to meet his high burden of demonstrating plain error and, accordingly, affirm the judgment of conviction.

The jury reasonably could have found the following facts. The victim was ten years old at the time the defendant sexually assaulted her. She was best friends with the defendant's daughter. The defendant and his family lived on the same street as the victim.

On November 25, 2017, the victim slept over at the defendant's house. At 1:30 a.m., the defendant returned home and entered the living room where the victim was sleeping. After awaking the victim by his presence, he proceeded to touch and rub the victim's buttocks and her breasts. He also asked the victim to kiss his penis to which she responded, "No." He warned the victim not to tell anyone about what he had done to her.

On November 26, 2017, the victim disclosed to her mother that the defendant had touched her buttocks and breasts. She also repeated the disclosure to a family therapist, during which time she became physically ill.

On the following day, the victim's mother reported the victim's disclosure to the Department of Children and Families (DCF), spoke to a resident state trooper, Kazimera Morse, and turned over to Morse clothing that the victim had been wearing during her sleepover at the defendant's house. Morse informed the victim's mother that DCF would contact her regarding what to do next with the "medical process." DCF contacted the victim's mother later that day to schedule a forensic interview of the victim.

A forensic interview of the victim was conducted on November 29, 2017, at Yale New Haven Hospital by a licensed clinical social worker. During the interview, the victim disclosed in greater detail the sexual assault committed by the defendant. Immediately following the interview, a physician performed a physical examination of the victim, the results of which were normal.

The defendant later admitted to the police that he had physical contact with the victim during the sleepover but represented that the contact had not been sexual in nature. Subsequent DNA analysis of swabs taken from the victim's pajama shorts further inculpated, albeit not conclusively, the defendant. As a result, the defendant was arrested in January, 2018.

At the defendant's jury trial, the victim was the first witness to testify. She described the sexual abuse perpetrated on her by the defendant, explained why she did not disclose the abuse immediately the following morning, and stated that she first disclosed the abuse to her mother late the following day after taking a bath. During his cross-examination of the victim, defense counsel asked a series of questions that suggested that she had had various opportunities throughout the day to tell her mother what had happened but failed to do so.

The state subsequently offered, and the court admitted without objection, testimony by the victim's mother regarding the disclosure made to her by the victim about the abuse the previous night. This testimony was elicited in compliance within the strictures regarding constancy of accusation testimony set forth in § 6-11 (c) of the Connecticut Code of Evidence.² The court also gave a limiting instruction to the jury regarding the proper use of constancy of accusation testimony.

The court also admitted without objection a videotape of the forensic interview of the victim. During the interview, the victim provided additional information regarding the sexual abuse perpetrated on her by the defendant. This evidence was admitted for substantive purposes. The defendant was expressly asked by the court on two separate occasions whether he had any objection to the admission of the videotape, and his counsel stated that he did not.

The jury subsequently found the defendant guilty of both charges. The court imposed a total effective sentence of seven years of incarceration, suspended after three years, followed by ten years of probation and a $7500 fine. This appeal followed.

I

The defendant first claims that the court committed plain error by admitting, without objection, the testimony of the victim's mother, pursuant to the constancy of accusation doctrine, that the victim had disclosed to her, on the day following the sleepover, that the defendant had sexually assaulted her. Specifically, the defendant asserts that the admission of the mother's testimony under the constancy of accusation doctrine was plain error because that doctrine should not apply in cases in which the victim's delay in disclosing the sexual abuse is less than twenty-four hours. We conclude that the defendant has failed to demonstrate that the trial court committed plain error.

"It is well established that the plain error doctrine ... is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved [and nonconstitutional in nature], are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party.... That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment ... for reasons of policy.... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly....

"An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernable] on the face of a factually adequate record, [and] also ... obvious in the sense of not debatable. ... [A] complete record and an obvious error are prerequisites for plain error review .... [An appellant] cannot prevail under [the plain error doctrine] ... unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Moon , 192 Conn. App. 68, 97–99, 217 A.3d 668 (2019), cert. denied, 334 Conn. 918, 222 A.3d 513 (2020).

We next briefly summarize the constancy of accusation doctrine. "The constancy of accusation doctrine traces its roots to the fresh complaint rule ... [t]he narrow purpose of [which] ... was to negate any inference that because the victim had failed to tell anyone that she had been [sexually assaulted], her later assertion of [sexual assault] could not be believed.... [B]ecause juries were allowed—sometimes even instructed—to draw negative inferences from the woman's failure to complain after an assault ... the doctrine of fresh complaint evolved as a means of counterbalancing these negative inferences. Used in this way, the fresh complaint doctrine allowed the prosecutor to introduce, during the case-in-chief, evidence that the victim had complained soon after the [sexual assault]. Its use thereby forestalled the inference that the victim's silence was inconsistent with her present formal complaint of [assault].... In other words, evidence admitted under this doctrine effectively served as anticipatory rebuttal, in that the doctrine often permitted the prosecutor to bolster the credibility of the victim before her credibility had first been attacked.... The fresh complaint doctrine thus constituted a rare exception to the common-law rule that prohibited rehabilitative evidence in the absence of an attack on the [witness’] credibility....

"Presently, the constancy of accusation doctrine, as modified by our Supreme Court in [ State v. Daniel W. E. , 322 Conn. 593, 618–19, 142 A.3d 265 (2016) ], permits the victim in a sexual assault case ... to testify on direct examination regarding the facts of the sexual assault and the identity of the person or persons to whom the incident was reported.... Thereafter, if defense counsel challenges the victim's credibility by inquiring, for example, on cross-examination as to any out-of-court complaints or delayed reporting, the state will be permitted to call constancy of accusation witnesses subject to [certain] limitations .... If defense counsel does not challenge the victim's credibility in any fashion on these points, the trial court shall not permit the state to introduce constancy testimony but, rather, shall instruct...