State v. Gibson

815 A.2d 172

75 Conn.App. 103

STATE of Connecticut v. Tony E. GIBSON.

No. 21779.

Appellate Court of Connecticut.

Argued September 18, 2002.

Decided February 11, 2003.

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SCHALLER, WEST and DUPONT, Js.

Joseph G. Bruckmann, public defender, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellee (state).

DUPONT, J.

The defendant, Tony E. Gibson, appeals from the judgment of conviction, rendered after a jury trial, of five crimes, all involving three sisters, the daughters of P,¹ who had been his fiancee for seven years. In a five count, long form information, he was charged with sexual assault in the first degree in violation of General Statutes § 53-70(a)(2) as to C when she was younger than thirteen years of age, sexual assault in the second degree in violation of General Statutes § 53a7-1 (a)(1) as to J when she was younger than sixteen years of age, two counts of risk of injury to a child in violation of General Statutes § 53-21(2) as to J and C, and with threatening in violation of General Statutes § 53a-62 (a)(1) as to a third sister, I.²

The defendant claims, as to the four counts involving sexual assault and risk of injury to a child, that the trial court improperly (1) admitted prior uncharged sexual misconduct evidence and (2) denied his motion for a mistrial. The defendant further claims as to the two counts involving J only that (3) the court's final instructions to the jury as to the time the crimes were committed were improper in the absence of an instruction limiting the use of the uncharged misconduct evidence.³ The defendant seeks a new trial because of those alleged improprieties. Those three claims are discussed together in part I of this opinion.

The defendant also claims that in the event that his arguments as to his first two claims fail, (4) the court's sentence for sexual assault in the first degree as to C was constitutionally improper. That claim is discussed in part II of this opinion. The defendant's last claim is that (5) the evidence was insufficient to support his conviction for threatening, as alleged in the fifth count of the information, and that a judgment of acquittal should be directed. That is discussed in part III of this opinion.

The jury reasonably could have found the following facts. The defendant occasionally stayed overnight at the family home of the mother of the three victims of the crimes with which the defendant was accused. On the evening in question, P and her daughter C were sleeping in the same bed. During the night, the defendant woke C by touching her. The defendant pulled down her pants and underpants, and put his fingers inside of her vagina.⁴ He then pulled up her pants and underpants, and told her not to tell anyone. When P awoke in the morning, the defendant also was in the bed. P did not know when the defendant had arrived during the night and was not aware that anything had happened between the defendant and C.

Later that same morning, after her mother had left, J was in her room when the defendant called her into her mother's bedroom. The defendant told her to sit on the bed, which she did. He then removed her pants and pulled her underpants down to her knees. He inserted his penis into her vagina. She was on her back and he was on top of her, moving back and forth. I, the third daughter, who was thirteen years old at the time, saw J lying on her back with her legs spread and the defendant on top of her, moving back and forth. J had on a top, but no pants or underpants, and the defendant was wearing only a shirt. I went to a fourth sister's room and told her what she had just seen. Additional facts will be provided as necessary.

I PRIOR UNCHARGED MISCONDUCT CLAIMS

The defendant's first three claims of impropriety involve the admission of evidence of prior uncharged sexual misconduct, the failure to grant his motion for a mistrial and the lack of a limiting instruction in the final instructions to the jury as to the use of such evidence as to the charges involving J. We discuss the claims together because they are related. Both the state and the defendant discuss the issues of the admissibility of the prior uncharged misconduct evidence and the failure to grant a mistrial together. The defendant's motion for a mistrial rested on the lack of a limiting instruction before or immediately or closely following the introduction of the evidence of the prior uncharged misconduct. The defendant's third claim, that the language of the final instruction to the jury, without a limiting instruction as to the uncharged misconduct, merits a new trial as to J, is discussed separately by the parties.

A Background

The information alleged that all of the crimes took place during the "early morning hours" or the "morning hours" of August 7, 2000. Over the objection of the defendant, J testified that on more than one occasion prior to August 7, 2000, at her home, when her mother was not there, the defendant engaged in sexual intercourse with her. The state acknowledges that those occasions occurred one or two years prior to August 7, 2000. On some of the occasions, the defendant had given her money afterward, with which she bought candy.

The state sought the admission of the prior acts as relevant to common scheme and motive, and the testimony was admitted by the court "for purposes of showing a common design and limited to that." Before the child testified, out of the presence of the jury, the court stated that it would admit her testimony but that "[it would] give some cautionary instructions to the jury" as to the proper use of the testimony. The day after the testimony, not having yet given such instructions, the court again stated that it would give such an instruction to tell the jury that the testimony was offered for the purpose of showing "a common design and limited to that." Later that same day, the court asked the defendant if he wanted such an instruction and the defendant answered: "It's the position of the defense that the prejudicial impact of [the testimony] so outweighs the probative value ... that the defense feels no amount of cautionary instructions would help." Defense counsel then requested a mistrial, which the court denied. The court then stated: "I'm not going to give an instruction, then. He has — he has requested that I not do so, all right? All right." The court also stated that it might "address [the issue]" during the course "of the charge to the jury."

The court gave no instruction during the trial, or in its final instruction to the jury, as to the proper use of the evidence of the prior uncharged misconduct, which had occurred one or two years before August 7, 2000.

B Admissibility of Uncharged Misconduct Evidence

The defendant's main argument is that the prejudicial effect of the evidence outweighed its probative value, particularly because the evidence involved multiple episodes of prior misconduct, and the conduct was similar as to C and identical as to J. On that basis, the defendant argues that the evidence should not have been admitted. Citing numerous Connecticut cases that have upheld the admissibility of the uncharged acts of misconduct, the state argues that the evidence was admissible. The state argues in essence that the similarity of the uncharged prior acts to the charged acts increases the probative value of the evidence, thereby dwarfing the prejudicial aspects of the evidence. We agree with the state.

It is well settled that evidence of prior misconduct is admissible for the purpose of showing knowledge, intent, motive, and common scheme or design, but is not admissible to prove that a defendant is guilty of the crimes with which he is charged.⁵ State v. George B., 258 Conn. 779, 790, 785 A.2d 573 (2001). Uncharged misconduct evidence relates to a collateral, uncharged crime and does not prove the commission of the principal crime with which the defendant is charged. State v. Kulmac, 230 Conn. 43, 60, 644 A.2d 887 (1994).

The admission of evidence of prior misconduct is within the discretion of the trial court. State v. Meehan, 260 Conn. 372, 393, 796 A.2d 1191 (2002). Every reasonable presumption should be given by an appellate court in favor of the trial court's ruling to admit such evidence. State v. George B., supra, 258 Conn. at 791, 785 A.2d 573. To admit evidence of prior misconduct properly, two tests must be met. The evidence (1) must be material and relevant, and (2) its probative value must outweigh the prejudicial effect of the evidence. State v. Cator, 256 Conn. 785, 798, 781 A.2d 285 (2001).

Evidence is material where it is offered to prove a fact directly in issue or a fact probative of a matter in issue. C. Tait, Connecticut Evidence (3d Ed.2001) § 4.1.3. Relevant evidence is defined in the Connecticut Code of Evidence, § 4-1, as "evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence." The commentary to that section makes it clear that there are two separate components of relevant evidence at common law, probative value and materiality. Evidence is relevant if it tends to support the conclusion even to a slight degree. Id., commentary; State v. Rinaldi, 220 Conn. 345, 353, 599 A.2d 1 (1991). Materiality is determined by the pleadings (or information) and the applicable substantive law. Conn. Code Evid. § 4-1, commentary.

In this case, the evidence recounted by J related to prior sexual acts involving her and the defendant. Evidence of prior sexual misconduct is admissible to show a common scheme or design where the prior acts are not too remote in time, are similar to the offense charged and are committed involving...