State v. Juan J.

344 Conn. 1

276 A.3d 935

STATE of Connecticut

v.JUAN J.^*

SC 20406

Supreme Court of Connecticut.

Argued December 20, 2021

Officially released July 5, 2022

Emily C. Kaas, assigned counsel, with whom were Michael O. Sheehan, New Haven, assigned counsel, and Kara E. Moreau, New Haven, assigned counsel, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Brian W. Preleski, former state's attorney, and Brett J. Salafia, executive assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

D'AURIA, J.

The dispositive issue in this appeal concerns the admission of uncharged misconduct evidence, specifically, prior incidents of sexual abuse, to prove a general intent to commit the incidents of sexual abuse with which the defendant, Juan J., was charged. A jury found the defendant guilty of sexual assault in the first degree, attempt to commit sexual assault in the first degree, and risk of injury to a child.¹ The defendant claims that he is entitled to a new trial because the trial court abused its discretion in admitting irrelevant, uncharged misconduct evidence of alleged prior incidents of sexual abuse by the defendant against the complainant and that this error was harmful.² We conclude that, in a general intent crime case, in which the theory of defense is that the conduct did not occur at all, rather than a theory of defense in which the conduct occurred unintentionally, uncharged misconduct is irrelevant and inadmissible to prove intent. We agree with the defendant that the trial court abused its discretion in admitting this uncharged misconduct evidence because it was irrelevant to the issue of intent—the only issue for which the evidence was proffered—and, therefore, inadmissible. This error was harmful, and we therefore order a new trial.

The jury reasonably could have found the following facts. The complainant, P, is the defendant's daughter. P was sixteen years old at the time of trial and testified regarding two specific incidents of inappropriate sexual conduct by the defendant. The first incident, which involved the defendant touching her vagina under her clothing,³ occurred on January 5, 2015, when she was twelve years old. The second incident, which involved the defendant attempting, but failing, to touch her vagina under her clothing,⁴ occurred less than one year later on December 24, 2015, when she was thirteen years old.

P did not disclose the defendant's inappropriate contact with her until late May or early June, 2016. P's older cousin, A, had taken P dress shopping because P's mother, S, had told A that P had been "having some issues with her attitude [and] trouble in school ...." A testified that she had asked P "what was going on with mom, what was going on with dad, and, once I mentioned dad, she was crying hysterically. She said that we didn't know what he was doing to her." A took P back home and told S "that something was up with dad." The next day, after P went to school, A told S that P and her siblings "could no longer be in the house" and should come stay with her. S allowed P, but not her other children, to live with A, who, at the time of the defendant's criminal trial, had legal guardianship of P. One week later, P met with her school counselor because she had gotten into a fight at school. When asked whom she would like the school to contact about bringing her home, P explained that she wanted to go home with A and not her mother. P disclosed that she was living with A "because something had happened with her father ...." The counselor discussed with P some examples of why children may be having a hard time at home, including financial issues, parents having issues, not getting along with siblings and, sometimes, that children are being touched inappropriately. Seemingly surprised at the mention of inappropriate touching, P responded by asking, "how did you know?" The counselor then asked P, "was it your father," and P said yes. P did not share any further details with the counselor other than that the defendant had touched her from "summer, 2015, until three weeks" before that day's meeting.

The counselor, a mandated reporter, reported the allegations to the Department of Children and Families (department). The department opened an investigation and informed the local police, whereupon a criminal investigation also was opened. The department referred P to the Greater Hartford Family Advocacy Center at Saint Francis Hospital and Medical Center in Hartford for a forensic interview that was conducted on June 6, 2016, by Lisa Murphy-Cipolla, the clinical services coordinator. A follow-up forensic interview was conducted several months later after A found P's journal, which "contained what [A] believe[d] [to be] facts related to the case." During both interviews, a detective and a department worker observed the interview from behind a one-way mirror.

At the first interview, P told Murphy-Cipolla that the defendant had touched her from the summer of 2014, to May, 2016. Murphy-Cipolla showed P anatomical diagrams of the male and female human bodies and asked her to show where she had been touched by the defendant and with what. P circled the vagina and buttocks on the female diagram and the hands on the male diagram.

At the second interview, P made more detailed disclosures to Murphy-Cipolla. P informed Murphy-Cipolla that the touching had started in 2014 but, at another point during the interview, alleged that the touching had begun in 2015. P said that the touching stopped in May, 2016, and had occurred "all the time" and "every other day." P also said that the defendant performed oral sex on her, put his mouth on her breasts, and digitally penetrated her anus.

At the end of both interviews, Murphy-Cipolla referred P for a medical examination. Neither examination revealed any physical evidence of sexual assault. Subsequently, the police arrested the defendant.

The following additional procedural history is relevant to our consideration of the defendant's claim. The state's substitute long form information contained four counts.⁵ The first two counts—sexual assault in the first degree and risk of injury to a child—refer specifically to the January 5, 2015 incident; the second two counts—attempt to commit sexual assault in the first degree and risk of injury to a child—refer specifically to the December 24, 2015 incident.

Prior to trial, the state filed a notice of intent to "present testimony and evidence" of prior uncharged misconduct, specifically, evidence that the defendant had inappropriately touched P in a sexual manner multiple times beyond the two particular incidents alleged. The defendant filed a broadly worded motion in limine, objecting to the admission of any evidence of prior uncharged misconduct. Specifically, the defendant argued in the motion that he "denies any of the conduct that is alleged in this case" and that the evidence invites improper propensity considerations. On the first day of trial, the court conducted a hearing on the defendant's motion in limine. Outside the jury's presence, the state proffered the testimony of P that the defendant had touched her inappropriately "[m]ultiple times, like, more than twice," and "a lot of times ...." When asked by the prosecutor, P also agreed that the touching occurred "more than ten times" and that it probably happened every week. P additionally testified that each incident would last "a couple of minutes," during which the defendant would "try to put ... his fingers inside [her] pants ...." P said that the defendant would also touch her "bra area, [her] vagina, [her] back area, [her] butt ... and [her] boobs."

The state specifically declined to offer this evidence under the propensity exception for uncharged sexual misconduct pursuant to § 4-5 (b) of the Connecticut Code of Evidence. Rather, the state offered the uncharged misconduct evidence under § 4-5 (c) for the purposes of proving intent, common plan or scheme, and completing the story of the defendant's pattern of conduct. The trial court overruled the defendant's objection, reasoning that the "state has carried its burden of proof that, pursuant to ... § 4-5 (c), the proffered uncharged misconduct from [P] is so connected with the charge[d] conduct so as to be material and relevant to ... the issue of the intent to commit the crime charged in the information. ... The court, also having ... [per]formed the balancing test necessary, finds that the probative value in the case of this sort and, specifically, on these facts, outweighs any prejudicial tendency, especially with the proper limiting instruction, which this court will give, and also that the allegations are not too remote in time to diminish the probative value."⁶

In the state's case-in-chief, P testified regarding the two charged incidents of January 5 and December 24, 2015. She also testified that she recalled many other instances of the defendant's having touched her inappropriately, such as when he touched the "[i]nside of [her] vagina, [her] butt, [and her] boobs." The inappropriate touching occurred throughout the house but, more often than not, in P's bedroom. At various points in her testimony to the jury, P recounted that the defendant touched her inappropriately "[o]ver ten times," that the inappropriate touching took place "[f]requently"; she agreed with the prosecutor that the touching took place "about ten times and [that] it was essentially the same conduct each of those times," and she testified that the touching continued after December 24, 2015, until she began living with A in June, 2016.

Immediately after P's testimony, the court gave the jury the following limiting instruction: "[C]ertain testimony from [P] as to evidence of the commission by the defendant of other criminal sexual behavior may be considered by you if you believe it and [you find it] relevant...