State v. Legrande

60 Conn. App. 408

759 A.2d 1027

STATE OF CONNECTICUT v. PETER LEGRANDE

(AC 18312)

Appellate Court of Connecticut.

Argued January 10, 2000.

Officially released October 17, 2000.

O'Connell, C. J., and Spear and Mihalakos, JS.¹ Pamela S. Nagy, assistant public defender, with whom, on the brief, were Carrie Cereto and Lori A. Lastrina, certified legal interns, for the appellant (defendant).

Nancy L. Chupak, deputy assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Kevin J. Murphy, assistant state's attorney, for the appellee (state).

Opinion

SPEAR, J.

The defendant, Peter Legrande, appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes (Rev. to 1989) § 53-21, one count of sexual assault in the second degree in violation of General Statutes (Rev. to 1989) § 53a-71 (a) (1) and one count of sexual assault in the second degree in violation of General Statutes (Rev. to 1991) § 53a-71 (a) (1).

The defendant claims that the trial court improperly (1) admitted evidence of his uncharged misconduct to show a common scheme or design to sexually abuse young girls, (2) denied his motion for a judgment of acquittal on the ground that the evidence was insufficient to support his conviction of risk of injury to a child as to the victim M, (3) denied his motion for a new trial on the basis of newly discovered evidence, which was brought under Practice Book § 902, now § 42-53, (4) instructed the jury on how it could use his prior felony convictions to assess his credibility and (5) instructed the jury on reasonable doubt and the presumption of innocence. We affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. During a three year period, the defendant repeatedly had sexual contact with the two victims, M and S. The defendant was born on April 19, 1958, and M was born on March 7, 1974. The sexual contact involving M began three years after she began baby-sitting for the defendant's two children. In the winter of 1989, shortly after the defendant purchased a home in West Hartford, the defendant took M to the third floor of his new residence and touched her breasts. When M started to cry, the defendant stopped and took her home.

On another occasion when M was sleeping at the defendant's home, he told her to change into her pajamas in his presence. M protested, but the defendant insisted that he would not look at her. M took off her pants, shirt and bra, and put on a one piece nightgown. When M lay down in bed, the defendant laid down next to her, placed his hands underneath her nightgown, touched her breasts and vagina, and then inserted his finger into her vagina. When M asked the defendant to stop, he refused and responded that it would be all right.

The defendant's conduct of touching M underneath her clothes and inserting his finger into her vagina continued until the end of 1989, and also progressed during that time to the defendant's inserting his penis into M's vagina. By Christmas, 1989, the defendant had had sexual intercourse with M between two and four times.

In the summer of 1990, S, who was born on August 4, 1977, began baby-sitting for the defendant's children.² During that summer, the defendant started calling S names that were inappropriate, touching her buttocks, and grabbing and kissing her. One day while S was baby-sitting, the defendant asked her to sit on his lap. When she did, the defendant touched her underneath her shirt, shorts and underpants. He then inserted his finger into her vagina. One night between the fall of 1990 and the summer of 1991, when S was baby-sitting and playing video games, the defendant came home and ordered her to stop playing the game and to come to the sofa. When S complied, the defendant laid down on the sofa and had her lie next to him. Afraid that the defendant was about to engage in sexual intercourse with her, S told him that she was not going to go any further. The defendant then got off the sofa and went into his room. S followed the defendant as he sat on his bed and cried. The defendant told S that he loved her and that he was sorry. He then asked her if she had ever told anybody, and when she said that she had not, he told her that she could never tell.

On another occasion, in an early morning in the summer of 1991, the defendant asked S to accompany him to a garage outside of West Hartford. On their way back from the garage, the defendant drove into the back of a parking lot of a movie theater. The defendant kissed S, touched her underneath her clothes and inserted his finger into her vagina. When S told the defendant to stop and said that she was not going to allow him to touch her, he became angry and started to drive home. On the way, he asked her if she was still a virgin and told her that the boy who "[takes] her virginity" was going to be lucky.

The final incident of sexual contact committed against M occurred on the day after Thanksgiving, 1991. That day, after the defendant and M returned from playing bingo at the Foxwoods Casino in Ledyard, the defendant led M to the third floor of his residence, kissed and touched M, took off her clothes and inserted his finger into her vagina. M became upset and asked the defendant to stop. The defendant refused to stop and, instead, penetrated M's vagina with his penis. M started to cry, and the defendant responded by also crying. He then told her that he loved her and that she was special, and then asked her if she would ever turn him in.

The defendant was subsequently arrested and charged in connection with his conduct but, because of a statute of limitations bar, was not charged in connection with his actions committed against M prior to December 22, 1989. During trial, the court admitted testimony from M regarding the defendant's uncharged sexual conduct that occurred prior to December 22, 1989, for the limited purpose of showing the defendant's common plan or design to sexually abuse young girls. M also testified that although sexual contact by the defendant continued through 1990, she did not recall any one specific incident having occurred between December 22, 1989, and March, 1990. After the presentation of evidence, the court instructed the jury on, inter alia, the use of the defendant's prior convictions to assess his credibility, the presumption of innocence and the state's burden of proving its case beyond a reasonable doubt.

The jury found the defendant guilty of two counts of risk of injury to a child and two counts of sexual assault in the second degree. A mistrial was declared with regard to the count of sexual assault in the first degree. After the verdict, the defendant filed a motion for a judgment of acquittal on the ground of insufficient evidence and a motion for a new trial under Practice Book § 902, now § 42-53, on the basis of newly discovered evidence. The court denied the defendant's motions. This appeal followed.

I

The defendant first claims, on two grounds, that the court improperly admitted M's testimony about his uncharged misconduct that occurred prior to December 22, 1989. We disagree. "As a threshold matter, we set forth the standard by which this court reviews a challenge to a trial court's [evidentiary ruling]. The trial court's ruling on the admissibility of evidence is entitled to great deference.... [T]he trial court has broad discretion in ruling on the admissibility ... of evidence.... The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... State v. Berger, 249 Conn. 218, 229, 733 A.2d 156 (1999)." (Internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 326, 746 A.2d 761 (2000).

A

The defendant claims that the court improperly determined that M's testimony about his uncharged misconduct was relevant to show a common plan or design to sexually abuse young girls. We decline to review this claim.

The defendant failed to object specifically to M's testimony at trial on the ground of relevance, but argues on appeal that his claim was preserved at trial because he objected to her testimony on the ground that its prejudicial effect outweighed its probative value. "Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection [to the trial court].... This court reviews rulings solely on the ground on which the party's objection is based." (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 791, 717 A.2d 1140 (1998). The defendant's claim is, therefore, unpreserved.

The defendant alternatively argues that his unpreserved claim is entitled to review under the plain error doctrine. Practice Book § 60-5.³ "[R]eview under the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) State v. Stephens, 249 Conn. 288, 291, 734 A.2d 533 (1999). This claim does not meet that standard.

B

The defendant next claims that despite the relevancy of M's testimony regarding his uncharged misconduct, the court improperly determined that the probative value of the evidence outweighed its prejudicial effect. He claims that M's testimony that he had forced sexual intercourse with her and subjected her to sexual contact on numerous occasions inflamed the jury and ultimately led to his conviction of all charges relating to S. We are not persuaded.⁴

"Relevant evidence of prior uncharged misconduct that is prejudicial in nature is admissible if the trial court, in the exercise of its sound...