State v. Martin V.

926 A.2d 49

102 Conn.App. 381

STATE of Connecticut v. MARTIN V.¹

No. 26870.

Appellate Court of Connecticut.

Argued January 10, 2007.

Decided July 17, 2007.

Annacarina Del Mastro, senior assistant public defender, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Anne F. Mahoney, senior assistant state's attorney, for the appellee (state).

GRUENDEL, HARPER and BERDON, Js.

BERDON, J.

The defendant, Martin V., appeals from the judgments of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), one count of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1) and three counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2).² The defendant claims that the trial court (1) improperly admitted evidence of prior uncharged misconduct by taking judicial notice of a court order prohibiting him from having contact with his daughters, the victims, and (2) gave an improper explanation of the constancy of accusation doctrine to the jury. We affirm the judgments of the trial court.

This case involves the alleged sexual abuse by the defendant of his three minor daughters, M, S and A, over the course of several years.³ Between March and November, 2002, three complaints were received by the department of children and families (department) that the defendant physically (but not sexually) abused family members.⁴ Sometimes the defendant would strike M so hard with a belt that it left marks on her back. The children were frightened of him. Following the third complaint in November, 2002, the department removed the children from the defendant's home and placed them in foster care. Despite the history of physical abuse, the department planned to reunite the family.

On February 21, 2003, three months after placement in foster care, the daughters first claimed they previously had been sexually abused by their father. M told her foster mother and a social worker, Betsy Dela Cruz, that the defendant had sexually abused her and her sisters. M testified at trial that the defendant had vaginal sexual intercourse with her on a daily basis when she was between twelve and fourteen years old. S testified that the defendant had both vaginal and anal intercourse with her many times when she was between ten and twelve years old. A testified that the defendant had touched her private parts. The defendant was arrested and charged pursuant to these allegations.

The principal evidence against the defendant was the testimony of the victims.⁵ There was no physical evidence presented to corroborate the victims' stories. The state's medical expert, Elaine Yordan, physically examined the victims. She testified that none of the girls had scarring, lesions or transsection of the hymenal rim, despite allegations from M and S that they had been subjected to frequent vaginal and anal intercourse. Yordan testified that her findings neither proved nor disproved sexual abuse. She explained that the absence of scarring and lesions could have been the result of the length of time between the last opportunity for abuse and the examinations. The absence of damage to the hymenal rim may have been because M and S had started menstruating before the abuse started, which would physiologically allow a girl's hymen to elasticize and prevent such injury. Yordan stated that her findings could equally support conclusions that the girls were or were not sexually assaulted.

During trial, the state requested that the court take judicial notice of the existence of a protective order prohibiting any contact between the defendant and his daughters. The court deferred judgment on that request until further evidence was offered. Subsequently, the state offered into evidence two letters purportedly written by the defendant to M at some time after the daughters had been placed in foster care and had made the allegations of sexual abuse. M testified that the letters were delivered by her mother, but the handwriting was the defendant's. The content of the letters also made specific reference to the author's being the defendant. The court admitted the letters into evidence,⁶ without objection, as relevant to show the defendant's consciousness of guilt. One letter stated: "I'm paying for being bad with you. . . ." The second letter instructed: "[W]hen you read this letter tear it up so they won't find you with it." After the letters were read into evidence, the court reconsidered the state's request that the court take judicial notice of the no contact order. The court found that the no contact order was relevant to put the letters in context and that its probative value outweighed its prejudicial nature. Over the defendant's objection, the court took judicial notice of the existence of the no contact order barring the defendant from having any contact with his daughters.

I

The defendant claims that the court abused its discretion by taking judicial notice of the no contact order because the order, taken together with the letters written by the defendant, amounted to evidence of uncharged misconduct that was improperly admitted. The defendant argues that by taking judicial notice of the no contact order, the court improperly allowed the introduction of evidence that was not relevant to prove any of the recognized exceptions to the admissibility of uncharged misconduct and improperly prejudiced him.

As a general rule, "evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused. . . . Nor can such evidence be used to suggest that the defendant has a bad character or a propensity for criminal behavior." (Internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 659-60, 835 A.2d 895 (2003); see also Conn. Code Evid. § 4-5(a). "In order to determine whether such evidence is admissible, we use a two part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect. . . ." (Internal quotation marks omitted.) State v. Merriam, supra, at 661, 835 A.2d 895. "The primary responsibility for making these determinations rests with the trial court.

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. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994).

Under the first prong of the test, the evidence must be relevant⁷ for a purpose other than showing the defendant's bad character or criminal tendencies. State v. Merriam, supra, 264 Conn. at 660-61, 835 A.2d 895. Recognized exceptions to this rule have permitted the introduction of prior misconduct evidence "to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony." Conn.Code Evid. § 4-5(b). The list of exceptions provided in the code of evidence is not exclusive but rather is intended to be illustrative. Id., § 4-5(b), commentary. Our Supreme Court has also recognized an exception for prior misconduct evidence admitted to "complete the story of the charged crime by placing it in the context of nearby and nearly contemporaneous happenings." (Internal quotation marks omitted.) State v. Ali, 233 Conn. 403, 427, 660 A.2d 337 (1995).

The court found that the no contact order was relevant to put in context statements made in the defendant's letters to the victims. As to the relevancy of the no contact order for this purpose, the court stated: "It seems to me that under the circumstances, if the fact of this—the existence of this order, is considered by the jury in connection with the letter, that [the jury] could fairly put in context those statements if [the jury] drew the inference, which I think is available from the letter, that it was sent for the purpose of making illicit contact and potentially influencing [the victims] to go easy on him so that his problems wouldn't increase or continue." There simply is no basis for that determination.

There is no dispute that the letters evinced consciousness of guilt and therefore were relevant in determining whether the defendant sexually assaulted his daughters. See State v. Schmidt, 92 Conn.App. 665, 675, 886 A.2d 854 (2005), cert. denied, 277 Conn. 908, 894 A.2d 989 (2006). The no contact order, in turn, was relevant to the defendant's state of mind in sending the letters and making the statements therein. Prior misconduct evidence admitted under § 4-5 of the Connecticut Code of Evidence must not only be generally relevant, but must be "relevant and material to at least one of the circumstances encompassed by the exceptions"; (internal quotation marks omitted) State v. Merriam, supra, 264 Conn. at 661, 835 A.2d 895; here, to complete the story of the charged crimes and to put other evidence in context. The only story that is completed and the only crime put in context by this evidence was the defendant's violation of the no contact order. It is true that evidence of the no contact order helped the jury understand the contents of the letters, which instructed M to tear up the letters and not show them to anyone. Such an understanding does nothing to make it more or less likely that the defendant committed the sexual assaults without the impermissible inference that his criminal tendency to violate the no contact order made it more likely that he committed the charged crimes. See Conn.Code Evid. § 4-5. Accordingly, we conclude that the no contact order amounted to evidence of uncharged misconduct that was not sanctioned by our rules and should not have been admitted into...