State v. Owen

Page 606

669 A.2d 606

40 Conn.App. 132

STATE of Connecticut v. Edward A. OWEN.

No. 13341.

Appellate Court of Connecticut.

Argued Oct. 2, 1995.

Decided Jan. 16, 1996.

Thomas J. Rechen, Special Public Defender, for appellant (defendant).

Jo Anne Sulik, Deputy Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and John H. Malone, Supervisory Assistant State's Attorney, for appellee (state).

Before O'CONNELL, LANDAU and HENNESSY, JJ.

FRANCIS X. HENNESSY, Judge.

The defendant, Edward A. Owen, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1) and risk of injury to a child in violation of General Statutes § 53-21. The court imposed a total effective sentence of twenty years, execution suspended after ten years, and probation for a period of five years.

The defendant claims that the court improperly (1) refused to charge the jury on (a) the timeliness of the child's complaint, (b) the credibility of a child witness and (c) the failure of the state to call the child's therapist as a witness, (2) refused to grant a mistrial based on the state's improper characterization of two of its witnesses as experts, (3) failed to grant an acquittal on the sexual assault in the first degree count because there was insufficient evidence to find that the offense was committed on or after the effective date of the statute, October 1, 1989, and (4) admitted constancy of accusation testimony. We affirm the judgment of conviction of sexual assault in the second degree and risk of injury to a child and reverse the conviction of sexual assault in the first degree.

On the basis of the victim's testimony, the jury reasonably could have found the following facts. The victim was born October 20, 1979, and the alleged acts took place on various dates between January 21, 1988, and late 1989. The victim was fourteen years of age at the time of trial. During the period of time when the acts occurred, she resided in an apartment with her mother and the defendant. After the victim's mother arrived at work in the morning, she would call the victim to ensure that she was preparing for school and to request that she awaken the defendant. On many occasions, when the victim woke the defendant, he would grab her hand and make her touch his penis. On one occasion the defendant grabbed the victim's head and forced his penis into her mouth. The defendant on other occasions requested or paid the victim to dress in leotards and then wrestled with her on a bed or couch touching her breasts as they wrestled.

The last incident of improper conduct, referred to during trial as the "couch incident," allegedly took place on or after October 1, 1989. The victim testified that during that incident the defendant touched the victim's breast with his penis, pushed her down on the couch, removed her pants and touched her vagina with his tongue. This last incident, referred to in the information as cunnilingus, forms the basis for the sexual assault in the first degree conviction.

I

A

The defendant contends that the court improperly refused to instruct the jury that it may draw a negative inference from the victim's failure to report the incidents of sexual abuse immediately. The incidents complained of allegedly took place during 1988 and 1989. Approximately six months after the last incident, the victim told her mother that the defendant had touched her improperly. It was not until late 1992, however, that the victim told a number of other people the details and extent of the abuse that had taken place during 1988 and 1989. The defendant argues that the long delay in reporting the abuse so weakened the victim's credibility that it required an instruction. The defendant requested the following instruction: "However, there has also been some evidence that the complainant did not make any complaint at the time of the alleged incident. You may consider the failure to make a timely complaint as bearing upon the credibility of the witness' later complaint and testimony in court, unless this failure has been satisfactorily explained."

The court instead gave a constancy of accusation instruction to the jury urging them to "carefully consider all of the circumstances under which the statements were made and particularly ... whether what she says has been constant and consistent." Additionally, the jury had the opportunity to listen to and to observe the victim's testimony about the allegations on both direct and cross-examination. This testimony made them aware of the length of time between the alleged offenses and the reporting of them to family and authorities.

The defendant offers no authority, nor can we find any, that requires the court to instruct the jury that the failure of the victim to make a timely complaint requires a satisfactory explanation of the delay in order to leave intact the credibility of the victim. Our Supreme Court has clearly stated that the evaluation of the timing of a victim's statements should be left in the hands of the jury. State v. Parris, 219 Conn. 283, 292, 592 A.2d 943 (1991). The jury had before them the testimony of the victim and the witnesses as well as the court's instructions that the weight of the evidence and the credibility of the witnesses was for them to determine. Therefore, we conclude that the trial court did not improperly refuse to charge them as requested on the victim's failure to report promptly.

B

The defendant next claims that the court abused its discretion by refusing to charge the jury on the credibility of a child witness. The defendant requested the following charge: "In weighing the testimony of a child, you should take into consideration his youth. A young child may be more apt to err than an older person or may be amenable to any influence or suggestion which may be made to him by older persons and particularly persons closely related to him. His imagination may mislead him; its products may, to him, take on all the semblances of actual fact and he will relate them as such. The sanctity of the oath and the solemnity of legal proceedings may appeal to him less than to an adult. Perhaps these suggestions are sufficient to indicate to you that in weighing the testimony of a child, his very youth is a factor you should not overlook."

The defendant's contention that the court in Wilhelm v. Czuczka, 19 Conn.App. 36, 561 A.2d 146 (1989), upheld a jury instruction almost identical to that requested in this case is unavailing. In Wilhelm, the court upheld the instruction on the ground that it was not an abuse of discretion to so instruct in that case. Id. at 40, 561 A.2d 146.

" 'The prevailing view ... is that a trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness, and, if so, the nature of that instruction.' " State v. James, 211 Conn. 555, 567-68, 560 A.2d 426 (1989). The victim-witness in this case was eight or nine years of age when the offenses took place and fourteen years of age at the time of trial. We do not find that the court abused its discretion in not giving the requested instruction.

C

The defendant further contends that the court improperly failed to instruct the jury on the failure of the state to call the victim's therapist, Maureen Bond, to testify. The gravamen of the defendant's argument is that a new trial is required because the court improperly failed to give a Secondino ¹ instruction and did not allow the defendant to argue the Secondino rule and its application to the jury. We disagree.

The following additional facts are relevant to this issue. Bond was present when the victim told Officer Steven A. Cybulski, a youth officer with the Enfield police department, and Ann Tuller, a social worker with the department of children and families, about the incidents of sexual abuse. Both Cybulski and Tuller gave testimony concerning the details of abuse that had been related to them by the victim. The jury also heard testimony from the victim's cousin, Desiree Sevarino and Sevarino's mother, Roxanne Paradise, that the victim had told them about the defendant's improper conduct.

"It is an ancient maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.... 'The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause....' There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce." Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960). This rule is also applicable to criminal cases. State v. Annunziato, 169 Conn. 517, 363 A.2d 1011 (1975). To satisfy the availability requirement, the defendant must put forth sufficient evidence before the jury to support a conclusion that the witness was available at the time of trial. State v. Daniels, 180 Conn. 101, 110, 429 A.2d 813 (1980).

"To have the jury charged on the rule, the party claiming the benefit of it must show that he is entitled to it.... A possible witness whose testimony is for any reason comparatively unimportant, cumulative or inferior to what has been offered should be dispensed with on the general ground of expense and inconvenience, without anticipation that an inference may be invoked." (Citations omitted; internal quotation marks omitted.) State v. Adams, 14 Conn.App. 119, 128-29, 539 A.2d 1022 (1988). "Whether an absent witness has superior or peculiar information and whether an adverse inference...