State v. Victor O.*

301 Conn. 163

20 A.3d 669

STATE of Connecticut

v.VICTOR O.*

No. 17983.

Supreme Court of Connecticut.

Argued Dec. 6, 2010.Decided June 7, 2011.

Elizabeth M. Inkster, senior assistant public defender, with whom, on the brief, was Kent Drager, former senior assistant public defender, for the appellant (defendant).Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Paul J. Ferencek and Maureen Ornousky, senior assistant state's attorneys, for the appellee (state).ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN and EVELEIGH, Js.PALMER, J.

A jury found the defendant, Victor O., guilty of one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2), and two counts of risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53–21(a)(2), as amended by Public Acts 2002, No. 02–138, § 4, arising out of the defendant's sexual abuse of C, the son of the defendant's wife.¹ The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to a term of thirty years imprisonment, execution suspended after fifteen years, and twenty years of probation. On appeal,² the defendant claims that the trial court improperly (1) excluded expert scientific testimony that he contends was relevant to show his lack of sexual interest in prepubescent males, (2) excluded evidence that C's mother had viewed pornographic and adult dating websites on the family computer, (3) permitted the state to elicit testimony from its expert regarding the purpose of forensic interviews of child abuse victims, and (4) allowed the state to refer to C as the “victim” in the jury's presence. The defendant also claims that he was deprived of his right to a fair trial as a result of numerous instances of prosecutorial impropriety during closing argument and, finally, that the trial court improperly sentenced him to a term of probation rather than to a term of special parole in connection with his conviction of first degree sexual assault. Although we agree that the trial court imposed an improper sentence in connection with the defendant's conviction of first degree sexual assault and reverse the trial court's judgment with respect to that sentence, we reject the defendant's other claims and, accordingly, affirm the trial court's judgment in all other respects.

The jury reasonably could have found the following facts. The defendant married C's mother in September, 2000, when C was six years old. The couple subsequently had a daughter together, C's half sister, who was born in June, 2002. At that time, the family was living in an apartment in the town of Greenwich. In December, 2002, however, they purchased a home in the town of Shelton. The night before they were scheduled to move, C's mother stayed in the Greenwich apartment so that she could supervise the movers the next day, and C spent the night alone with the defendant in the Shelton residence. That evening, while C was watching television, the defendant touched C's “private parts” with his hands and put “his penis in [C's] butt” but did not ejaculate. C, who was nine years old at the time, did not tell his mother what the defendant had done because he was afraid and embarrassed.

Additional incidents of sexual abuse and misconduct occurred after the move to Shelton. On several occasions, the defendant touched C in an inappropriate manner and showed him pornographic images on the family computer from a certain pornographic website (website X). On one occasion, the defendant called C into a room, masturbated and ejaculated in C's presence. On two other occasions, the defendant showed C a “dildo” sex toy that the defendant had purchased online. On at least one occasion, the defendant asked C to hold it; when C refused, the defendant penetrated his own anus with it in C's presence.

In February, 2003, C told his mother for the first time that the defendant had touched him inappropriately. C's mother immediately confronted the defendant, who claimed that he and C “were just fooling around” and that any touching that might have occurred was unintentional or had been misunderstood by C. That night, C slept with his mother in her bedroom while the defendant slept downstairs. The next morning, C left to spend the weekend with his biological father. While he was gone, the defendant continued to sleep downstairs. During the course of the weekend, C's mother told the defendant that she did not understand why C would say what he had said about the defendant if it were not true. The defendant replied that he and C “must have been wrestling and fooling around, and, maybe, I accidentally touched him.”

The following week, C's mother called the defendant at work and told him that she wanted him to move out of the house because she was uncomfortable with him being around C. The defendant agreed and later returned home to pick up some of his belongings. Over the next few days, C's mother and the defendant spoke several times on the telephone. During those conversations, the defendant insisted that he and C only had been “fooling around,” that C “might have taken something the wrong way,” and that he “could have touched [C] by accident.” Five days after the defendant left the house, C's mother relented and allowed the defendant to return home. At that time, she, the defendant and C held a family meeting at which the defendant told C “that he loved him [that] he would never hurt him and [that] ... he cared very much about [him]....” During that meeting, C sat with his head down and said nothing. The incidents of abuse resumed shortly thereafter, but C did not report them to his mother.

Several months later, on September 26, 2003, C was sitting on the defendant's lap in front of the family computer, looking at photographs of dogs to adopt, when the defendant placed his hand inside C's pants and began to touch C's penis. While this was happening, C's mother walked into the room, saw the defendant with his hand in C's pants and exclaimed, “what are you doing?” The defendant replied, “nothing.” She then turned to C and asked him whether the defendant had been touching him, to which C replied, with a scared look on his face, “no.” When C's mother began yelling at the defendant, the defendant left the room and went outside to smoke a cigarette. While the defendant was outside, C's mother again asked C whether the defendant had been touching him. C answered “yes” and stated that the defendant had “been doing it for a long time.” C's mother then went upstairs and locked the defendant out of the house. Twenty minutes later, however, she allowed him to reenter, but only to gather his belongings and to leave, which he did. The defendant never returned to live with C and his mother, and he and C's mother divorced soon thereafter.

At trial, the defendant testified that he never had touched C inappropriately or shown him pornography on the Internet. He also denied that C's mother ever had confronted him about inappropriate sexual conduct toward C before the defendant and C's mother permanently separated. He claimed that, contrary to the testimony of C's mother, he had moved out of the family residence for five days in February, 2003, as a result of marital problems unrelated to C. He also claimed that he had left the house on September 26, 2003, not because C's mother had seen him with his hand inside C's pants but, rather, because she became furious with him over his plans to adopt a dog. The defendant testified that his relationship with C's mother had deteriorated after their move to Shelton, that she had grown unhappy with his long work hours and the fact that he spent more time with his daughter than with C. During closing argument to the jury, defense counsel argued that C's mother had fabricated the allegations of sexual abuse simply as a way of ending her marriage to the defendant. Ultimately, the jury was not persuaded by these claims and found the defendant guilty of one count of sexual assault in the first degree and one count of risk of injury to a child in connection with the defendant's sexual assault of C on the night that he and C had stayed alone in Shelton. The jury also found the defendant guilty of one count of risk of injury to a child in connection with the incident in which C's mother discovered the defendant with his hand inside C's pants. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the trial court abused its discretion in excluding expert testimony regarding psychological testing that had been performed on him, in particular, the Abel Assessment of Sexual Interest (Abel test), which indicated that, at the time of testing, the defendant had no sexual interest in males or prepubescent males.³ Specifically, the defendant contends that the trial court improperly concluded that the results of the Abel test were not relevant to his motive to commit the charged offenses and were not sufficiently reliable to satisfy the standard for the admission of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by this court in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998).

Prior to the commencement of trial, the state filed a motion in limine to exclude evidence and testimony about a sexual evaluation report, prepared by Andrew Kass, a clinical psychologist, in which Kass concluded, on the basis of the Abel test, that the defendant lacked a sexual interest in prepubescent males. In support of its motion, the state maintained that the conclusions of the report were not relevant to the charged offenses and that the Abel test is not a scientifically valid tool for diagnosing the absence of sexual interest in children.

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