State v. Lester , 324 Conn. 519 ( 2017 )

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STATE OF CONNECTICUT v. EDWARD LESTER
(SC 19183)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued November 9, 2016—officially released January 17, 2017
Michael S. Taylor, assigned counsel, with whom were
Matthew C. Eagan, assigned counsel, and, on the brief,
James P. Sexton, assigned counsel, for the appellant
(defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Matthew C. Gedansky, state’s attor-
ney, and Elizabeth C. Leaming, senior assistant state’s
attorney, for the appellee (state).
Opinion
ROGERS, C. J. In this case, we are asked to decide
whether the trial court improperly excluded evidence
of the victim’s1 prior sexual assault allegation and the
subsequent investigation when it was offered by the
defendant, Edward Lester, to show the victim’s lack
of credibility and an alternative source of the victim’s
advanced sexual knowledge. The defendant was
charged with two counts of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (2),
three counts of sexual assault in the fourth degree in
violation of General Statutes § 53a-73a (a) (1) (a), and
one count of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2), based on allegations
that on multiple occasions he sexually assaulted his
girlfriend’s daughter, who was eight years old at the
time of the alleged conduct. During the course of the
trial, the trial court granted the state’s motion in limine
to exclude evidence of the victim’s prior sexual con-
duct, including a prior allegation of sexual abuse made
by the victim, when she was five years old, against her
father’s then wife. The jury found the defendant guilty
on all counts and the trial court thereafter rendered
judgment in accordance with the verdict. See footnote
3 of this opinion. The defendant appeals to this court,
claiming that the trial court improperly excluded evi-
dence of the prior allegation and subsequent investiga-
tion. We dismiss the defendant’s appeal as moot
because the defendant has not challenged all of the trial
court’s bases for its evidentiary ruling.
The jury reasonably could have found the following
facts. During the victim’s third grade school year, the
victim lived with her father, stepmother, stepbrother
and stepsister. The victim would visit with her mother
on the weekends and on days when she was not in
school. At that time, the victim’s mother was living in
an apartment with the defendant, who was her boy-
friend. On six occasions when the victim was visiting
her mother, while her mother was in the shower or
otherwise not present, the defendant sexually assaulted
the victim.
The following additional facts and procedural history,
found in the record, are relevant to this appeal. Prior
to trial, the state filed a motion in limine to exclude
evidence of any alleged sexual abuse of the victim by
third parties pursuant to General Statutes (Rev. to 2011)
§ 54-86f (4)2 (rape shield statute). The state filed this
motion because the defendant’s investigator had
authored reports indicating that the victim may have
been sexually assaulted by individuals other than the
defendant.
At trial, the defendant’s theory of the case was that
the victim had made a false allegation against him
because she was unhappy that her mother was pregnant
with the defendant’s child and the victim disliked the
defendant because he was black. In furtherance of this
theory, the defendant sought to elicit testimony that
when the victim was five years old, she had made a
false allegation of inappropriate touching against her
father’s then wife. The defendant claimed that this false
allegation was relevant to the victim’s credibility. He
further claimed that the investigation of the previous
false allegation was an independent source of advanced
sexual knowledge for the victim.
The state opposed admission of the evidence on the
grounds that: (1) the defendant had not established that
the prior allegation was false in order to allow the
evidence to be admitted under the rape shield statute;
(2) the evidence was inadmissible under § 6-6 (b) (2)
of the Connecticut Code of Evidence, which prohibits
the use of extrinsic evidence to attack a witness’ credi-
bility; (3) the prior allegation was too remote in time;
and (4) it would create a collateral issue because the
evidence of the prior allegation was too tenuous.
After an evidentiary hearing, the trial court orally
granted the state’s motion in limine to exclude evidence
of the victim’s prior sexual conduct stating: ‘‘I’m going
to grant the state’s motion [in limine], and I’m going to
tell you why. There is a strange tension between the
fourth subsection of the rape shield [statute] and the
[Connecticut Code of Evidence] as well as the common
law of evidence. It is almost ironic that the rape shield
[statute] is cited in an attempt to get in evidence that
is otherwise inadmissible . . . . Now, among the
court’s reasons for granting the state’s motion in limine
are, number one, the defense has not provided, was
unable to provide credible evidence that [the victim’s]
complaint about her [father’s former wife] was not true.
. . . The complaint was remote—five years ago . . .
and that five years, by the way, is one-half of her total
life. . . . [T]here is a particular difference with a child.
We assume that adult sexual assault victims have cer-
tain knowledge that we assume that five year olds
don’t have.
‘‘Now, some of the cases rely on previous assaults
on children to establish their basis of knowledge. Here
what [the victim] complained of was simply bad touch
against [her father’s former wife]. . . . That knowledge
is really very, very basic and would not have given [the
victim] a clue really as to the acts allegedly perpetrated
on her by the defendant, which were of a different
degree, a different degree of severity, a different degree
of penetration, different body parts used by the defen-
dant that’s alleged, and would not have provided—
whether it happened or [the victim] was merely reciting
something that schoolchildren are taught about good
touch/bad touch, what makes you feel sad, pales in
significance with what the defendant has alleged to
have done here, and would not have provided an ade-
quate basis of knowledge for [the victim] at age eight
to make these very detailed claims.
‘‘And finally, should the court allow this evidence in,
there would be an opportunity for confusion of the jury,
and there would be most likely a minimum of eight
witnesses, which would be not only a trial within a trial,
it would be a second trial. . . . [T]herefore, for all the
aforementioned reasons, the state’s motion is granted.’’
(Citation omitted.)
The jury found the defendant guilty on all counts.3
Subsequently, the trial court sentenced the defendant
to a total effective sentence of forty-five years of incar-
ceration followed by five years of special parole and
lifetime sex offender registration. This appeal followed.
The defendant asserts that the trial court improperly
excluded evidence that the victim made a prior false
allegation of sexual assault against her father’s then
wife because in determining whether the prior false
allegation was admissible under the rape shield statute,
the trial court, rather than the jury, determined that
the evidence of falseness was not credible. He further
claims that the trial court improperly excluded evidence
of the prior investigation because the rape shield statute
does not apply to evidence of a prior investigation when
the investigation itself is being offered to show an alter-
native source of advanced sexual knowledge.
The state asserts that the defendant’s claims are not
reviewable by this court because the defendant has not
challenged all of the grounds relied upon by the trial
court in its evidentiary ruling. Specifically, according
to the state, in addition to finding the evidence of false-
ness not credible, the trial court also relied upon the
remoteness in time of the prior accusation and the
confusion that admission of the evidence would cause
for the jury. The state further asserts that the defen-
dant’s claim that the prior investigation should have
been admissible to show an alternative source of
advanced sexual knowledge for the victim is not review-
able because it was not distinctly raised at trial, where
the defendant focused his argument on the prior allega-
tion. The state advocates that even if the defendant’s
claims are reviewable, the trial court properly applied
the rape shield statute to both the prior allegation and
the prior investigation, and properly excluded the evi-
dence because it was irrelevant.
In his reply brief, the defendant claims that the trial
court did not rely on multiple independent grounds for
excluding evidence of the prior allegation and investiga-
tion, but, instead, described factors that the court found
were relevant to its application of the rape shield stat-
ute. The defendant claims that he has fully challenged
the trial court’s application of the rape shield statute
and, therefore, his claim is not moot and is reviewable
by this court. We disagree and, therefore, dismiss this
appeal as moot.4
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction . . . . Put-
man v. Kennedy, 279 Conn. 162, 168, 900 A.2d 1256
(2006); see also State v. McElveen, 261 Conn. 198, 204,
802 A.2d 74 (2002); In re William D., 97 Conn. App.
600, 603, 905 A.2d 696 (2006), aff’d, 284 Conn. 305, 933
A.2d 1147 (2007).’’ (Internal quotation marks omitted.)
Lyon v. Jones, 291 Conn. 384, 392, 968 A.2d 416 (2009).
‘‘The fundamental principles underpinning the moot-
ness doctrine are well settled. We begin with the four
part test for justiciability established in State v. Nar-
dini, 187 Conn. 109, 445 A.2d 304 (1982). . . . Because
courts are established to resolve actual controversies,
before a claimed controversy is entitled to a resolution
on the merits it must be justiciable. Justiciability
requires (1) that there be an actual controversy between
or among the parties to the dispute . . . (2) that the
interests of the parties be adverse . . . (3) that the
matter in controversy be capable of being adjudicated
by the judicial power . . . and (4) that the determina-
tion of the controversy will result in practical relief to
the complainant. . . . Id., 111–12.’’ (Internal quotation
marks omitted.) Lyon v. Jones, supra, 291 Conn. 393.
‘‘[I]t is not the province of appellate courts to decide
moot questions, disconnected from the granting of
actual relief or from the determination of which no
practical relief can follow. . . . Ayala v. Smith, 236
Conn. 89, 93, 671 A.2d 345 (1996). In determining moot-
ness, the dispositive question is whether a successful
appeal would benefit the plaintiff or defendant in any
way. Hechtman v. Savitsky, 62 Conn. App. 654, 659,
772 A.2d 673 (2001).’’ (Emphasis in original; internal
quotation marks omitted.) Lyon v. Jones, supra, 291
Conn. 394.
Where an appellant fails to challenge all bases for a
trial court’s adverse ruling on his claim, even if this
court were to agree with the appellant on the issues
that he does raise, ‘‘we still would not be able to provide
[him] any relief in light of the binding adverse finding[s]
[not raised] with respect to those claims.’’ Id., 395.
Therefore, when an appellant challenges a trial court’s
adverse ruling, but does not challenge all independent
bases for that ruling, the appeal is moot. Id.; see also
Nationwide Mutual Ins. Co. v. Pasiak, 161 Conn. App.
86, 89 n.2, 127 A.3d 346 (2015) (‘‘[if] alternat[ive]
grounds . . . unchallenged on appeal would support
the trial court’s judgment, independent of some chal-
lenged ground, the challenged ground that forms the
basis of the appeal is moot because the court on appeal
could grant no practical relief to the complainant’’
[internal quotation marks omitted]).
In the present case, the trial court granted the state’s
motion in limine to exclude evidence of the victim’s
prior allegation, and related investigation, on the
grounds that: it was not admissible under the rape shield
statute because the defendant had not provided credible
evidence that it was false; it was remote in time; it
was dissimilar from the victim’s allegation against the
defendant; and it was a collateral issue that would con-
fuse the jury. The defendant claims that the trial court
considered the latter three grounds only in conjunction
with the application of the rape shield statute and not
as independent grounds for excluding the evidence. We
disagree. Regardless of whether those considerations
were pertinent to the application of the rape shield
statute, they also weighed into the court’s determina-
tion of whether the evidence was relevant and, further,
whether any relevance was outweighed by the danger
of confusion of the issues or misleading the jury.5 In
fact, the state, in its argument on the motion in limine,
which it made immediately prior to the court’s oral
ruling, addressed the issue of whether the evidence
would raise a collateral issue separately from its claim
that its admission would be a violation of the rape
shield statute. Accordingly, the court was responding
to separate and distinct evidentiary objections. Because
there are independent bases for the trial court’s exclu-
sion of the evidence of the prior allegation and investiga-
tion that the defendant has not challenged in this appeal,
even if this court were to find that the trial court improp-
erly applied the rape shield statute, we could grant no
practical relief to the defendant. Therefore, the defen-
dant’s claims are moot and this court lacks subject
matter jurisdiction.
This appeal is dismissed.
In this opinion the other justices concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. General Statutes (Supp.
2016) § 54-86e.
2
General Statutes (Rev. to 2011) § 54-86f provides in relevant part: ‘‘In
any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-
71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim
may be admissible unless such evidence is . . . (4) otherwise so relevant
and material to a critical issue in the case that excluding it would violate
the defendant’s constitutional rights. Such evidence shall be admissible only
after a hearing on a motion to offer such evidence containing an offer of
proof. . . . If the proceeding is a trial with a jury, such hearing shall be
held in the absence of the jury. If, after hearing, the court finds that the
evidence meets the requirements of this section and that the probative value
of the evidence outweighs its prejudicial effect on the victim, the court may
grant the motion. . . .’’
3
After the jury’s verdict, the defendant pleaded guilty to a charge of being
a persistent serious sexual offender pursuant to General Statutes § 53a-40
(d), which the state had charged in a separate part B information. The trial
court conducted the sentencing hearing for both the guilty verdict from the
jury trial and the guilty plea on the part B information at the same time.
4
Because we dismiss this appeal as moot, we do not address the parties’
other claims.
5
Section 4-3 of the Connecticut Code of Evidence provides: ‘‘Relevant
evidence may be excluded if its probative value is outweighed by the danger
of unfair prejudice or surprise, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time or needless presenta-
tion of cumulative evidence.’’