State v. Shaw ( 2014 )

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STATE v. SHAW—DISSENT
ESPINOSA, J., dissenting. Today’s majority decision
turns back the clock to a time when victims of sexual
assault, whether they were children or adults, were
subjected at trial to undue harassment, prejudice, fear
of embarrassment, and a violation of their sexual pri-
vacy. This decision eviscerates the rape shield statute
with the unfortunate consequence that defendants can
now circumvent the very protections which the statute
was intended to provide by asserting unsubstantiated
self-serving claims and conjecture. This is a particularly
troubling outcome for children with a prior history of
being sexually abused. Therefore, I respectfully dissent.
I conclude that the trial court, after affording the
defendant, Christopher Shaw, with multiple opportuni-
ties to present a sufficient offer of proof and holding
an evidentiary hearing, correctly determined that the
testimony and questioning sought by the defendant was
not relevant and was more prejudicial than probative.
Because I do not dispute the majority’s recitation of
the facts that the jury reasonably could have found, I
do not repeat them here.1 I do, however, question the
majority’s legal conclusions. In deciding that the defen-
dant’s proposed testimony and the proposed ques-
tioning of A, the victim, K, her older brother, and B,
their mother,2 were relevant and more probative than
prejudicial, the majority glosses over the pretrial pro-
ceedings and legal arguments that transpired outside
the presence of the jury and disproportionately focuses
on the trial court’s misplaced reliance on State v. Rolon,
257 Conn. 156, 777 A.2d 604 (2001). By ignoring the
procedural posture that led the court to its legal conclu-
sion, the majority overlooks the reality that, notwith-
standing his motions and arguments, the defendant had
not proffered any admissible evidence that A had
engaged in sexual intercourse with K three days prior
to the defendant’s arrest or that A and B were
attempting to cover up the defendant’s allegations of
said conduct.
The defendant made three offers of proof throughout
the pretrial and trial proceedings. The first offer was
made by the defendant in connection with a motion to
present evidence of the prior sexual conduct of A and
resulted in a hearing. The second offer of proof was
made during the cross-examination of B, and the final
offer of proof was made by way of the defendant’s
motion for reconsideration. A close look at these pro-
ceedings leads to the conclusion that the defendant
failed to overcome the burden imposed on him by the
rape shield statute.
I
The defendant first sought the introduction of evi-
dence of prior sexual conduct of A pursuant to the
rape shield statute, General Statutes § 54-86f,3 through
a motion that he filed on February 27, 2008. In that
motion, the defendant sought a hearing so that he could
‘‘present evidence concerning the prior sexual history
of the alleged complainant, [A], to be used in either the
defendant’s case-in-chief or in rebuttal following the
state’s presentation on direct or rebuttal, of sexual injur-
ies sustained by . . . [A], which [the state] claims
resulted from this incident, in order to provide an alter-
nate source for such injuries and as evidence relating
to the motive of several witnesses to fabricate.’’ In sup-
port of his motion, the defendant asserted that an emer-
gency room medical report and expert disclosures by
the state identified A’s injuries as having occurred
recently, that discovery indicated that A had stated that
the defendant and B were not getting along because
the defendant had made allegations that A and K
recently had been engaged in sexual misconduct, that
a video camera had been seized by the police ‘‘which
may show the inside of the home on the evening of the
alleged offense,’’ and that the fact that A and B knew
the defendant had made allegations of inappropriate
sexual conduct between A and K gave them a motive
to fabricate evidence against the defendant to prevent
his claim from being revealed.
That same day, when the parties and the court were
discussing outstanding motions, the trial court marked
as a court exhibit the discovery packet that defense
counsel had received the previous day, which had
formed the basis for the defendant’s motion. The packet
contained a report from a social worker who inter-
viewed A following the assault, which stated, ‘‘[B]
advised [the] police that [the defendant] had been telling
[B] she needs to watch her fifteen year old son [K]
as [the defendant] believed [K] and [A] were having
intercourse. As a result, a video camera was placed in
the home so that [K] and [A] could be watched. However
[the defendant] is the only one in the home [who] knows
how to work the video camera. According to [the] police
report there was no evidence of [A] and [K] being sexu-
ally involved. However the video camera did show [the
defendant] turning off the camera. . . . [A] denies
[ever] being touched by [K]. [A] stated [K] and [the
defendant] do not get along because [the defendant]
has alleged that [K] is touching [her].’’ The discovery
packet also contained a referral to the Child Sexual
Abuse Clinic made by the social worker that stated,
‘‘[the defendant] has alleged that [A’s] older sibling [K]
was having intercourse with [A] however [A] denies.’’
The next day, on February 28, 2008, defense counsel
Auden Grogins argued the motion. She asserted that
an emergency room report written by Mark Cicero, a
physician, disclosed that A had recent vaginal tears.
Grogins represented that the defendant’s proposed tes-
timony and other evidence would establish that another
party was responsible for the injuries and that B was
investigating the defendant’s allegations of sexual inter-
course between A and K. Grogins asserted that the
defendant ‘‘would testify that he caught [A and K] engag-
ing in sexual relations and that he told [B] . . . of this
suspected activity and that . . . with [the] permission
of [B] the defendant . . . set up a video . . . to tape-
record any inappropriate activity with [A and K] . . . .’’
Grogins maintained that the defendant would assert
that the inappropriate activity that was ongoing up until
the time of this incident or within forty-eight hours of
this incident was the cause of A’s vaginal tears. She
also argued that recently disclosed discovery indicated
that a social worker4 had reported that A acknowledged
that the defendant was not getting along with others
in the household and that B was investigating the defen-
dant’s allegations of sexual contact between A and K.
Grogins asserted that this information was admissible
under the first and fourth exceptions to the rape shield
statute because it was relevant to the defendant’s theory
that A’s fabrication of the allegations against the defen-
dant was motivated by her desire to prevent the discov-
ery that she and K were having sexual intercourse.5
The state argued that nothing proffered by defense
counsel was relevant to the source of A’s injury. It noted
that Grogins’ failure to identify the time period in which
A and K had allegedly been engaged in sexual inter-
course prevented the state from establishing whether
the alleged sexual acts between A and K were too
remote in time from the charged incident. The state
further argued that nothing on the videotape, which it
previously represented would not be admitted during
trial because it did not contain any relevant footage,
suggested that A and K were having sexual intercourse,
and that A had never claimed to have had sexual inter-
course with K, only with a different brother. It stated
that the defendant was the only person who had claimed
that A and K were having sexual intercourse and that
he offered no proof to show that it actually occurred.
The state then argued that the defendant had failed to
satisfy the five factor test set forth in State v. Rolon,
supra, 257 Conn. 183–84.
Grogins responded that, to satisfy the source of injury
exception, the defendant would testify that he had
observed recent sexual activity between A and K. When
the court asked if the defendant wanted a hearing at
that time, Grogins pointed to the social worker’s report,
which indicated that A had stated that K and the defen-
dant did not get along because the defendant alleged
that K was touching A. The court then asked defense
counsel if K was ready to be offered as a witness to
support their theory, and Grogins responded that the
defendant would be the only one to offer that evidence.
Defense counsel Steven Jacobson then stated that
they were not prepared for a hearing at that time. Jacob-
son argued that ‘‘the witnesses we would need to pre-
sent, which would include [B], will be here for the trial,
and it . . . wasn’t presented to us that we should
appear with witnesses this afternoon, ready . . . to
present on this issue, because as the rule itself says, it
talks about basically having these hearings, in effect,
during trial . . . .’’ He then asked, based on the offer
of proof, that the court allow the witnesses to testify
before the jury, then hold the hearing outside the pres-
ence of the jury and make a decision at that time. The
state also asked that any questions related to the offer
of proof be asked outside the presence of the jury. The
court stated that it was prepared to rule on the motion
at that time, but that the parties could ‘‘always revisit
issues based upon certain evidence during the course
of the trial . . . .’’ It then asked if defense counsel
wanted the court to hold its decision on any particular
issue until it arose.
At that point, the state interjected, stating that Cicero,
the physician who examined A, would not be testifying
until after A and B had testified. Jacobson expressed
a concern that they would not be able to cross-examine
A and B regarding the defendant’s theory that K was
the source of A’s injuries because there would not be
any evidence concerning A’s injuries when they testi-
fied. When the court asked defense counsel what they
wanted the court to do, Jacobson reiterated that their
offer of proof was that the defendant would testify that
he caught A and K in sexually inappropriate conduct
within several days before the incident. When the court
indicated that defense counsel could conduct the hear-
ing at that time with the defendant as a witness, Jacob-
son resisted, stating ‘‘our problem is, putting the
defendant on now doesn’t get us there because we need
what [A] would say and [B] would say to . . . make
our proof, which is why I believe we should do it
through the court . . . .’’ (Emphasis added.) The court
asked Jacobson if the defendant was the source of the
information regarding any sexual improprieties
between A and K. Jacobson responded that the defen-
dant was the source of the information, but that A and
B might be a source of information as well. The court
responded, ‘‘it was advanced to this court by way of
argument, several arguments, that [the defendant] was
the one who . . . identified this issue among the sib-
lings, and as a result, whatever was set up, he set it up,
and you indicate [that] there’s no tapes to support any,
at least videotaping any conduct, and you ask the court
now to make a finding that . . . something has hap-
pened clearly . . . . I am not persuaded at this time
that that evidence is going to be allowed.’’
The court again asked if defense counsel was ready
to proceed on their motion, noting that the motion had
asked for the hearing and that hearings usually require
evidence from the witness stand. They indicated that
they were not ready because their perception was that
the hearing would take place during trial. The court
told defense counsel to proceed on their motion. After
initially denying their request for additional time, the
court granted their request for a short break to allow
defense counsel an opportunity to explain to the defen-
dant what was happening.
After the break, the defendant elected to proceed on
his motion and testified to the following. Three days
prior to his arrest, when the defendant had come out
of the bathroom at B’s apartment, he saw A and K
in the living room in an awkward position, and there
appeared to be inappropriate touching. In an immediate
response, the defendant pressed ‘‘record’’ on his cell
phone and left it on the table in front of the doorway
to the kitchen while he took a shower. After his shower,
the defendant listened to the recording, which ‘‘sounded
like intercourse, moaning, sex,’’ then confronted A with
it. After she listened to the recording, A told the defen-
dant that a couple of months prior, K had come into
her room and had had sexual intercourse with her, that
they had been having sexual intercourse ever since, and
that they had been having sexual intercourse while the
defendant was in the shower.6 When B returned home
from work, the defendant told B what he had seen and
let her listen to the recording. When B confronted A,
however, she denied having sexual intercourse with K.
Afterward, B spoke to the defendant and they pur-
chased a surveillance camera.
After the defendant concluded his testimony, the
court asked if there was any additional testimony that
either party wanted to offer. The state notified the court
that the recordings from the defendant’s cell phone
had been tested and that the results did not match the
defendant’s claim, but that a laboratory technician was
not available to testify, only the state’s investigator, who
spoke to someone from the laboratory on the telephone.
Defense counsel objected because they did not have
the test results, and the state subsequently conceded
that it had no evidence to offer.
Counsel then made closing arguments. Jacobson
argued that the defendant’s testimony about A’s state-
ment that she had had sexual intercourse that day with
K was relevant to both subdivisions (1) and (4) of § 54-
86f, the rape shield statute. A’s statement was relevant
to the exception in subdivision (1) of § 54-86f because
it explained the medical evidence, which stated that
the injuries to A were up to seventy-two hours old.
Defense counsel further argued that the defendant’s
testimony was relevant to the exception in subdivision
(4) of § 54-86f because A ‘‘now knows, according to
[the defendant], that three days before this incident,
where we would claim she fabricated the sexual assault,
that [the defendant] ha[d] gotten an admission from her
that she [admitted] sexual assault by [K]. That would
be a motive of [A] to want [the defendant] to be arrested
and out of the household. [B] also has a similar motive.’’
Jacobson argued that the questions sought to be asked
were admissible because the defendant could impeach
the testimony of A and B if they contradicted the defen-
dant’s claim.
The state argued that the defendant had not satisfied
his burden because he had not demonstrated that the
prior act had clearly occurred. The state continued:
‘‘According to the defendant, he saw somebody in an
awkward position and an inappropriate touching. There
was no specificity on what acts he’s claiming occurred,
no acts at all, except [that] there was an inappropriate
touching and in an awkward position. That’s the only
thing he . . . said that happened. . . . And [A],
according to the defendant, said certain things; how-
ever, [she] has denied it to all law enforcement since
the day he claimed this at the scene. . . . I think . . .
the two main arguments [are] that the prior acts did
not clearly [occur], because everybody’s denying it. It’s
the defendant offering self-serving hearsay as to what
he can testify to on the stand. [A] has never claimed
any of this. And . . . we’re also touching upon an issue
that the rape shield statute was intended to [protect].
The legislative intent of that statute was to not embar-
rass a victim of whatever age, to just throw in anything
that you think could possibly be brought up to embar-
rass her. The statute was . . . intended to prevent that,
and the probative value of the evidence that they submit
must outweigh its prejudicial effect. And [the state does
not] believe that the evidence [defense counsel is]
intending to admit, that has no basis except what the
defendant claims, is [anything] but prejudicial to the
victim in this case.’’
The next day, on February 29, 2008, prior to the start
of evidence, the court denied the motion. The court
found that, based on the defendant’s testimony of what
he saw and did not see, the facts did not support a
continuing evidentiary hearing. It found that the prior
acts had not clearly been defined, that they did not
resemble the present case and that they were not clearly
relevant to a material issue. The court continued: ‘‘[T]he
evidence is not . . . necessary to the defendant’s case
. . . based upon the facts presented . . . . And cer-
tainly, the probative value of the evidence does not
outweigh its prejudicial effect. We have an . . . eleven
year old child and . . . inferentially, the court has
[been] asked pursuant to § 54-86f to have a discussion
in this court about sibling sex. That will not be allowed,
it is not relevant. There is no reference to sibling sex
among these children unless you say, Judge, I have to
ask it. I will excuse the jury, and I’ll hear your offer at
the time.’’
Although not discussed by the majority or disputed
by the parties, it is important to note, as will become
apparent, that the defendant’s initial offer of proof, by
way of his written motion and oral argument, satisfied
his preliminary burden.7 ‘‘In the first step of [the] two
part process [set forth in § 54-86f], the defendant bears
the burden of showing that the proffered evidence over-
comes the presumption, inherent in § 54-86f, that evi-
dence of the sexual conduct of a rape victim is
inadmissible and satisfies the statute’s requirement that
only evidence relevant to the case, rather than evidence
relevant merely to demonstrate the unchaste character
of the victim, be admissible.’’ State v. Smith, 280 Conn.
285, 296, 907 A.2d 73 (2006). ‘‘The showing must be
sufficient to enable the trial court to make an informed
ruling in connection with the exercise of its discretion
on the issue. That showing must be made as part of
the offer of proof as a prerequisite to obtaining an
evidentiary hearing to determine the admissibility of
evidence of the victim’s prior sexual conduct.’’ State v.
Manini, 38 Conn. App. 100, 114, 659 A.2d 196, cert.
denied, 234 Conn. 920, 661 A.2d 99 (1995).
‘‘Offers of proof are allegations by the attorney . . .
in which he represents to the court that he could prove
them if granted an evidentiary hearing. . . . The pur-
pose of an offer of proof has been well established by
our courts. First, it informs the court of the legal theory
under which the evidence is admissible. Second, it
should inform the trial judge of the specific nature of
the evidence so that the court can judge its admissibil-
ity. Third, it creates a record for appellate review. . . .
Additionally, an offer of proof should contain specific
evidence rather than vague assertions and sheer specu-
lation.’’ (Citation omitted; internal quotation marks
omitted.) State v. Martinez, 295 Conn. 758, 771, 991
A.2d 1086 (2010). The offer of proof can be made by
the testimony of a witness in the absence of the jury
or by a good faith representation by counsel of what
the witness would say if questioned. See C. Tait & E.
Prescott, Connecticut Evidence (4th Ed. 2008) § 1.29.4,
p. 77.
In the initial motion and during argument, the defen-
dant proffered documentary and testimonial evidence
to support his position that A and K had engaged in
sexual intercourse three days prior to the incident for
which he was charged and that his revelation of this
inappropriate sexual contact between the siblings
prompted A and B to fabricate the story that the defen-
dant had sexually assaulted A so that they could hide
the accusations.8 In the motion, he identified a medical
report and expert witness disclosure that indicated that
A’s injuries had occurred within three days of the inci-
dent, and a social worker’s report which stated that B
had informed her that the defendant had made such
accusations, as well as making the representation that
a surveillance camera had been purchased by B to moni-
tor her children’s behavior. During argument on the
motion, defense counsel represented that the defendant
would testify that he caught A and K having ‘‘sexual
relations.’’ This proffer was sufficient to satisfy the first
step in the two step process and necessitated the evi-
dentiary hearing, which the court held.
Having established that the offer of proof was suffi-
cient to entitle the defendant to a hearing, I nevertheless
disagree with the majority’s conclusion that the defen-
dant’s proposed testimony, submitted during the hear-
ing, or the proposed questioning of A, K and B were
both relevant and more probative than prejudicial.9 The
purpose of a hearing pursuant to the rape shield statute
‘‘is to assist the trial court in making its determination
regarding whether the evidence is relevant to the case
and falls within one of the statute’s exceptions, and
whether its probative value outweighs the prejudicial
impact on the victim.’’ State v. Smith, supra, 280 Conn.
298. Moreover, ‘‘a clear statement of the defendant’s
theory of relevance is all important in determining
whether the evidence is offered for a permissible pur-
pose.’’ (Internal quotation marks omitted.) State v. Cecil
J., 291 Conn. 813, 825, 970 A.2d 710 (2009).
I take issue with the majority’s analysis primarily for
two reasons. First, in making its determination of the
admissibility of the defendant’s testimony pursuant to
the rape shield statute, the majority does not limit its
analysis to testimony that would be admissible under
the rules of evidence. The purpose of the rape shield
statute is to prohibit the introduction of otherwise
admissible evidence of the sexual conduct of a victim
because it is highly inflammatory. Rather than create
an alternate vehicle for admissibility, therefore, the rape
shield statute imposes an additional bar to the admis-
sion of proposed evidence that falls under its purview.
The rape shield statute does not suspend the rules of
evidence to allow, for example, inadmissible hearsay,
just because such evidence would be relevant or more
probative than prejudicial to an issue at trial. Neverthe-
less, the majority implicitly does just that.
In its recitation of the defendant’s relevant testimony,
the majority cites his statements that ‘‘he had observed
A and K in an awkward position, had seen them inappro-
priately touching, had heard ‘moaning’ and other sounds
on the cell phone recording suggesting they were having
sexual intercourse, had been told by A that she and K
were ‘having sex’ while the defendant was in the
shower, and, after informing B about what he had seen
and heard, had accompanied B to a department store
where she purchased a video surveillance camera.’’10
The majority fails to acknowledge, although argued by
the parties and noted by the court in its ruling, that A’s
alleged admission that she and K had been having sexual
intercourse is inadmissible hearsay.11 Indeed, the major-
ity relies on this inadmissible hearsay to determine that
the proposed testimony was both relevant and more
probative than prejudicial.12 Such inadmissible hearsay
should not be considered by the trial court or this court
in determining whether the defendant proffered any
admissible evidence of the prior sexual conduct of A
pursuant to the rape shield statute. The only evidence
that should be considered by a court when determining
the admissibility of the prior sexual conduct of a victim
pursuant to the rape shield statute is evidence that also
would be admissible pursuant to the rules of evidence.13
My second issue with the majority opinion is that it
combines, as did the defendant, all of the testimony as
it pertains to both exceptions when determining admis-
sibility pursuant to the rape shield statute, rather than
considering only the evidence that was applicable to
each exception. By doing so, the majority is able to
conclude that all of the evidence is relevant and more
probative than prejudicial. If, however, one looks at the
proposed testimony that would have supported each
exception separately, after determining which parts of
the proposed testimony would have been admissible
pursuant to the rules of evidence, the correct conclu-
sion is that the proposed testimony for each exception
was inadmissible under the rape shield statute, albeit
for different reasons and, thus, any questioning related
to those exceptions was also inadmissible.
Careful scrutiny of the record reveals that there was
no relevant evidence submitted to support the defen-
dant’s contention that K was the source of A’s injuries.
In his offer of proof, the defendant proffered that the
source of A’s injuries was the alleged sexual intercourse
that A had engaged in with K three days prior to the
defendant’s arrest, while he had been showering. Thus,
he was required to provide relevant evidence that A
and K had engaged in sexual intercourse, not at some
undefined time, but during the time that he was in the
shower, three days prior to his alleged assault of A.
The defendant’s testimony pertinent to this exception
was that prior to taking his shower, the defendant wit-
nessed A and K in an awkward position and that there
was inappropriate touching. While the defendant was
showering, he recorded sounds on his cell phone. After
his shower, the defendant listened to the recording and
heard sounds that he characterized as moaning and sex.
These statements are not relevant evidence, inferen-
tial or otherwise, that A and K had actually engaged in
sexual intercourse while the defendant was showering.
At most, these ‘‘facts’’ support the defendant’s position
that he merely believed that A and K had engaged in
sexual intercourse. ‘‘Inferences to be drawn from the
facts proved must be reasonable and logical, and the
conclusions based on them must not be the result of
speculation and conjecture.’’ Palmieri v. Macero, 146
Conn. 705, 708, 155 A.2d 750 (1959). Contrary to what
defense counsel proffered during argument on the
motion, the defendant did not testify that he saw A and
K engaged in sexual intercourse or any act resembling
sexual intercourse in the time period prior to or after
his shower nor did he describe their appearance, cloth-
ing or mannerisms after taking his shower. Moreover,
there was no evidence other than the defendant’s state-
ments of his conclusions that the purported sounds on
the cell phone recording were the sounds of A and K
having sexual intercourse. Thus, based on the facts
presented during his testimony, any conclusion that A
and K were engaged in sexual intercourse while the
defendant was showering would be the result of specu-
lation and conjecture.
Moreover, at no point in the proceedings did defense
counsel ever proffer that A would testify that she and
K had been engaged in inappropriate touching that day,
that she had engaged in sexual intercourse that day
with K, that she had told the defendant that she and K
had engaged in sexual intercourse on that day or that
she had heard the cell phone recording. In fact, Jacob-
son implicitly admitted that he did not know what A’s
testimony would be and, when presented with the
opportunity to present additional witnesses, declined
to do so. Because the defendant did not proffer or
submit any evidence to corroborate the defendant’s
testimony regarding the sounds on the cell phone
recordings and no other witness testified, the court
essentially was left with only the defendant’s unsubstan-
tiated beliefs that he had heard noises he associated
with sex on his cell phone and that A and K had engaged
in sexual intercourse while he was in the shower. Such
beliefs were not relevant to the issue of the source of
A’s injuries, as they did not tend to prove whether A
actually had sexual intercourse with K while the defen-
dant was in the shower. See State v. Brauneis, 84 Conn.
222, 233, 79 A. 70 (1911) (defendant’s testimony about
his belief regarding complainant’s behavior properly
excluded, as his belief did not tend to prove complain-
ant engaged in behavior);14 see also State v. Williams,
20 Conn. App. 263, 269–70, 565 A.2d 1365 (1989) (court
properly excluded questions of whether victim had been
sexually active during three days prior to incident where
victim and mother testified during hearing that victim
was not sexually active but defendant testified that he
believed that she was). Although it is true that § 54-86f
‘‘encompasses inferential as well as direct evidence of
sexual conduct’’; State v. Rinaldi, 220 Conn. 345, 354,
599 A.2d 1 (1991); a defendant’s belief about the sexual
conduct of a victim does not tend to prove that conduct,
and is not, therefore, relevant. Compare id., 354–55 (wit-
ness’ proposed testimony regarding admissible state-
ments complainant had made and her appearance after
exiting woods with third person constitute inferential
evidence of sexual conduct); see also State v. Jones, 8
Conn. App. 44, 48, 510 A.2d 467 (1986) (‘‘§ 54-86f limits
proof to evidence of sexual conduct, which phraseology
. . . permit[s] only specific instances of conduct and
prohibit[s] all proof of reputation or personal opinion of
the victim’s sexual conduct’’ [emphasis added; internal
quotation marks omitted]).
In addition, none of the documentary evidence relied
on by the defendant in his offer of proof actually sug-
gested that A and K had engaged in sexual intercourse
at any time or that A would disclose that she and K
had sexual intercourse.15 The social worker’s report
noted that A denied the defendant’s allegations and
referenced police reports that stated that there was no
evidence of A and K being sexually involved. Thus, even
if one could conclude that the defendant’s testimony
was relevant to his claim that A and K had sexual inter-
course while he was in the shower three days prior to
his arrest, given the remainder of the evidence that was
before the court, these unfounded allegations would
have been more prejudicial than probative, and his testi-
mony was simply not sufficient to overcome ‘‘the pre-
sumption, inherent in § 54-86f, that evidence of the
sexual conduct of a rape victim is inadmissible . . . .’’
State v. Smith, supra, 280 Conn. 296. Thus, the court
did not abuse its discretion in denying the defendant’s
initial motion under this exception.
With respect to the fourth exception to the rape shield
statute, the defendant’s theory was that A and B fabri-
cated the allegations against him after he informed them
of his discovery that A and K were having sexual inter-
course in order to cover up his discovery. The defen-
dant’s testimony pertinent to this exception was that
he told A and B about his suspicions and that after B had
a conversation with A, the defendant and B purchased
a video camera to monitor A and K. Although such
testimony was relevant to a portion of his theory, that
he suspected A and K were having sexual intercourse
and that he informed A and B of his suspicions, such
evidence was more prejudicial than probative because
the rest of his theory was contradicted by the record.
Thus, any testimony by the defendant, A, or B on this
issue was properly deemed inadmissible.
The contradictory evidence in the record significantly
weakens the probative value of the defendant’s pro-
posed testimony. As I previously concluded, there was
no admissible evidence that A and K had engaged in
sexual intercourse three days prior to the defendant’s
arrest. The state also represented during argument that
A had always denied having sexual intercourse with K.
Moreover, the social worker’s report revealed that both
A and B had told the social worker that the defendant
had made these accusations about A and K having sex-
ual intercourse, and that B had told police officers about
the defendant’s allegations. If the purpose of accusing
the defendant of sexual assault was to cover up the
defendant’s alleged discovery of A and K having sexual
intercourse, it is unlikely that A and B would have
repeated his accusations to both police officers and a
social worker. See State v. Kulmac, 230 Conn. 43, 56, 644
A.2d 887 (1994) (concluding that court did not violate
defendant’s right to confront witnesses by excluding
evidence of prior sexual conduct when record did not
support defendant’s claim that victims falsely accused
him of assaults perpetrated by others in order to shield
others from harm where victims disclosed other perpe-
trators to police, and other perpetrators had been con-
victed at time of defendant’s trial). Given the fact that
there was no admissible evidence of A and K engaging
in sexual intercourse, and that there was evidence indi-
cating that A and B were not attempting to cover up
the defendant’s allegations, the defendant’s proposed
testimony about his alleged discovery and any questions
to A and B about his allegations were more prejudicial
than probative.16 Thus, the court did not abuse its discre-
tion in denying the initial motion pursuant to this
exception.17
II
The defendant’s second offer of proof occurred dur-
ing the cross-examination of B, who was the second
witness to testify. During the cross-examination of B,
Grogins requested that the jury and B be excused so
that she could make an offer of proof. When the court
asked what the offer of proof was, Grogins stated: ‘‘I
want to ask about [the defendant] being concerned
about the behavior of the children. I want to ask about
the fact that [B] was also concerned about the behavior
of her children, without getting into why. And I want
to ask about the fact that [B] was so concerned that
she went out and bought a video surveillance camera,
so she could monitor her children’s behavior.’’ When
the court asked how such questioning was relevant to
B’s testimony about what she had seen on the night of
the incident, Grogins responded that it implicated her
motive, bias and interest to testify against the defendant
for making claims about her children. The state then
argued that those questions were irrelevant to B’s testi-
mony about what she claimed to have witnessed and
the court’s prior ruling barred the proposed questions.
The court ruled that the line of questioning was not
relevant.
The court’s ruling was proper because the defendant
did not make a sufficient offer of proof that warranted
a different result. In contrast to his initial offer of proof,
when the defendant identified what the proposed testi-
mony would be as well as documentary evidence to
support his position, at the second offer of proof, Grog-
ins did not provide the court with anything beyond what
had been presented at the hearing. She did not proffer
what B’s testimony would be. Even though B was on
the stand when Grogins asked to make her offer of
proof, she never requested a hearing so that B could
testify outside the presence of the jury. Rather than
providing any additional evidence to support the defen-
dant’s proffer, Grogins only requested that the court
allow her to ask B questions in the presence of the jury.
Because the defendant’s proffer did not ‘‘inform the
trial judge of the specific nature of the evidence so that
the court [could] judge its admissibility’’ or ‘‘contain
specific evidence rather than vague assertions and
sheer speculation’’; (internal quotation marks omitted)
State v. Martinez, supra, 295 Conn. 771; the court did
not abuse its discretion in denying the defendant’s
request to question B with respect to the defendant’s
allegations of sexual intercourse between A and K.
III
The final offer of proof took place after the direct
examination of A, the third witness to testify. Before
the cross-examination of A began, on March 3, 2008,
the court addressed the defendant’s motion to recon-
sider its rulings with respect to all of his claims initially
brought by way of his first motion.18 The defendant
requested permission to testify about his observations
of ‘‘inappropriate sexual behavior between [A] and [K]
within three days of the accusation made against him,’’
about the recorded ‘‘sounds of interactions between [A]
and [K] three days before the accusation in this case
that were consistent with the sound of persons engaging
in sexual intercourse,’’ about his confrontation of ‘‘[A]
with the recording and [A] admit[ting] to [the defendant]
that she had just had sexual intercourse with [K] and
had also done so in the past,’’ and about him telling
‘‘[B] about the clear admission of sexual intercourse.’’
The defendant also requested permission to recall B
so that she could be questioned about the defendant’s
statements to her regarding his confrontation with A
and her subsequent actions in arranging for surveillance
of the children. He asked to call K and question him
about being the source of A’s injuries, about his being
alone with A during the three days prior to the alleged
assault and about what K saw and heard during the
date of the alleged assault. The defendant asked for
permission to question A about having sexual inter-
course with K, about being alone with K during the
three days prior to the alleged assault, about her knowl-
edge that the defendant had made accusations that she
had had sexual intercourse with K, and about her state
of mind as a motive to fabricate because she did not
want the defendant to continue making such accusa-
tions. Finally, the defendant requested permission to
question A and B about A’s failure to disclose that
she had engaged in sexual intercourse with her oldest
brother two years prior, ‘‘as evidence of a pattern of
covering up interfamilial incest,’’ and about B’s request
that there be no prosecution of the oldest brother once
the conduct was disclosed.
Additionally, in this motion to reconsider, the defen-
dant asserted that his ‘‘whole theory of defense is that
[A] and [B] contrived the accusation in this case to
cover up [the defendant’s] discovery that [A] was having
sexual intercourse with [K].’’ He maintained that evi-
dence supporting this contention was that A had cov-
ered up being sexually assaulted by a different brother
two years prior and that B had chosen to waive prosecu-
tion. The defendant also averred that he would present
this evidence through his own testimony and the ques-
tioning of A, B and K.
During oral argument, Grogins contended that the
questioning of the witnesses and the testimony of the
defendant were necessary to show that someone else
had committed the crime. She reiterated that the defen-
dant’s claim was that ‘‘[B’s and A’s] allegations against
the defendant . . . [were] fabricated to cover up the
. . . ongoing incestual relationship that was taking
place with [K] . . . .’’ The court responded: ‘‘Let’s have
the argument. I’ve heard the argument and I’ve heard
the basis for that from [the defendant] and the alleged
tape and the alleged recording.’’ When defense counsel
asked if the court’s ruling barred the defendant from
calling K to question him about these issues, the court
replied, ‘‘I’m not barring you from calling anybody. You
can call anybody that you like. Testimony in this court-
room must be relevant to the issues at hand, material
. . . . I’ve heard this issue in the past . . . and I want
you to place your theory of relevance clearly on this
record. I have not heard anything that would support
your position that the rape shield statute should afford
this court to allow that testimony at this time.’’
The state also responded: ‘‘As far as [this] motion
goes, we’ve heard everything . . . I don’t think there’s
anything new. In fact, we’re also now wanting to ques-
tion [A] about hearsay, about what the defendant said
to her, what the defendant thought, and all this other
stuff. It’s not admissible, Your Honor . . . . This is just
the defendant introducing self-serving hearsay in order
to shift the focus . . . . I don’t believe any of this is
admissible.’’
The court then denied the motion, stating: ‘‘There is
no evidence coming . . . into this court regarding any
incestual relationships with [A] and [K], none. . . .
Now, if you want to bring [K] in to make an offer of
proof to preserve it for the appellate record . . . that’s
up to you . . . . What I’ve heard does not support in
any form or fashion that evidence coming into the court-
room of law as it has any bearing on the issue here at
hand, nothing. . . . [T]hat’s the rape shield statute and
the reason that the legislature has decided to implement
the statute. It’s clearly a wholesale assault . . . [and]
it has no bearing. If it had some relevance, I would
allow it. I would. . . . All that is . . . speculation . . .
and hearsay and not admissible—even under most evi-
dentiary rulings it wouldn’t be admissible.’’ (Empha-
sis added.)
Grogins then made a record of the questions that
she would have asked K and A.19 With respect to the
proposed questions for A, the state argued that ‘‘[e]very
question that was just asked is self-serving hearsay
aside from the last one. Everything that was just asked
is self-serving hearsay on behalf of the defendant. She
can’t testify as to what the defendant may have said at
some other time. There’s no exception that fits this,
Your Honor. I’m asking that all of [it] be denied.’’ The
state also clarified that the court’s ruling did not prohibit
the defendant from calling anyone as a witness. After
defense counsel responded that the questions set forth
were not hearsay because they were asking for A’s
response, the court ruled. It stated: ‘‘None of those
questions, if proffered in that manner, should be asked
in court in front of the jury to this person. None of
them. They suggest, at least direct, the attention of the
[jury] to areas that this court finds immaterial, irrele-
vant, confusing, and in no way that support any theory
of relevance I have heard from the defense. The rape
shield statute protects . . . clearly, those issues you
wish to raise. Bias, interest and motive is another issue.
I have not heard those—if those questions were asked
for bias, interest and motive . . . . [H]ere are the facts.
Something happened in that room. The players, as I see
it, are three people . . . . Now, if something bears on
that, I’ll hear it and it will be allowed. I haven’t heard
any of those questions that bear on that. [B], if you
believe her, [A], if they believe her, the person in that
room was one . . . male person and identified as your
client, period. That’s it. Now, whether somebody else
was there before [B] got there, I don’t know, it’s not in
evidence, whether somebody did something else before
[B] got there on that day, I don’t know, that would
impact upon whatever issue you claim you’re being
prohibited from offering, and it is not. Those questions
are not to be offered and will not be in this trial on the
charge of sexual assault in the first degree as it relates
to the evidence I have heard and know of so far, it will
not be.’’
After dealing with other matters, the court returned
to the motion one last time. Jacobson reiterated that
the defendant’s position was that K, rather than the
defendant, had caused the injuries to A and that A and
B had fabricated the allegations against the defendant
to cover up the sexual relationship between A and K.
The court repeated its ruling that the evidence was not
relevant. It stated that the evidence was immaterial,
irrelevant, had no bearing on the trial and would not
be allowed.
In his final offer of proof, the defendant failed, once
again, to proffer any evidence that would have sup-
ported his contention that A and K had been engaged
in sexual intercourse or that A and B were attempting
to cover up the defendant’s accusations. The motion
asked to question A, B and K about the alleged events
surrounding the defendant’s accusations, but did not
proffer what the witnesses’ testimony would be. During
oral argument, Grogins made a record of what questions
she would have asked the witnesses in the presence of
the jury, but never once disclosed what their testimony
would be or asked for a hearing so that the court could
evaluate their proposed testimony, even after the court
explicitly indicated that K could testify at a hearing
outside the presence of the jury.20 Faced with the
absence of any evidence to support the defendant’s
theory of relevance, the court correctly denied his
motion to reconsider.
In short, after the court denied his initial motion,
while leaving available to the defendant the opportunity
to make additional offers of proof as the trial pro-
gressed, the defendant did not provide the court with
any evidence, potentially relevant or not, that would
have necessitated a change in its ruling. Even though the
defendant was given multiple opportunities to provide
relevant evidence to support his theory, including spe-
cifically stating that the defendant could have a hearing
to submit the proposed testimony of K, he failed to do
so. Moreover, the defendant did not renew his request
during his case-in-chief. Although the court improperly
focused on the Rolon factors when articulating its initial
decision, when considering the court’s ruling with every
reasonable presumption in its favor, I cannot conclude
that the court abused its discretion in denying the defen-
dant’s motions because, at its essence, the court found
that the defendant had not presented any admissible
evidence to support his theory, only self-serving hearsay
and conjecture. Although the rape shield statute does
permit the introduction of evidence of a victim’s prior
sexual conduct, including reasonable inferences drawn
from facts, under limited circumstances, it does not
allow a defendant to inject speculation and innuendo
into a trial.
The majority opinion renders meaningless the
requirement of showing evidence of a victim’s prior
sexual conduct and runs contrary to the purposes and
policies advanced by the rape shield statute. See State
v. Christiano, 228 Conn. 456, 472, 637 A.2d 382, cert.
denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36
(1994). Before the decision of the majority in the present
case, defendants were required to provide evidence in
the form of testimony from witnesses or documentation
to overcome the burden imposed on them by the rape
shield statute. A determination of whether the court
had abused its discretion had been based on more than
a defendant’s self-serving statement and proposed ques-
tions to the witnesses. See State v. Smith, supra, 280
Conn. 293–95 (defendant proffered DNA report and sub-
stance of expert’s testimony in written offer of proof
and proffered proposed expert testimony during hear-
ing); State v. Ritrovato, 280 Conn. 36, 48–49, 905 A.2d
1079 (2006) (defendant proffered proposed testimony
of two witnesses during hearing); State v. DeJesus, 270
Conn. 826, 833, 856 A.2d 345 (2004) (defendant prof-
fered police report and victim’s proposed testimony
during hearing held outside presence of jury); State v.
Kulmac, supra, 230 Conn. 51 (proffered written state-
ment of victim); State v. Rinaldi, supra, 220 Conn. 351
(defendant proffered proposed testimony of complain-
ant’s friend at hearing on motion); State v. Williams,
supra, 20 Conn. App. 269 (defendant proffered proposed
testimony of victim and mother).
Because of the holding of the majority opinion, in
order to overcome the heavy presumption of the rape
shield statute which ‘‘was enacted specifically to bar
or limit the use of prior sexual conduct of an alleged
victim of a sexual assault because it is such highly
prejudicial material’’; (internal quotation marks omit-
ted) State v. Ritrovato, supra, 280 Conn. 53; all a defen-
dant need do is state that he believes that the victim
had sexual intercourse with another person and that she
made statements to him confirming this belief, without
submitting or even proffering any evidence that the
prior sexual conduct or the victim’s alleged admission
actually took place. A defendant can now concoct an
unverified narrative, knowing or, as in the present case,
having a good faith belief, that the victim will deny
the unsubstantiated allegations.21 He can question the
victim about his groundless assertions, thus, allowing
the jury to speculate about the sexual propensity of the
victim. Moreover, even if the victim denies the allega-
tions during examination, the defendant will be able
to use the mere introduction of the topic in closing
argument to attack inappropriately the credibility of
the victim. This is precisely what the rape shield statute
intended to prevent.
The majority attempts to soften its decision by con-
cluding that the testimony of A, B and K regarding the
prior sexual conduct of A can be elicited only during
the defendant’s case-in-chief after a proper foundation
has been laid. Ostensibly, that foundation would be laid
by the defendant’s testimony before the jury at trial.
Moreover, by allowing this defendant to question in
front of the jury A, B, and K based on his own self-
serving statements that are primarily based on inadmis-
sible hearsay and unsubstantiated beliefs, we are dilut-
ing the defendant’s burden under the rape shield statute
to the detriment of all victims of sexual assault. ‘‘Requir-
ing, as the statute does, that the strong policies . . .
be overcome only by evidence which does not have the
inherent infirmity of reputation or lay opinion evidence
. . . can hardly be viewed as violating [a] defendant’s
constitutional rights to confront the victim or to present
a defense.’’ (Emphasis added.) State v. Jones, supra, 8
Conn. App. 48. This result cannot be what the legislature
envisioned when it enacted the statute. Accordingly,
I dissent.
1
For ease of discussion, I set forth the procedural facts of each offer of
proof, followed by an analysis of the court’s ruling. I emphasize, however,
that I consider the offers of proof collectively to arrive at my conclusion
that the court properly concluded that the defendant did not meet his burden
of demonstrating that the proffered testimony was admissible under an
exception to the rape shield statute, General Statutes § 54-86f.
2
See footnote 4 of the majority opinion.
3
General Statutes § 54-86f provides: ‘‘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 (1) offered by the defendant on the issue of whether the defendant was,
with respect to the victim, the source of semen, disease, pregnancy or injury,
or (2) offered by the defendant on the issue of credibility of the victim,
provided the victim has testified on direct examination as to his or her
sexual conduct, or (3) any evidence of sexual conduct with the defendant
offered by the defendant on the issue of consent by the victim, when consent
is raised as a defense by the defendant, or (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. On motion of either party the court may order such hearing held in
camera, subject to the provisions of section 51-164x. 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. The testi-
mony of the defendant during a hearing on a motion to offer evidence under
this section may not be used against the defendant during the trial if such
motion is denied, except that such testimony may be admissible to impeach
the credibility of the defendant if the defendant elects to testify as part of
the defense.’’
4
Grogins did not identify the social worker during oral argument; however,
in the discovery packet that she had asserted was the basis for the motion,
there was only one social worker report.
5
Grogins also identified subdivision (2) of § 54-86f, which allows the
defendant to offer evidence on the issue of the credibility of the victim,
provided the victim has testified on direct examination as to her sexual
conduct. See footnote 3 of this dissenting opinion. That subdivision, how-
ever, was not raised again during arguments.
6
The state objected to the question that elicited that portion of the defen-
dant’s testimony in which he stated that A had told him that she and K had
been having sexual intercourse for several weeks on the ground of hearsay.
The question posed to the defendant was: ‘‘And did she say anything with
regard to that?’’ Defense counsel responded that it went to the defendant’s
state of mind as to what he did next and to A’s statement to him. After the
court heard the answer, it struck that portion of the defendant’s testimony.
7
I disagree with the majority’s assertion that the defendant is not required
to allege detailed facts to satisfy his preliminary burden that the proffered
evidence was relevant. Such a showing is exactly what the defendant must
make in his offer of proof. See C. Tait & E. Prescott, Connecticut Evidence
(4th Ed. 2008) § 1.29.4, p. 76 (when making offer of proof, ‘‘counsel should
. . . [state] the purpose of the offer and [disclose] the content or purport
of the expected testimony’’ [emphasis added]).
8
In acknowledging that the defendant proffered documentary and testimo-
nial evidence that purported to support his position, I do not agree that the
evidence actually did so. Rather, I highlight the sufficiency of the first step
of the process in order to underscore the disconnect between what was
proffered in his motion and what was presented to the court during the
hearing.
9
As support for its contention that the evidence proposed by the defendant
at the hearing satisfied his burden to demonstrate that the proposed evidence
satisfied one of the exceptions to the rape shield statute, the majority inaccu-
rately attempts to use the fact that I acknowledge that the offer of proof
was sufficient to warrant a hearing. The majority does not appear to appreci-
ate the nuances of my argument. The offer of proof is merely a ‘‘preliminary
showing that the evidence sought to be explored in the evidentiary hearing
is relevant. . . . That showing must be made as part of the offer of proof
as a prerequisite to obtaining an evidentiary hearing to determine the
admissibility of evidence of the victim’s prior sexual conduct.’’ (Emphasis
added.) State v. Manini, supra, 38 Conn. App. 114. By focusing on the fact
that I conclude that the defendant satisfied his burden on the written offer of
proof, and ignoring the substance of my analysis—that the actual proposed
evidence put forth during the hearing, as opposed to the representations
made during argument of ‘‘the evidence the defendant intended to intro-
duce’’—was insufficient for admissibility under the rape shield statute, the
majority misses my point.
It is unclear whether the majority is conflating the relevancy determination
that is made during the defendant’s preliminary offer of proof with the
relevancy determination that is made after a hearing, or simply overlooking
it. An offer of proof consists of allegations that an attorney represents he
could prove if granted an evidentiary hearing. State v. Martinez, supra, 295
Conn. 771. Thus, at the offer of proof stage, the relevancy determination is
based only on the attorney’s representations. The hearing, however, is a
defendant’s opportunity to present to the court the evidence sought to be
introduced. The defendant must, at that juncture, prove the relevance of
the actual proposed evidence. State v. Smith, supra, 280 Conn. 298. Just
because a defendant satisfies the initial burden during the offer of proof
does not necessarily mean that the evidence is admissible. A defendant must
satisfy both relevancy inquiries in order for the proposed evidence to be
admissible. And, as I explain subsequently in this opinion, because the
defendant’s testimony did not conform to his attorneys’ representations of
what the evidence would be, and because the substance of the defendant’s
testimony failed to overcome the burden of the rape shield statute, any
questioning of the witnesses about this issue would be improper.
Moreover, the majority’s assertion that the trial court did not conduct a
sufficient hearing because it precluded the defendant from calling A, B and
K fails to take into account, as does the entire opinion, the complete record
in order to support its theory. Even presuming that the initial hearing was
insufficient, the majority ignores the fact that the defendant failed to take
advantage of numerous opportunities to seek an additional hearing. See
footnote 17 of this dissenting opinion. If the hearing was insufficient, it was
the defendant’s doing.
10
Query why the majority characterizes this testimony as ‘‘allegations,’’
as allegations are commonly referenced in the absence of evidence. See
Black’s Law Dictionary (9th Ed. 2009) (allegation defined as ‘‘[s]omething
declared or asserted as a matter of fact, esp[ecially] in a legal pleading; a
party’s formal statement of a factual matter as being true or provable,
without its having yet been proved’’).
11
The majority recites irrelevant procedural history following the trial
court’s initial hearsay ruling and ignores the rest of the record. When the state
argued that much of the defendant’s testimony was inadmissible hearsay, and
particularly that A’s alleged admission about having sexual intercourse with
K for several weeks was hearsay, defense counsel responded that her state-
ment was an admission by a party opponent and that it went to the state
of mind of what the defendant did next. The first exception does not apply
to A’s statement because she was not a party to the action. See Conn. Code
Evid. § 8-3 (1). The second exception, arguably the state of mind exception,
does not apply because it only goes to the declarant’s state of mind, not
the listener’s. See Conn. Code Evid. § 8-3 (4). Thus, no hearsay exception
was argued to the court and the statement is inadmissible hearsay. During
argument on the defendant’s motion to reconsider, the state repeatedly
objected to the introduction of any out-of-court statements of A because
they were hearsay and no exception applied. The trial court agreed, stating:
‘‘If it had some relevance, I would allow it. . . . All that is . . . speculation
. . . and hearsay and not admissible—even under most evidentiary rulings
it wouldn’t be admissible.’’ Thus, the trial court clearly made an unchallenged
ruling regarding the inadmissibility of A’s statements.
Moreover, by arguing that the trial court only made a ruling on the rele-
vancy of A’s statements, the majority appears to imply that a trial court
cannot rule evidence inadmissible on more than one ground. Even if the
trial court did rule that the evidence submitted through the defendant’s
testimony was not relevant, such a holding does not and, indeed, did not
preclude it from also excluding the evidence on the ground that it was
inadmissible hearsay.
12
In a further effort to justify the allowance of inadmissible hearsay, the
majority claims that ‘‘[i]f A testified initially that she did not tell the defendant
that she had had sexual intercourse with K while the defendant was in
the shower, the defendant could have impeached her testimony with his
testimony that she admitted to having sex with K after the defendant con-
fronted her with the cell phone recording.’’ In doing so, the majority fails
to cite to the rule of evidence which states that a witness’ testimony can
be impeached with inadmissible hearsay.
13
The majority appears to assume that I am claiming that it solely relied
on the defendant’s testimony of A’s inadmissible hearsay to come to its
conclusion that the defendant’s testimony was relevant. This is not correct.
When the majority addresses the state’s argument that the court correctly
precluded the proffered evidence because ‘‘only by means of impermissible
speculation could the jury have found that A’s injuries were the result of
prior sexual conduct with K,’’ it, erroneously in my opinion, considers all
of the defendant’s testimony, including the inadmissible hearsay statement
of A’s alleged admission and irrelevant testimony such as the defendant
accompanying B to purchase a video camera. This is an incorrect way to
view the evidence and the court’s legal conclusion.
14
Although the rape shield statute was enacted in 1982; Public Acts 1982,
No. 82-230; even in 1911, unsubstantiated beliefs about the victim’s prior
sexual conduct were not admissible.
15
I observe that the majority fails to discuss the documentary evidence
submitted by the defendant in his offer of proof when analyzing whether
he has met his burden of proving the admissibility of the evidence of A’s
prior sexual conduct.
16
This court has also held that the failure to produce some evidence
during the offer of proof and hearing that contradicts a victim’s claim that
she had not engaged in sexual intercourse rendered the defendant’s proffered
evidence of the victim’s prior sexual acts irrelevant to understanding her
motive or bias to fabricate. See State v. Crespo, 303 Conn. 589, 604–605, 35
A.3d 243 (2012); see also State v. Siering, 35 Conn. App. 173, 177–78, 644
A.2d 958 (court did not abuse discretion in denying defendant’s request to
admit evidence of prior sexual conduct of victim where defendant proffered
no evidence that contradicted victim’s testimony regarding source of injury),
cert. denied, 231 Conn. 914, 648 A.2d 158 (1994). In the present case, the
defendant would have needed to provide evidence that contradicted the
statements contained in the social worker’s report and the representations
of the state. After his testimony, the court gave the defendant an opportunity
to submit the proposed testimony of additional witnesses who could have
produced such contradicting evidence, and he failed to take advantage of
the opportunity. Thus, inquiry before the jury into this issue also would
have been irrelevant.
17
The majority’s assertion that the court did not allow the defendant to
question A, B and K when the defendant made his offer of proof is flatly
contradicted by the record. The record is replete with instances of the
defendant choosing not to move forward with a hearing and the testimony
of A, B and K. Those instances include: (1) Jacobson indicating that B would
be necessary and that they were not ready for a hearing at that time; (2)
the court asking Grogins before the hearing if she intended to offer K as a
witness during the hearing, and her stating that the defendant would be the
only one to testify; (3) the court explicitly asking, after the defendant testified
at the hearing, if there was any other evidentiary testimony, and Grogins,
again, declining; (4) during cross-examination of B, Grogins asking that B
be excused before making an offer of proof, but never asking for a hearing;
and (5) on the motion for reconsideration, the court explicitly stating, ‘‘Now,
if you want to bring [K] in to make an offer of proof to preserve it for the
appellate record . . . that’s up to you.’’
18
The motion to reconsider also sought reconsideration of the court’s
ruling with respect to the defendant’s motion for presentation of third party
culpability evidence, as both motions sought the introduction of the same
evidence.
19
Grogins noted that she would ask K: ‘‘If he had sex with [A] in the last
three days, prior to the defendant’s arrest, if he had an ongoing sexual
relationship with [A], if [B] was aware of it, if it was brought to their attention
by the defendant, if . . . he was aware that there was video surveillance
of their behavior that was instituted by the defendant for the purpose of
the fact that the defendant found out and confronted them about their . . .
inappropriate sexual behavior.’’ She identified the following questions that
she would ask A: ‘‘I would like to ask . . . [A], if, one . . . the defendant,
ever accused her of having inappropriate behavior with [K], not saying what
the inappropriate behavior is, but if he did. If . . . she has knowledge about
[K] and [the defendant] not getting along. If she . . . was mad at [the
defendant] for what he said about her and [K]. If she thought [the defendant]
was lying about what he said [about the inappropriate behavior]. . . . If
. . . she was aware if [the defendant] told [B] or made [B] aware of the
inappropriate behavior. What was [B’s] reaction, if she knows. . . . If [the
defendant] wasn’t living at your house anymore, then he couldn’t be saying
lies about you. And lastly, [A], did you have sex with anyone other than
[the defendant] three days before this incident?’’
20
The majority’s interpretation, in failing to appreciate the difference
between the trial court’s ruling that evidence of sibling sex is not admissible
in the presence of the jury and its invitation to conduct a further hearing
outside the presence of the jury, renders its reasoning questionable. See
footnotes 9 and 12 of the majority opinion. The trial court’s initial ruling
was that there would be ‘‘no reference to sibling sex among these children
unless you say, Judge, I have to ask it. I will excuse the jury, and I’ll hear
your offer at the time.’’ Thus, the trial court prohibited the defendant from
any questioning about sexual conduct between A and K in the presence of
the jury. The reasonable import of the trial court’s ruling, however, was
that it would entertain an offer of proof and hearing outside the presence
of the jury. Accordingly, the majority’s declarations that the trial court’s
‘‘ruling that the evidence proffered by the defendant was irrelevant and
immaterial prevented the defendant from calling A, B and K to testify at a
further evidentiary hearing regarding the facts alleged in support of his
defense’’ is questionable for two reasons. First, the defendant never again
asked for a hearing whereby A, B or K would testify outside the presence
of the jury. At the second offer of proof, Grogins asked if she could question
B and the court ruled that the line of questioning was irrelevant. At the
third offer of proof, the trial court specifically stated that the defendant
could call K to testify at a hearing.
21
The majority again misconstrues my argument in stating that my only
issue is that the evidence presented by the defendant ‘‘was not sufficiently
precise to prove conclusively that A engaged in sexual intercourse with K
three days before the alleged sexual assault’’ and that I am asking the ‘‘trial
court to decide whether the evidence is sufficient to support the defendant’s
claim that he was not responsible for [A’s] injuries.’’ Instead of addressing,
with any substance or detail, my substantive analysis, the majority simply
characterizes my argument as ‘‘unnecessary hyperbole.’’ My point is that
the defendant did not satisfy the intentionally high burden that the rape
shield statute imposes because the defendant did not put forth evidence
that would allow a fact finder to draw permissible inferences with respect
to his claim under the first exception of the rape shield statute and was not
more probative than prejudicial under the fourth exception. I have never
even intimated that the evidence must be conclusive, I only have stressed
that if a defendant is going to provide inferential evidence of a victim’s prior
sexual conduct, the evidence must be such that a jury could make permissible
inferences, not resort to speculation. In the present case, the defendant
presented nothing more than speculation. Moreover, we are required to
examine the court’s ruling under an abuse of discretion standard, not substi-
tute our discretion for that of the trial court. This majority decision does
eviscerate the rape shield statute because it allows speculation to be put
before a jury.