State v. Samuel U. ( 2023 )

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STATE OF CONNECTICUT v. SAMUEL U.*
(SC 20740)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Alexander and Cradle, Js.
Syllabus
Convicted, after a trial to the court, of the crimes of sexual assault in the
first degree and risk of injury to a child in connection with his sexual
abuse of the victim, T, the defendant appealed to this court. The abuse
occurred between 2007 and 2010, during which time T was between
seven and ten years old. Prior to trial, the state provided written notice
of its intent to present evidence of four episodes of the defendant’s
prior sexual misconduct to prove his propensity to engage in such
conduct, pursuant to the relevant provision (§ 4-5 (b)) of the Connecticut
Code of Evidence. The notice did not identify the victims of the prior
misconduct but included the approximate dates when the misconduct
occurred and the nature of the misconduct, the respective dates of
the defendant’s convictions for each episode, and the docket numbers
associated with those convictions. The third entry in the notice con-
cerned the sexual assault of a four year old female in 1993, which
involved digital penetration and vaginal and anal intercourse. The defen-
dant did not contest the adequacy of the notice before trial. At trial, the
state offered the testimony of S, the defendant’s daughter, as propensity
evidence. S testified that, in 1993, when she was four years old, the
defendant had rubbed her genitals and had rubbed his genitals against
her genitals. Defense counsel objected to the admission of S’s testimony
on the grounds that the events S described were too remote in time to
be relevant and that S and T were not similar victims. The trial court
overruled defense counsel’s objection and admitted S’s testimony into
evidence, concluding, inter alia, that the misconduct S described was
sufficiently proximate in time to the misconduct involving T. In so
concluding, the court relied on a recording of an interview that had
been admitted into evidence, in which the defendant admitted to the
police that he had been incarcerated from approximately 1993 to 2003
in connection with prior sexual misconduct. The court reasoned that,
because the defendant was incarcerated for ten of the fourteen years
between the instances of misconduct involving S and T, during which
period he was prevented from engaging in sexual misconduct, the tempo-
ral window was narrowed, and S’s testimony, therefore, was not too
remote in time. On the defendant’s appeal from the judgment of convic-
tion, held:
1. The defendant’s unpreserved claim that his right to due process was
violated by virtue of the admission of S’s testimony, insofar as the state’s
notice of the sexual misconduct involving S that it planned to offer was
inadequate and failed to conform to the evidence elicited at trial, was
not of constitutional magnitude and, therefore, failed under the second
prong of the test set forth in State v. Golding (213 Conn. 233):
In State v. O’Brien-Veader (318 Conn. 514), this court concluded that
criminal defendants have no constitutional right to the prior disclosure
of evidence of uncharged misconduct evidence, and, regardless of
whether that conclusion was dictum, as the defendant claimed, this
court agreed with the conclusion in O’Brien-Veader, as well as in other
Appellate Court decisions, that notice of the state’s intent to use prior,
uncharged misconduct evidence falls within the category of discovery
and is regulated by the rules of practice.
Moreover, this court explained that broad deference is afforded to trial
courts on matters relating to the admission of uncharged misconduct
evidence because they involve evidentiary questions that do not implicate
a defendant’s due process rights, this court’s determination that the
defendant’s claim did not implicate any constitutional right was in line
with the decisions of other courts that have determined whether the
federal constitution compels any particular notice based due process
procedures in connection with the admission of other misconduct evi-
dence, and the defendant failed to provide any authority to support
his argument that the federal constitution requires pretrial notice of
uncharged misconduct that the state seeks to introduce at trial.
Accordingly, this court determined that, so long as evidence of other
sexual misconduct has been properly admitted under a rule allowing
propensity evidence, consideration of such evidence does not infringe
on a defendant’s due process rights.
2. The defendant could not prevail on his claim that the trial court had
abused its discretion in admitting into evidence the testimony concerning
the defendant’s prior sexual misconduct involving S:
With respect to the defendant’s claims that it was improper for the trial
court to find that S’s testimony corresponded to the third entry in the
state’s notice, insofar as the notice did not identify the victim as S
and insofar as S’s testimony did not align with the sexual misconduct
described in the notice, the failure of the defendant or defense counsel
to contest that S was the victim described in the third entry was fatal
to his challenge, and, moreover, both the parties and the trial court
treated the third entry in the state’s notice as describing the sexual abuse
involving S, the notice included the docket number associated with the
prior prosecution of the defendant for his sexual abuse of S, there was
no reason for the trial court to believe that the defense was caught off
guard when S took the witness stand, and there were clear parallels
between what was described in the notice and S’s testimony, including
the year and the victim’s age when the misconduct occurred.
Moreover, the defendant could not prevail on his claim that the trial
court had abused its discretion in admitting S’s testimony on the ground
that the misconduct involving S had occurred fourteen years before the
charged conduct occurred and that it therefore was too remote in time
to be relevant.
The trial court’s decision to admit S’s testimony was based in part on
its finding that the defendant had been incarcerated continuously for
ten of the fourteen years between the instances of sexual misconduct
with S and T, that finding was not clearly erroneous insofar as the
evidence supported it, under the law of this state, if a defendant has
been incarcerated for a portion of time between two separate incidents
of sexual misconduct, it is appropriate to measure temporal proximity
by considering the time that the defendant was not incarcerated, which,
in this case, was approximately four years, and the appellate courts of
this state consistently have held that such a length of time does not
render the prior misconduct too remote in time from the conduct at issue.
Furthermore, the defendant did not dispute the trial court’s finding that
the incidents of misconduct with S and T involved similar offenses, as
S and T both recounted that the defendant had rubbed their genitals
and that the misconduct occurred at his home when his long-term partner
was not present, or the trial court’s finding that S and T were similar
victims, insofar as both S and T testified that they had had a familial
type relationship with the defendant and that they were both young
when the misconduct took place.
In addition, S’s testimony was relevant and not unduly prejudicial, as
the number of parallels between her testimony and that of T rendered
S’s testimony highly probative of the defendant’s propensity to engage
in criminal sexual misconduct, S’s allegations were no more extreme
than T’s allegations, and the facts that the case was tried to the court
and that the trial judge offered the defense the opportunity to have
another judge hear and rule on the admissibility of S’s testimony elimi-
nated any concerns about undue prejudice.
(Two justices concurring separately in one opinion)
Argued September 11—officially released November 28, 2023
Procedural History
Substitute information charging the defendant with
two counts of the crime of sexual assault in the first
degree and three counts of the crime of risk of injury
to a child, brought to the Superior Court in the judicial
district of Hartford and tried to the court, Gold, J.,
which granted in part and denied in part the defendant’s
motion for a judgment of acquittal; thereafter, judgment
of guilty of one count of sexual assault in the first
degree and two counts of risk of injury to a child, from
which the defendant appealed to this court. Affirmed.
Dina S. Fisher, assigned counsel, for the appellant
(defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, and Anthony Bochicchio, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
D’AURIA, J. In this direct appeal, we are again pre-
sented with a challenge to a trial court’s admission of
sexual misconduct evidence beyond that which the
state has charged in a particular prosecution. The defen-
dant, Samuel U., appeals from his conviction 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
§ 53-21 (a) (2). Specifically, he claims that the state
infringed on his due process rights by providing a notice
of its intent to offer evidence of his other sexual miscon-
duct that was inadequate and did not conform to the
evidence elicited at trial. The defendant also contends
that the trial court abused its discretion under § 4-5 (b)
of the Connecticut Code of Evidence by admitting the
testimony of his daughter, S, concerning sexual miscon-
duct he engaged in with her fourteen years before the
charged conduct in the present case. We disagree with
both of the defendant’s claims and affirm the trial
court’s judgment.
The following facts and procedural history relate to
the defendant’s claims on appeal. After a bench trial,
the trial court found that, from 2007 through 2010, the
defendant had on numerous occasions engaged in sex-
ual misconduct with the victim, T. During this time
frame, T was between the ages of seven and ten, and
the defendant was in a long-term relationship with T’s
grandmother, M. T would see the defendant when vis-
iting M, as the defendant resided with M. The defen-
dant’s sexual misconduct with T occurred either in his
car or in M’s home when M was not present.
The defendant’s sexual misconduct included per-
forming cunnilingus on T, rubbing her vagina, kissing
her breasts, and forcing her to touch his penis. In 2016,
T confided in her school therapist about these episodes
of the defendant’s sexual misconduct. As a mandated
reporter, her therapist notified the police about T’s dis-
closures.
Pursuant to § 4-5 (b) of the Connecticut Code of Evi-
dence, and more than eight months before trial, the
state provided the defendant with a ‘‘Notice of Intent
to Present Uncharged Misconduct,’’ stating that it would
‘‘present evidence of other sexual misconduct to prove
propensity . . . .’’ The notice indicated that the state
planned to present evidence of four episodes of the
defendant’s other sexual misconduct with unspecified
victims. The notice included the approximate dates of
the misconduct, the nature of the misconduct, and the
respective dates of the defendant’s resulting convic-
tions for each episode of misconduct. Most relevant to
the present appeal is the third entry on that notice,
which provided: ‘‘The state intends to present evidence
that, on August 20, 1993, the defendant digitally pene-
trated and had vaginal and anal intercourse with the
victim. The victim was a [four] year old female. The
defendant was convicted, on June 17, 1994, of sexual
assault in the first degree and risk of injury in violation
of [§§] 53a-70 and 53-21 . . . .’’ The notice did not iden-
tify the victim of those crimes, but it did contain the
docket number of the criminal case.1 The defendant did
not contest the adequacy of this notice before trial.2
At trial, the state offered the testimony of S as propen-
sity evidence under § 4-5 (b) of the Connecticut Code of
Evidence.3 S testified that the defendant’s sexual mis-
conduct with her had taken place in 1993, when she
was four years old. The defendant’s conduct included
rubbing S’s genitals, as well as rubbing his genitals
against hers. S recounted that the defendant’s miscon-
duct ceased that same year, after she told a family
member what she had endured.
Just as he had not before trial, when the state sought
to admit S’s testimony at trial, the defendant did not
raise any claim concerning the adequacy of the notice
of other sexual misconduct. Defense counsel did argue,
however, that S’s testimony was inadmissible because
(1) fourteen years had elapsed between the other sexual
misconduct involving S and T’s allegations, rendering
S’s experiences too remote in time to be relevant, and
(2) S and T were not similar victims in that S is the
defendant’s blood relative and T is not, and T was ‘‘much
older’’ than S (seven to ten years old as opposed to
four years old) when the defendant’s sexual misconduct
with each of them occurred.
Given that the defendant had elected a bench trial,
the trial court, before hearing and ruling on the admissi-
bility of S’s testimony, offered the defendant the oppor-
tunity to have another judge listen to her testimony and
rule on its admissibility. Defense counsel responded
that there was no need for the court to make these
arrangements because the defendant did not want S to
have to testify twice, and he was ‘‘confident, if the court
does exclude [the testimony], the court won’t consider
it . . . in rendering a verdict.’’
After hearing the testimony and the parties’ argu-
ments, the trial court overruled defense counsel’s objec-
tion, finding that the sexual misconduct S had described
was sufficiently proximate in time to T’s allegations,
given that the defendant had been incarcerated for a
significant portion of the fourteen years in question.
The trial court also reasoned that the locations and
manner of the sexual misconduct S and T described
were sufficiently similar, given that both recalled the
defendant rubbing their genitals at his home. Both also
had a familial type relationship to the defendant and
were similar in age at the time of the sexual misconduct.
The trial court found the defendant guilty of one
count of sexual assault in the first degree and two
counts of risk of injury to a child and sentenced him
to a term of imprisonment of twelve years with a manda-
tory minimum of five years to serve followed by five
years of special parole. The defendant appealed directly
to this court pursuant to General Statutes § 51-199
(b) (3).
I
We begin with the defendant’s claim that the trial
court violated his due process rights by admitting S’s
testimony without adequate notice. The defendant con-
cedes that he did not raise this claim in the trial court.
He therefore seeks review under State v. Golding, 213
Conn. 233, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
Most relevant to our resolution of this claim is the
defendant’s assertion that it is of constitutional magni-
tude under Golding’s second prong because ‘‘[t]he
essence of due process is the requirement that a person
in jeopardy of a serious loss [be given] notice of the case
against him and [an] opportunity to meet it.’’4 (Internal
quotation marks omitted.) State v. Lopez, 235 Conn.
487, 493, 668 A.2d 360 (1995). The state responds that
the defendant has cited no legal authority to support
his argument that, to safeguard due process rights,
either the state must provide specific details in a pretrial
notice about other sexual misconduct evidence or the
trial court must conduct a hearing.5 To the contrary,
the state argues that State v. O’Brien-Veader, 318 Conn.
514, 545, 122 A.3d 555 (2015), controls the resolution
of this claim because this court held in that case that
criminal defendants do not have a constitutional right
to pretrial notice of any inculpatory, uncharged miscon-
duct evidence that the state plans to offer into evidence.
We agree with the state that this claim fails under the
second prong of Golding.
Under Golding, ‘‘a defendant can prevail on a claim
of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40; see
also In re Yasiel R., supra, 317 Conn. 781 (modifying
third condition of Golding). The constitutional claim
the defendant advances in the present case is one of
procedural due process. This court has stressed that,
‘‘[f]or more than a century the central meaning of proce-
dural due process has been clear: [p]arties whose rights
are to be affected are entitled to be heard; and in order
that they may enjoy that right they must first be notified.
. . . It is equally fundamental that the right to notice
and an opportunity to be heard must be granted at a
meaningful time and in a meaningful manner.’’ (Internal
quotation marks omitted.) In re DeLeon J., 290 Conn.
371, 378, 963 A.2d 53 (2009). To trigger procedural due
process protections, however, the property or liberty
interest at stake must be ‘‘cognizable under the due
process clause . . . .’’ (Internal quotation marks omit-
ted.) Frillici v. Westport, 231 Conn. 418, 437, 650 A.2d
557 (1994). ‘‘[D]ue process is a flexible principle that
calls for . . . procedural protections [that] the particu-
lar situation demands.’’ (Internal quotation marks omit-
ted.) In re DeLeon J., supra, 378. Therefore, when
analyzing whether a trial court has provided adequate
procedural due process protections, we consider the
circumstances at hand to ensure that the defendant had
a meaningful opportunity to present his case. See id.‘‘[I]t can be difficult to distinguish between a mere
evidentiary misstep and a potential due process viola-
tion.’’ State v. O’Brien-Veader, supra, 318 Conn. 534.
However, ‘‘[d]ue process is not to be regarded as a
giant constitutional vacuum cleaner which sucks up
any claims of error . . . .’’ State v. Kurvin, 186 Conn.
555, 564, 442 A.2d 1327 (1982). ‘‘[I]t would trivialize the
constitution to transmute a nonconstitutional claim into
a constitutional claim simply because of the label placed
on it by a party or because of a strained connection
between it and a fundamental constitutional right.’’
(Internal quotation marks omitted.) State v. Jenkins,
271 Conn. 165, 190, 856 A.2d 383 (2004).
The defendant argues that notice of the other sexual
misconduct the state intended to offer at trial is required
as a matter of due process. This court previously has
made clear, however, that ‘‘there is no constitutional
right to the disclosure of uncharged misconduct evi-
dence, which is inculpatory in nature.’’ State v. O’Brien-
Veader, supra, 318 Conn. 545; see also State v. Colon,
71 Conn. App. 217, 240–41, 800 A.2d 1268 (in response
to arguments that state ‘‘was required to disclose its
intent to use prior misconduct evidence’’ by certain
date, court held that there is ‘‘no constitutional right to
the disclosure of such evidence’’), cert. denied, 261 Conn.
934, 806 A.2d 1067 (2002). The defendant responds that
O’Brien-Veader does not bind us because our discus-
sion of this issue in that case constituted nonbinding
dictum. See State v. Courchesne, 296 Conn. 622, 738
n.79, 998 A.2d 1 (2010) (defining obiter dicta).
Regardless of whether our discussion of the notice
issue in O’Brien-Veader was dictum, we agree with our
conclusion in that case, and with earlier decisions of the
Appellate Court, that prior notice of the state’s intent
to use prior misconduct evidence falls more properly
within the category of discovery. Accordingly, that dis-
closure of evidence is regulated by the rules of practice.
See Practice Book § 40-7; see also State v. O’Brien-
Veader, supra, 318 Conn. 544–45; State v. Colon, supra,
71 Conn. App. 240–41; State v. Fraenza, 9 Conn. App.
228, 236–37, 518 A.2d 649 (1986), cert. denied, 202 Conn.
803, 519 A.2d 1207 (1987), and cert. denied sub nom.
State v. Diaz, 202 Conn. 803, 519 A.2d 1206 (1987). As we
have explained previously, ‘‘[w]e leave it to the sound
discretion of our trial courts to determine the precise
procedure to employ in a particular case, consistent
with their duty to safeguard against undue prejudice
in cases involving uncharged misconduct evidence.’’
(Internal quotation marks omitted.) State v. Juan J.,
344 Conn. 1, 24 n.12, 276 A.3d 935 (2022). We give broad
deference on these matters in part because they are
evidentiary questions that do not implicate due process
rights. Compare State v. Patrick M., 344 Conn. 565, 600,
280 A.3d 461 (2022) (‘‘[w]e defer to the ruling of the
trial court because of its unique position to [observe]
the context in which particular evidentiary issues arise’’
(internal quotation marks omitted)), with Anthony A.
v. Commissioner of Correction, 339 Conn. 290, 311–12,
260 A.3d 1199 (2021) (‘‘procedural due process rights
[present] a question of law over which our review is
plenary’’). Not only is our determination that the defen-
dant’s claim does not implicate any constitutional right
consistent with our own case law, but our research
reveals that it is in line with the conclusion of every
court that has analyzed whether the federal constitution
compels any particular notice based due process proce-
dures before admitting evidence of other misconduct.
See, e.g., State v. Norton, 151 Idaho 176, 182, 254 P.3d 77(App. 2011) (requirements for admissibility and notice
of other crimes evidence are ‘‘required by a rule of
evidence’’ but ‘‘are not of constitutional import’’), re-
view denied, Idaho Supreme Court, Docket No. 37241-
2009 (July 7, 2011); McDonald v. State, 179 S.W.3d 571,
578 (Tex. Crim. App. 2005) (‘‘no constitutional error is
involved when evidence of uncharged misconduct is
admitted without notice’’); see also United States v.
Wilson, Docket No. CR 09-1465 JB, 2010 WL 2954562, *8
(D.N.M. June 18, 2010) (court found no cases discussing
notice based due process rights concerning admissibil-
ity of other crimes evidence). In fact, numerous federal
courts have ruled that admitting evidence of other
crimes in child molestation cases does not violate a
defendant’s substantive due process rights. See, e.g.,
United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir.
2001), cert. denied, 534 U.S. 1166, 122 S. Ct. 1181, 152
L. Ed. 2d 124 (2002); United States v. Mound, 149 F.3d
799, 800–801 (8th Cir. 1998), cert. denied, 525 U.S. 1089,
119 S. Ct. 842, 142 L. Ed. 2d 697 (1999); United States
v. Castillo, 140 F.3d 874, 883 (10th Cir. 1998). These
courts have emphasized that rule 403 of the Federal
Rules of Evidence functions as a crucial safeguard to
ensure that ‘‘potentially devastating evidence of little
probative value will not reach the jury . . . .’’ United
States v. LeMay, supra, 1026;6 see McLean v. State, 934
So. 2d 1248, 1260–61 (Fla. 2006). None suggests that
this safeguard is constitutionally required.
This lack of authority leads the defendant to direct
us to statutes and cases from other states, along with
rule 414 of the Federal Rules of Evidence, all of which
detail various notice requirements for the admission of
uncharged misconduct evidence.7 Some of the proce-
dures other states have adopted—by rule or by case
law—may be salutary. But the defendant has failed to
provide any authority—and we are aware of none—
to support his argument that the federal constitution
requires pretrial notice of uncharged misconduct the
state seeks to admit at trial. Rather, so long as evidence
of other crimes has been properly admitted under a
rule allowing propensity evidence, the consideration of
this evidence does not infringe on a defendant’s proce-
dural or substantive due process rights. Therefore, the
defendant’s notice claim is not of constitutional magni-
tude and fails to satisfy the second prong of Golding.
II
Having established that the defendant had no consti-
tutional right to pretrial notice of other sexual misconduct
evidence, we next consider whether the trial court’s ad-
mission of S’s testimony constituted an abuse of discre-
tion. ‘‘[T]he trial court’s ruling on evidentiary matters
will be overturned only upon a showing of a clear abuse
of the court’s discretion. . . . In determining whether
there has been an abuse of discretion, every reasonable
presumption should be made in favor of the correctness
of the trial court’s ruling, and we will upset that ruling
only for a manifest abuse of discretion.’’ (Internal quota-
tion marks omitted.) State v. Calabrese, 279 Conn. 393,
407, 902 A.2d 1044 (2006). ‘‘In determining whether
there has been an abuse of discretion, the ultimate issue
is whether the [trial] court could reasonably conclude
as it did.’’ (Internal quotation marks omitted.) Greene
v. Commissioner of Correction, 330 Conn. 1, 33, 190
A.3d 851 (2018), cert. denied sub nom. Greene v. Semple,
U.S. , 139 S. Ct. 1219, 203 L. Ed. 2d 238 (2019).
The defendant challenges the trial court’s ruling in
two ways.
First, the defendant raises an argument he did not
raise at trial, namely, that it was improper for the trial
court to find that S’s testimony corresponded to the
third entry in the state’s notice of intent because the
notice did not identify the victim by name as the defen-
dant’s daughter. Related to this contention, he argues
that S’s testimony did not align with the sexual miscon-
duct enumerated in the notice. For example, the notice
described digital penetration, vaginal intercourse, and
anal intercourse whereas S recounted genital rubbing
during her testimony. We are not persuaded by either
of these arguments.
This court reviews a trial court’s determination to
admit evidence for abuse of discretion but analyzes any
factual findings that form the basis for those evidentiary
decisions under the clearly erroneous standard of
review. See, e.g., State v. Ray, 290 Conn. 602, 631 n.17,
966 A.2d 148 (2009); State v. DeJesus, 288 Conn. 418,
440–41, 953 A.2d 45 (2008). ‘‘A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Internal quotation marks
omitted.) In re Jacob W., 330 Conn. 744, 770, 200 A.3d
1091 (2019).
Given our holding in part I of this opinion that pretrial
notice of other crimes evidence does not implicate a
constitutional right, the defendant’s failure to contest
that S was the victim described in the third entry of
the state’s notice is fatal to this part of his evidentiary
challenge. See State v. Fay, 326 Conn. 742, 766, 167
A.3d 897 (2017) (if Golding does not apply, ‘‘[g]enerally,
this court is not required to consider a claim unless it
was distinctly raised at the trial or arose subsequent
to the trial’’ (internal quotation marks omitted)). We
observe that both parties and the trial court treated the
third entry in the state’s notice as describing sexual
abuse inflicted on S. Specifically, the trial court, when
ruling on the admissibility of S’s testimony, recounted
that the defendant had been incarcerated from 1993 to
2003, representing ‘‘the sentence he received for his
misconduct with S’’ and that, therefore, he was incarcer-
ated for ‘‘ten of the fourteen years between [S’s] victim-
ization and [T’s] victimization . . . .’’ This finding is
consistent with the third entry in the state’s notice,
which explained that the defendant had been convicted
of assaulting a four year old female in 1993. Shortly
after, the trial court indicated that ‘‘the defendant only
had four years between his release from prison for
his victimization of [S] and his commencement of the
alleged victimization [of] T . . . .’’
It speaks volumes that defense counsel failed, at any
time, to claim that the third entry—including the docket
number provided—did not describe S, or in any way
to contest the adequacy of the state’s notice as it con-
cerned S.8 The trial court had no reason to believe that
the defendant was caught off guard when S took the
witness stand. Further, although the sexual misconduct
included in the notice did not align precisely with what
S testified to at trial—an unremarkable occurrence in
cases involving sexual abuse during childhood—there
were clear parallels. As mentioned previously, the notice
described sexual misconduct in 1993 that involved a
four year old female, and S testified about the defen-
dant’s sexually abusing her in 1993, when she was four
years old. The trial court reasonably inferred that the
notice referred to S because the defendant gave no
indication that he was unprepared for S’s testimony.
Based on the record below, we cannot conclude that
the trial court’s finding that the third entry in the state’s
notice describing the defendant’s abuse of S was
clearly erroneous.
The defendant’s second contention, which he did pre-
serve at trial, is that the trial court abused its discretion
by admitting S’s testimony because the sexual miscon-
duct she described took place fourteen years before
the charged conduct occurred. The defendant argues
that the trial court abused its discretion by engaging in
speculation when considering whether his period of
imprisonment served to make his alleged sexual mis-
conduct with S sufficiently proximate in time to his
alleged sexual assault of T. Specifically, he argues that
the trial court’s finding that the defendant had been
incarcerated for ten years between the incidents involv-
ing S and T was clearly erroneous because it was based
on comments he made in an interview with the police
that were too ambiguous to establish that he was contin-
uously incarcerated from 1993 until 2003. We disagree.
The following facts are pertinent to this claim. With-
out objection from either party, the trial court admitted
into evidence a video-recorded interview that detectives
had conducted with the defendant in which he told
them that he had been incarcerated for ‘‘a lot of time’’
as a result of prior sexual misconduct with a child.
Specifically, he related that he was incarcerated in
about 1993 and released from prison in 2003. Although
the defendant perhaps did not make crystal clear in
this interview that his incarceration from 1993 until
2003 was continuous, the trial court found that the
defendant had stated, ‘‘either directly or in response to
questions of the detectives, that he served a period of
incarceration for that earlier incident that started in
1993 and lasted until 2003.’’ From this, the trial court
reasoned that the defendant’s incarceration during ten
of the fourteen years between his misconduct with S
and his misconduct with T, as a practical matter, nar-
rowed the window from fourteen years to about four
years after his release from prison.9 Therefore, the court
found that, because he was prevented from engaging
in sexual misconduct while imprisoned, S’s testimony
was not too remote in time to be relevant.
Once again, we find ourselves analyzing factual find-
ings that the trial court used when determining the
admissibility of evidence. Accordingly, we address
whether the trial court’s finding that the defendant had
been incarcerated for ten years was clearly erroneous.
See, e.g., State v. Ray, supra, 290 Conn. 631 n.17; State
v. DeJesus, 288 Conn. 441.
Here, there was clearly evidence to support the trial
court’s finding. Not only did the defendant say in his
interview with the police that he was incarcerated
beginning in about 1993 and released in 2003, without
any mention of intervening periods when he was not in
prison, but the defendant’s other statements throughout
the interview support the finding that his incarceration
was continuous. For example, the defendant repeatedly
used phrases such as, ‘‘during my incarceration,’’ and,
when asked by the police when he was released from
prison, he quickly responded that this occurred in 2003,
never indicating that he had been released from prison
at other times during the period in question. This
strongly suggested that his incarceration was a singular,
continuous period, and we cannot say that the trial
court’s finding to this effect was clearly erroneous.
With this factual finding in mind, we turn to whether
the trial court abused its discretion in admitting evi-
dence of the defendant’s other sexual misconduct. In
State v. DeJesus, supra, 288 Conn. 418, this court held
that, in cases involving sexual misconduct, ‘‘[e]vidence
of [other sexual] misconduct is admissible [for propen-
sity purposes] if the offense is proximate in time, similar
to the offense charged, and committed with persons
similar to the prosecuting witness.’’ (Emphasis omitted;
internal quotation marks omitted.) Id., 466. Citing ‘‘strong
public policy reasons,’’ this court in DeJesus explained
that sexual misconduct is often a behavioral pattern,
making past misconduct highly probative of other con-
duct. Id., 468, 470. These factors long have served as
the predominant framework for considering the admis-
sion of other sexual misconduct evidence to establish
a common plan or scheme; see, e.g., State v. Esposito,
192 Conn. 166, 169–70, 471 A.2d 949 (1984); and have
since been codified. Conn. Code Evid. § 4-5 (b); see
State v. George A., 308 Conn. 274, 293, 294 n.21, 63 A.3d
918 (2013).
When considering the interplay of the DeJesus fac-
tors, ‘‘[w]e have indicated that this inquiry should focus
[on] each of the three factors, as a single factor will
rarely be dispositive.’’ State v. Romero, 269 Conn. 481,
498, 849 A.2d 760 (2004). Thus, we have not adopted a
bright-line rule for the proximate in time DeJesus factor.
See State v. Acosta, 326 Conn. 405, 414, 164 A.3d 672(2017) (‘‘[b]ecause we have repeatedly emphasized the
connectedness of the three DeJesus relevancy factors,
we decline to adopt a [bright-line] rule for remoteness,
or a rule that establishes a presumption that after ten
years the uncharged conduct is too remote’’). Rather,
under this factor, ‘‘we compare the time with reference
to the period between the cessation of the prior miscon-
duct and the beginning of the charged sexual abuse.’’
(Internal quotation marks omitted.) State v. Eddie N.
C., 178 Conn. App. 147, 159, 174 A.3d 803 (2017), cert.
denied, 327 Conn. 1000, 176 A.3d 558 (2018). Further,
we have held that the trial court should account for
whether the defendant was incarcerated for any part
of the relevant period. See State v. Snelgrove, 288 Conn.
742, 761–62, 954 A.2d 165 (2008); id., 762 (‘‘where prior
misconduct evidence is otherwise admissible, an extended
temporal gap between the prior misconduct and the
charged conduct does not render the prior misconduct
evidence irrelevant if the defendant was incarcerated
during that time’’). Because defendants are most often
unable to reengage in similar sexual misconduct while
incarcerated, an extended time without having commit-
ted such misconduct while incarcerated does not neces-
sarily indicate that the defendant no longer harbors
criminal proclivities. See id. (reasoning that, because
defendant ‘‘continued to be driven by the sexual com-
pulsion that led to the prior offenses after his release
from prison,’’ sexual compulsion was ‘‘a long-standing
feature of the defendant’s psyche’’ that imprisonment
temporarily hampered). In sum, under our case law, if
a defendant has been incarcerated for a portion of the
time between two separate incidents of sexual miscon-
duct it is appropriate for a trial court to measure tempo-
ral proximity by considering the time that the defendant
was not incarcerated, which, in the present case, was
about four years. See id.We now turn to the second and third DeJesus factors,
under which the relevant parallels need not be identical
for a trial court to hold that the prior misconduct and
the misconduct at issue both involve similar conduct
and similar victims. See State v. George A., supra, 308
Conn. 298 n.24. Some factors that courts have consid-
ered when evaluating the significance of the similarities
between other sexual misconduct and the sexual mis-
conduct at issue include the frequency and severity
of the sexual abuse, and the place where the abuse
occurred, as well as the age and familial status of the
victims. See, e.g., State v. Eddie N. C., supra, 178 Conn.
App. 161–62.
The proximate in time analysis in the present case
closely resembles that of Snelgrove. In Snelgrove, this
court ruled that misconduct evidence occurring four-
teen years before the charged crime was not too remote
in time to be relevant and therefore admissible because
the defendant in that case had been incarcerated for
eleven of those fourteen years. See State v. Snelgrove,
supra, 288 Conn. 761–62. In the present case, the trial
court found that the defendant was incarcerated for
ten of the fourteen years between incidents, in essence
narrowing the time between the incidents with S and
T to approximately four years. Our appellate courts
consistently have held that such a length of time does
not render prior misconduct too remote in time from
the conduct at issue to be admissible. See, e.g., State
v. Acosta, supra, 326 Conn. 415 (twelve years between
other sexual misconduct and charged misconduct was
proximate in time); State v. Jacobson, 283 Conn. 618,
632–33, 930 A.2d 628 (2007) (six to ten years between
other sexual misconduct and charged misconduct was
proximate in time); State v. Romero, supra, 269 Conn.
498 (nine years between other sexual misconduct and
charged misconduct was proximate in time).
Additionally, temporal proximity is only one part of
the admissibility calculus. See State v. Romero, supra,269 Conn. 498. As we have discussed, the DeJesus analy-
sis hinges on the cumulative effect of all three factors,
rather than any one in isolation. See State v. Jacobson,
supra, 283 Conn. 631. The defendant does not challenge
the trial court’s evaluation of the second and third
DeJesus factors on appeal, and our own consideration
of the similarities in the testimony from S and T under
these factors further tips the scale in favor of the court’s
admission of the defendant’s other sexual misconduct.
See State v. Romero, supra, 498.10 S and T both recount-
ed that the defendant had rubbed their genitals. They
also both testified that the defendant’s misconduct had
taken place at his home when his long-term partner
was not present. Thus, as the trial court found, and the
defendant does not dispute, the incidents with S and
the incidents with T involved similar offenses, satisfying
the second DeJesus factor. Additionally, S and T both
testified to having a familial type relationship to the
defendant, and both were young girls when the alleged
misconduct took place. Therefore, the trial court appro-
priately considered S and T to be similar victims under
the third prong of DeJesus. Given these similarities and
the defendant’s own statements about his approxi-
mately ten years of incarceration, we cannot conclude
that the trial court abused its discretion in ruling that
S’s testimony was admissible under DeJesus.
Finally, although we conclude that the trial court
properly considered these factors, under DeJesus, the
court could admit evidence of the defendant’s prior
sexual misconduct with S only if it was relevant to
prove the defendant’s propensity for engaging in ‘‘aber-
rant and compulsive criminal sexual behavior’’ and if
its probative value outweighed its prejudicial effect.
State v. DeJesus, supra, 288 Conn. 473. Evidence is
unduly prejudicial when ‘‘it tends to have some adverse
effect [on] a defendant beyond tending to prove the
fact or issue that justified its admission into evidence.’’
(Internal quotation marks omitted.) State v. James G.,
268 Conn. 382, 399, 844 A.2d 810 (2004).
In the present case, this kind of evidence at issue is
inherently prejudicial, but the number of parallels in
the testimony from S and T rendered S’s testimony
highly probative of the defendant’s propensity to engage
in criminal sexual misconduct. See State v. DeJesus,
supra, 288 Conn. 469. We therefore conclude that the
trial court’s admission of S’s testimony was not unduly
prejudicial. See, e.g., State v. Antonaras, 137 Conn. App.
703, 722–23, 49 A.3d 783, cert. denied, 307 Conn. 936,
56 A.3d 716 (2012).
Finally, in cases concerning other sexual misconduct
evidence, risks of undue prejudice are minimized when
the evidence under consideration is ‘‘no more severe
or egregious than the conduct for which the defendant
was charged.’’ State v. Eddie N. C., supra, 178 Conn.
App. 166. In the present case, S’s allegations were no
more extreme than T’s allegations. Further, the fact
that the parties tried this case to the court, rather than
before a jury, ameliorated any potential undue preju-
dice, given the trial court’s understanding of the proper
rules and procedures to employ. See, e.g., State v.
George A., supra, 308 Conn. 290. Moreover, the trial
court provided the defendant with the option of having
another judge listen to S’s testimony to determine its
admissibility, which would have eliminated any con-
cerns of undue prejudice. Defense counsel explicitly
declined this protective measure. See footnote 5 of this
opinion. We therefore conclude that the trial court did
not abuse its discretion by admitting evidence of the
defendant’s other sexual misconduct with S.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and MULLINS,
ALEXANDER and CRADLE, Js., concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
1
The state’s notice, which it filed in the trial court, did not provide the
names of the victims of the defendant’s other sexual misconduct. The state
explains in its brief to this court that ‘‘unnecessarily proffering’’ greater
identifying information would ‘‘[run] the risk of running afoul of [General
Statutes] § 54-86e,’’ which protects the identities of the victims of the crime
of risk of injury to a child as well as sexual assault victims.
2
The other three incidents described in the notice concerned the defen-
dant’s (1) touching the breasts and vaginal area of a mentally impaired
nineteen year old female in 1986, (2) touching the breasts and vaginal area
of a nine year old female in 1988, and (3) performing cunnilingus on a nine
year old female in 1993.
3
Even though each episode of sexual misconduct resulted in a conviction,
the state sought to admit this evidence under § 4-5 (b) of the Connecticut
Code of Evidence rather than § 6-7 of the Connecticut Code of Evidence,
which permits, for impeachment purposes, the admission of evidence of
the conviction of crimes that are punishable by imprisonment for more than
one year.
4
Although the defendant, in his brief to this court, references due process
rights under the Connecticut constitution, he provides no independent state
constitutional analysis under State v. Geisler, 222 Conn. 672, 684–86, 610
A.2d 1125 (1992). See State v. Nash, 278 Conn. 620, 623–24 n.4, 899 A.2d
1 (2006). Therefore, we consider the defendant’s claims only under the
federal constitution.
5
The defendant also contends that the trial court failed to conduct a
pretrial hearing before admitting evidence of his other sexual misconduct.
The trial court functionally provided the defendant with the opportunity for
a pretrial hearing by offering him the choice of having another judge rule
on the admissibility of S’s testimony. This procedure would have ensured
that a neutral arbiter made this evidentiary ruling, but defense counsel
explicitly stated that this safeguard was unnecessary. Thus, even if we
deemed a pretrial hearing necessary for the sake of due process, in the
present case, this issue would not have been reviewable under Golding, as
the defendant affirmatively waived a separate hearing on the admissibility
of S’s testimony. See, e.g., State v. Hampton, 293 Conn. 435, 448–49, 988
A.2d 167 (2009) (‘‘[a] constitutional claim that has been waived does not
satisfy the third prong of the Golding test because, in such circumstances,
we simply cannot conclude that injustice [has been] done to either party
. . . or that the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial’’ (emphasis in original; internal quotation
marks omitted)).
6
This court has made clear that the Connecticut Code of Evidence func-
tions analogously: ‘‘Much like the Federal Rules of Evidence, under our
Code of Evidence, the protection against unfair prejudice emanates not
from a requirement of a preliminary finding of fact by the trial court, but
from four other sources: first, from the requirement under § 4-5 (b) that the
evidence satisf[ies] one of the prior misconduct exceptions and, thus, [is]
offered for a proper purpose; second, from the relevancy requirement under
§ 4-1; third, from the assessment that the trial court must make under § 4-
3 to determine whether the probative value of the similar acts evidence is
outweighed by its potential for unfair prejudice; and fourth, from the limiting
instructions the trial court is required to give the jury under § 1-4 that the
evidence is to be considered only for the proper purpose for which it was
admitted.’’ (Footnote omitted.) State v. Aaron L., 272 Conn. 798, 823, 865
A.2d 1135 (2005). With this in mind, we emphasize that ‘‘the existing structure
of our rules of evidence’’ helps to safeguard due process rights but does
not create those rights. Id., 824.
7
In his brief to this court, the defendant cites the following cases, statutes,
and rules of evidence: 725 Ill. Comp. Stat. Ann. 5/115-7.3 (Cum. Supp. 2020);
Ariz. R. Crim. P. 15.1 (West Cum. Supp. 2020); Ariz. R. Evid. 404 (West 2022);
Cal. Evid. Code § 1108 (Deering Supp. 2021); State v. Ferrero, 229 Ariz. 239,
274 P.3d 509 (2012); State v. Campbell, 861 N.W.2d 95 (Minn. 2015); State
v. Ness, 707 N.W.2d 676 (Minn. 2006); State v. Kennedy, 585 N.W.2d 385(Minn. 1998); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965); State
v. Williams, 548 S.W.3d 275 (Mo.), cert. denied, U.S. , 139 S. Ct. 606,
202 L. Ed. 2d 439 (2018); State v. Willis, 225 N.J. 85, 137 A.3d 452 (2016);
People v. Leonard, 29 N.Y.3d 1, 73 N.E.3d 344, 51 N.Y.S.3d 4 (2017); People
v. Cass, 18 N.Y.3d 553, 965 N.E.2d 918, 942 N.Y.S.2d 416 (2012); People v.
Molineux, 168 N.Y. 264, 61 N.E. 286 (1901); Commonwealth v. Cosby, 252
A.3d 1092 (Pa. 2021), cert. denied, U.S. , 142 S. Ct. 1230, 212 L. Ed.
2d 234 (2022); Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75(2004); State v. Gresham, 173 Wn. 2d 405, 269 P.3d 207 (2012); State v.
Thang, 145 Wn. 2d 630, 41 P.3d 1159 (2002).
8
Of course, the docket numbers the state included in its notice for each
of the defendant’s four convictions—including entry three—might solve this
riddle. For example, the defendant likely was, and is, in a position to know
whether his conviction in docket number CR93-448032-T, on June 17, 1994,
was for sexually assaulting his daughter, S. The defendant did not object
before the trial court on the ground that he was never convicted of such a
crime on such a date, or that he was never convicted of having assaulted
S. Similarly, having provided this notice, the state should have been able
to confirm on the record that S was indeed the victim of that crime, for
which the defendant was convicted. Appellate counsel for both the defendant
and the state professed no knowledge of the facts underlying this conviction,
and both further confessed not to have conducted any search to find out. Our
own search for the file associated with this docket number was unsuccessful,
considering the Judicial Branch’s records retention and destruction policy.
9
The trial court also found that the evidence of other sexual misconduct
was not unfairly prejudicial because S’s allegations were no more severe
than those of T. Additionally, the court noted that, because the case was
tried to the court, there were no concerns of arousing jurors’ emotions,
thereby minimizing risks of undue prejudice.
10
The defendant did not argue before the trial court that the misconduct
alleged by S was unlike that testified to by T, thereby waiving arguments
regarding the second prong of DeJesus. He did argue before the trial court
that, under the third DeJesus factor, the victims of each of the two incidents
were not sufficiently similar, but he does not renew that argument before
this court. Thus, the only DeJesus factor in dispute on appeal is whether
the earlier sexual misconduct with S is proximate in time to the misconduct
alleged in the present case. However, as the other DeJesus factors remain
relevant when considering the admissibility of other sexual misconduct
evidence, we will discuss them accordingly. See State v. Romero, supra, 269
Conn. 498–99.