State v. Njoku ( 2016 )

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STATE OF CONNECTICUT v. EDWIN NJOKU
(AC 36189)
Keller, Mullins and Kahn, Js.
Argued October 27, 2015—officially released February 16, 2016
(Appeal from Superior Court, judicial district of
Hartford, Vitale, J.)
Richard S. Cramer, for the appellant (defendant).
Marjorie Allen Dauster, senior assistant state’s attor-
ney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, Vicki Melchiorre, supervisory assistant
state’s attorney, and Elizabeth S. Tanaka, assistant
state’s attorney, for the appellee (state).
Opinion
KAHN, J. The defendant, Edwin Njoku, appeals from
the judgment of conviction, rendered following a jury
trial, of sexual assault in the fourth degree in violation
of General Statutes 53a-73a (a) (2) and tampering with
a witness in violation of General Statutes § 53a-151 (a).
On appeal, the defendant claims that the trial court
erred in (1) denying his motion for a judgment of acquit-
tal on the charge of tampering with a witness, (2) admit-
ting evidence of prior acts of sexual misconduct of the
defendant, and (3) refusing to admit evidence of a prior
false allegation of sexual assault by the victim and prior
sexual acts of the victim.1 We affirm the judgment of
the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
The defendant was the victim’s physician. In 2011, the
victim was seeing the defendant for a back injury that
she sustained when she slipped and fell on ice. The
victim had discussed the slip and fall with an attorney,
who asked her to obtain her medical records from the
defendant. On October 21, 2011, the victim called the
defendant’s office to make an appointment to pick up
the records and was told that the defendant would
return her call. When the defendant called the victim,
he told her to come to the office the following day at
about 2 p.m.
On Saturday, October 22, 2011, the victim took a bus
to the defendant’s office. She arrived between 2 and 2:10
p.m. Upon arrival, she did not see any staff members in
the office. When she saw the defendant, he told her to
go to one of the examination rooms. While the victim
was sitting on an examination table, the defendant came
into the room and asked the victim why she was there.
After explaining that she had come to pick up her medi-
cal records, the defendant told her that he was going
to check her back. While she was still sitting on the
table, the defendant stood and touched her from her
neck to her lower back. At one point, while touching
the victim’s back with his left hand, the defendant put
his right hand on the victim’s breast. When the victim
pushed the defendant’s hands away and asked him what
he was doing, the defendant told her that he was check-
ing to see if she had breast cancer.
The victim told the defendant that she felt uncomfort-
able and wanted to leave. The defendant apologized for
making her feel uncomfortable but told her to let him
finish examining her. He asked the victim to lie on her
back on the examining table. The defendant applied
pressure to the victim’s chest with his left hand and
then walked around her and unbuttoned her pants and
zipper and pulled her pants down to her knees. The
defendant then climbed on top of the victim. The victim
was unsuccessful in pushing the defendant’s hands
away from her chest and he was able to put his penis
into her vagina. The defendant also pulled up the vic-
tim’s shirt and sports bra and put his mouth on her
breast. He then removed his penis and ejaculated on her.
When the defendant got up to clean himself, the vic-
tim pulled her pants back up and left. Once at home,
the victim had an argument with her father and then
told her mother what the defendant had done to her.
The victim then called 911 and was transported to a
hospital by ambulance. She did not take a shower or
change her clothes. While at the hospital, the victim told
a police officer what had happened. A sexual assault
forensic examiner examined the victim and adminis-
tered the sexual assault kit, which included taking the
victim’s clothing and swabs of her vaginal area, genital
area, and breast. The defendant’s DNA was not found
on the vaginal swab, but the defendant’s known DNA
profile was consistent with the defendant being a source
of DNA from the genital swab, the breast swab, and
from the swab taken from the button, button hole and
zipper pull of the victim’s jeans as well as cuttings from
the crotch area of her jeans.
On November 4, 2011, the defendant called the vic-
tim’s cell phone and asked to speak to the victim’s
father, who had been a patient of the defendant’s for
approximately ten years.2 When the victim’s father
called the defendant back, the defendant asked him
why he had missed a scheduled appointment. During
the phone call, the defendant sounded worried or ner-
vous and stated that ‘‘all human beings make mistakes
and that talking, while talking, we could resolve prob-
lems.’’ The defendant also said that if he committed
any error, ‘‘everything has a solution and we can fix
it.’’ The defendant told the victim’s father to remember
that he had been a good doctor to his family, and not
to do anything against him because the victim’s father
would destroy the defendant’s life if he said anything.
On November 10, 2011, East Hartford police officers
executed warrants to search the defendant’s office and
to obtain a buccal swab from him. On that date, the
police transported the defendant to the police station
to take the buccal swab and then transported him back
to his office at the conclusion of that process.
On November 17, 2011, the defendant called Jesus
Ruiz, an unemployed minister who was also a patient
of the defendant’s, and asked if he could go to Ruiz’
home. Once at Ruiz’ home, the defendant appeared a
little nervous and scared. The defendant asked Ruiz to
go to the victim’s family to try to reach an agreement
with them. The defendant explained that he was being
accused of touching the victim and that the victim’s
family wanted to destroy everything he had built. He
told Ruiz that the victim went to her appointment with
the defendant wearing a miniskirt and no underwear
and that his mistake was seeing her alone. The defen-
dant then asked Ruiz if he would ‘‘go to the family’s
house and try to convince them so that they can reach
an agreement outside the court with him, that he wasn’t
rich and didn’t have a lot of money but he could reach
an agreement outside of court.’’
Following this meeting, Ruiz went to see the victim’s
family.3 After speaking with the family and hearing their
version of what had occurred, Ruiz told the family what
the defendant had told him about offering money to
resolve the matter.4 Ruiz told the family not to accept
the agreement. When Ruiz returned home, he called the
defendant to tell him that the defendant had deceived
him. The defendant said that now he was going to have
problems because the family was going to call the
police.
The defendant was charged with sexual assault in
the first degree in violation of General Statutes § 53a-
70 (a) (1), sexual assault in the fourth degree, and tam-
pering with a witness. The defendant was tried before
a jury, which found the defendant not guilty of sexual
assault in the first degree, and guilty of sexual assault
in the fourth degree and tampering with a witness. The
court, Vitale, J., imposed a total effective sentence of
ten years in prison, execution suspended after five
years, and five years probation. This appeal followed.
I
The defendant first claims that the court erred in
denying his motion for a judgment of acquittal as to
the count of tampering with a witness. Specifically, the
defendant argues that there was no evidence that he
or Ruiz had had direct contact with the victim. The
defendant further argues that he expected the victim
to file a civil lawsuit against him, and that an offer to
settle a civil lawsuit arising from the same behavior
that would constitute the criminal prosecution does not
constitute tampering with a witness. We disagree.
‘‘When reviewing a sufficiency of the evidence claim,
we do not attempt to weigh the credibility of the evi-
dence offered at trial, nor do we purport to substitute
our judgment for that of the jury. Instead, our review
consists of a two-step process in which we construe
the evidence presented at trial in a light most favorable
to sustaining the verdict . . . and then determine
whether the jury could reasonably have found, [on the
basis of] the facts established and the inferences reason-
ably drawn therefrom, that the cumulative effect of the
evidence established guilt beyond a reasonable doubt.’’
(Internal quotation marks omitted.) State v. Ortiz, 312
Conn. 551, 572, 93 A.3d 1128 (2014). ‘‘Indeed, it is axiom-
atic that [t]his court cannot substitute its own judgment
for that of the jury if there is sufficient evidence to
support the jury’s verdict.’’ (Internal quotation marks
omitted.) State v. Jordan, 314 Conn. 354, 385, 102 A.3d
1 (2014).
Section 53a-151 (a) provides: ‘‘A person is guilty of
tampering with a witness if, believing that an official
proceeding is pending or about to be instituted, he
induces or attempts to induce a witness to testify falsely,
withhold testimony, elude legal process summoning
him to testify or absent himself from any official pro-
ceeding.’’ ‘‘Thus, the witness tampering statute has two
requirements: (1) the defendant believes that an official
proceeding is pending or about to be instituted; and (2)
the defendant induces or attempts to induce a witness
to engage in the proscribed conduct.’’ State v. Ortiz,
supra, 312 Conn. 562. ‘‘[Section] 53a-151 (a) applies to
any conduct that is intended to prompt a witness to
testify falsely or refrain from testifying in an official
proceeding that the perpetrator believes [is] pending or
imminent. . . . [A]s long as the defendant believes that
an official proceeding will probably occur, it does not
matter whether an official proceeding is actually pend-
ing or is about to be instituted.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Id., 569.
In the present case, the state presented evidence that
on November 4, 2011, the defendant called the victim’s
father and stated that ‘‘all human beings make mistakes
and that talking, while talking, we could resolve prob-
lems.’’ The defendant also said that if he committed
any error, ‘‘everything has a solution and we can fix
it.’’ The defendant sounded nervous during this conver-
sation, and asked the victim’s father to remember that
he had been a good doctor to his family, and not to do
anything against him. The state also presented evidence
that on November 10, 2011, one week before the defen-
dant contacted Ruiz, East Hartford police officers exe-
cuted warrants to search the defendant’s office and to
obtain a buccal swab from him. On that date, the police
transported the defendant to the police station to take
the buccal swab and then transported him back to his
office at the conclusion of that process. Finally, the
state presented evidence that on November 17, 2011,
the defendant contacted Ruiz and asked him to try
to convince the victim’s family to reach an agreement
outside of court. On the basis of this evidence, the jury
reasonably could have concluded that the defendant
believed that an official proceeding against him was
pending or about to be instituted,5 and that, by asking
Ruiz to contact the victim’s family about reaching an
agreement out of court, he was attempting to induce
the victim to testify falsely or to withhold testimony.
The defendant contends, however, that the evidence
was insufficient for a conviction under this statute
because, construing the evidence in the light most favor-
able to sustaining the verdict, there was no evidence
that Ruiz spoke to the victim either in person or over
the telephone. The defendant essentially argues that at
most, the evidence established that Ruiz spoke to the
victim’s parents and that, because the victim was an
adult, she could have spoken for herself or made a
decision for herself.6 This court reached a contrary con-
clusion, however, in State v. Carolina, 143 Conn. App.
438, 69 A.3d 341, cert. denied, 310 Conn. 904, 75 A.3d 31
(2013). In that case, the defendant, while incarcerated
awaiting trial, mailed a letter to his cousin, attempting
to induce the cousin’s daughter to testify falsely. Id.,
441–42. In concluding that this conduct was prohibited
by § 53a-151, we stated: ‘‘Neither the statute nor the case
law interpreting the statute requires that the request
to testify falsely be made directly to the witness. The
purpose of the statute would be thwarted if a defendant
could avoid liability by inducing false testimony indi-
rectly through an intermediary instead of communicat-
ing directly with the witness himself.’’ Id., 445. There
was ample evidence in the present case from which the
jury reasonably could have concluded that the defen-
dant contacted Ruiz to attempt to induce the victim to
testify falsely or to withhold testimony.
The defendant also argues that he expected the victim
to file a civil lawsuit against him, and that an offer to
settle a civil lawsuit for the same behavior that could
constitute the criminal prosecution does not satisfy the
requirements of the witness tampering statute.7 He
points out that the victim testified that she had brought
such an action against him and was seeking damages.
A review of the record, however, reveals that although
the victim testified at trial that she had brought an
action against the defendant, she did not testify as to
when that action had been commenced, and no evi-
dence was presented that the action was pending at
the time that the defendant asked Ruiz to talk to the
victim’s family. Rather, the evidence established that
the only matter pending at that time was a criminal
investigation.
On the basis of our review of the evidence presented
at trial, as set forth previously, viewed in the light most
favorable to sustaining the verdict, we conclude that
the evidence was sufficient to support the defendant’s
conviction of tampering with a witness.
II
The defendant next claims that the court erred by
admitting into evidence the testimony of two witnesses,
S.R. and E.H., regarding prior acts of sexual misconduct
committed by the defendant. We conclude, however,
that as a result of the defendant’s failure to brief the
issue of harmfulness, this claim lacks merit.
The following additional facts are necessary for our
discussion. Prior to the start of trial, the state filed a
notice of uncharged misconduct. On June 19, 2013, dur-
ing a pretrial hearing on the notice, the state presented
the testimony of S.R. and E.H, both of whom testified
that the defendant engaged in inappropriate sexual con-
tact with them during office visits.8 The court did not
rule on the uncharged misconduct at that time.
On July 22, 2013, after the victim testified about the
incident in question, the court excused the jury. The
victim then testified, out of the presence of the jury,
regarding an incident that occurred approximately one
year prior to the incident in question. On that occasion,
the defendant asked the victim to bend over and then
‘‘had his man thing right in [her] butt.’’ Following oral
argument in which the defendant argued that the testi-
mony was inadmissible and prejudicial, the court ruled
that this testimony was admissible. The victim then
testified before the jury regarding the prior incident,
and the court immediately provided the jury with a
limiting instruction regarding its consideration of this
evidence. On July 26, 2013, the court ruled that, pursu-
ant to State v. DeJesus, 288 Conn. 418, 953 A.2d 45
(2008), the testimony of S.R. and E.H. was admissible
as evidence of prior uncharged sexual misconduct. S.R.
and E.H. thereafter testified that the defendant had
engaged in inappropriate sexual contact with them in
his office on occasions prior to the incident in question.
On appeal, the defendant argues that the court abused
its discretion in allowing S.R. and E.H. to testify regard-
ing prior uncharged sexual misconduct.
‘‘[E]vidence of uncharged misconduct is relevant to
prove that the defendant had a propensity or a tendency
to engage in the crime charged only if it is: (1) . . .
not too remote in time; (2) . . . similar to the offense
charged; and (3) . . . committed upon persons similar
to the prosecuting witness.’’ (Internal quotation marks
omitted.) Id., 473. ‘‘[Such] [e]vidence . . . is admissible
only if its probative value outweighs the prejudicial
effect that invariably flows from its admission. . . .
The admission of evidence of . . . uncharged miscon-
duct is a decision properly within the discretion of the
trial court. . . . [E]very reasonable presumption
should be given in favor of the trial court’s ruling. . . .
[T]he trial court’s decision will be reversed only where
abuse of discretion is manifest or where an injustice
appears to have been done. . . . [T]he burden to prove
the harmfulness of an improper evidentiary ruling is
borne by the defendant . . . [who] must show that it
is more probable than not that the erroneous action
of the court affected the result.’’ (Citations omitted;
internal quotation marks omitted.) State v. George A.,
308 Conn. 294–95, 63 A.3d 918 (2013).
We need not discuss the merits of this claim because
even if we were to assume, without deciding, that the
court improperly admitted the testimony of S.R. and
E.H. into evidence, the defendant has failed to demon-
strate how this ruling was harmful.9 ‘‘Absent any analy-
sis as to how the ruling harmed the defendant, we are
unable to conclude that the admission of this evidence
was an abuse of discretion.’’ State v. Gonzalez, 106
Conn. App. 238, 249, 941 A.2d 989, cert. denied, 287
Conn. 903, 947 A.2d 343 (2008); see also State v.
LaVallee, 101 Conn. App. 573, 579, 922 A.2d 316, cert.
denied, 284 Conn. 903, 931 A.2d 267 (2007). Accordingly,
we conclude that this claim lacks merit.
III
The defendant next claims that the court denied him
his right of confrontation and his right to present a
defense when it refused to allow into evidence, pursu-
ant to the rape shield statute, General Statutes § 54-
86f,10 a prior false allegation of sexual assault by the
victim and prior sexual acts of the victim. We disagree.
Before addressing the defendant’s specific claims, we
set forth the applicable standard of review and princi-
ples of law. ‘‘It is well established that a trial court
has broad discretion in ruling on evidentiary matters,
including matters related to relevancy. . . . Accord-
ingly, the trial court’s ruling is entitled to every reason-
able presumption in its favor . . . and we will disturb
the ruling only if the defendant can demonstrate a clear
abuse of the court’s discretion. . . . If we conclude,
however, that the evidentiary ruling was improper and
that the evidentiary impropriety is of constitutional
[proportion], the state bears the burden of proving that
the error was harmless beyond a reasonable doubt.’’
(Citation omitted; internal quotation marks omitted.)
State v. Shaw, 312 Conn. 85, 101–102, 90 A.3d 936 (2014).
‘‘It is well established under our law that a defendant
has the right to confront witnesses against him as guar-
anteed by the confrontation clause of both our federal
and state constitutions. . . . [T]he right of an accused
in a criminal trial to due process is, in essence, the
right to a fair opportunity to defend against the State’s
accusations. The rights to confront and cross-examine
witnesses and to call witnesses in one’s own behalf have
long been recognized as essential to due process. . . .
‘‘We are mindful, however, that the right to confront
and to cross-examine is not absolute and may, in appro-
priate cases, bow to accommodate other legitimate
interests in the criminal trial process. . . . For exam-
ple, the trial court has a right, indeed, [a] duty, to
exclude irrelevant evidence. . . . The rules excluding
evidence from criminal trials, however, may not be arbi-
trary or disproportionate to the purposes they are
designed to serve. . . .
‘‘The rape shield statute, § 54-86f, was enacted specif-
ically to bar or limit the use of prior sexual conduct of
the alleged victim of a sexual assault because it is such
highly prejudicial material. . . . Our legislature has
determined that, except in specific instances, and taking
the defendant’s constitutional rights into account, evi-
dence of prior sexual conduct is to be excluded for
policy purposes. Some of these policies include pro-
tecting the victim’s sexual privacy and shielding her
from undue harassment, encouraging reports of sexual
assault, and enabling the victim to testify in court with
less fear of embarrassment. . . . Other policies pro-
moted by the law include avoiding prejudice to the
victim, jury confusion and waste of time on collateral
matters.’’ (Citations omitted; internal quotation marks
omitted.) State v. Collin, 154 Conn. App. 102, 133–34,
105 A.3d 309 (2014), cert. denied, 315 Conn. 924, 109
A.3d 480 (2015).
‘‘The rape shield statute provides for a two step pro-
cess before evidence proffered by a defendant as falling
under one of the statute’s exceptions may be admitted.
First, if the defendant has satisfied his preliminary bur-
den in his offer of proof to show that the evidence is
potentially relevant, pursuant to the statute the trial
court must conduct a hearing to determine the admissi-
bility of the evidence. Second, [i]f, after [a] 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. . . .
‘‘In the first step of this two part process, the defen-
dant bears the burden of showing that the proffered
evidence overcomes the presumption, inherent in § 54-
86f, that evidence of the sexual conduct of a [sexual
assault] 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. . . .
‘‘If the trial court determines that the evidence is
relevant and admissible under one of the exceptions
enumerated in § 54-86f, the trial court must proceed to
the second part of the two part process outlined in the
statute. That is, the evidence is admissible only if its
probative value outweighs the prejudicial impact on the
victim.’’ (Internal quotation marks omitted.) State v.
Shaw, supra, 312 Conn. 104.
With these principles in mind, we now address the
defendant’s claims as they pertain to the rape shield
statute.
A
The defendant first claims that the court improperly
excluded evidence that the victim had made a prior false
accusation of sexual assault. The following additional
facts are necessary for the resolution of this claim. On
June 19, 2013, the defendant filed a motion in limine
requesting permission to question the victim regarding
evidence related to a prior alleged false rape claim made
by the victim on November 5, 1997, when the victim
was fourteen years old. At a hearing on July 22, 2013,
the defendant presented four statements contained in
three documents in support of the motion. The defen-
dant first relied on a police report in which a police
officer interviewed a school official. According to the
report, the victim said that she and a boy were found
kissing in a restroom; the victim never mentioned that
she was sexually assaulted. The defendant next relied
on another report from the same officer, in which the
victim ‘‘told her father she was afraid he would throw
her out of the house if he found out.’’ The defendant
argued that according to this report, the bathroom inci-
dent arose when the victim called the boy a ‘‘faggot’’ and
challenged him to ‘‘prove his manhood.’’ The defendant
next presented a note that the victim purportedly gave
to a classmate to deliver to the boy in question, stating,
‘‘I will fuck your bick . . . will my pussy.’’ Finally, the
defendant pointed to another statement in one of the
police reports in which the victim first claimed the
sexual encounter was consensual and then claimed it
was rape. On the basis of this evidence, the defendant
sought to penetrate the rape shield statute to show that
the victim had made a prior false complaint.
Following argument, the court stated that it would
hold an evidentiary hearing on the matter. At this hear-
ing, the victim testified that she remembered getting
into trouble for something that happened in the bath-
room while in middle school. She did not remember
the name of the boy involved in that incident and denied
giving a note to her friend to give to the boy. The victim
testified that after the incident she told the school
administrator that nothing had happened between her
and the boy because she was afraid. The victim denied
telling school officials that the sexual encounter with
the boy was consensual. She testified that when she
went to the hospital later that day, she told the doctor
that she had been raped. She denied claiming that it
was rape because she was afraid her father would throw
her out of the house if he knew that she had consented
to have sex in the bathroom. The victim testified that
she did not agree to have sex with the boy and that the
boy did rape her.
At the conclusion of the evidentiary hearing, the
defendant argued that the victim had been ‘‘uncandid
about a prior encounter that may or may not have been
nonconsensual with a classmate . . . at the [middle
school]. She . . . testified she was raped by this young
man and she testified that she initially said it was some-
thing other than rape,’’ either by omission or by saying
that it was consensual. In response, the state argued
that the defendant had not made a showing that the
victim’s prior claim, which was made when she was
fourteen years old, was demonstratively false. Follow-
ing the arguments, the court found that the defendant
had failed to meet his burden of showing that the vic-
tim’s 1997 claim was demonstratively false. The court
further found that the evidence would be more prejudi-
cial than probative. It, therefore, precluded any testi-
mony regarding the 1997 incident.11
The defendant argues that he was denied his right to
confront witnesses and present a defense when the
court precluded evidence regarding the 1997 incident.
On the basis of our review of the record, however, we
conclude that the court properly precluded this evi-
dence, as the defendant failed to demonstrate the falsity
of the 1997 allegation. ‘‘[T]he defendant bears the bur-
den of establishing the relevance of proffered testi-
mony. In order to get such evidence before the jury,
he must make a showing that, in fact, the prior com-
plaint was: (1) made by the victim; and (2) false.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Martinez, 295 Conn. 758, 771–72, 991 A.2d
1086 (2010); State v. Sullivan, 244 Conn. 640, 648–49,
712 A.2d 919 (1998). ‘‘Unless [the victim] had raised a
false claim before, her conduct with another man had
no bearing on her conduct with this defendant or on
the credibility of her testimony in this case.’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Slater, 23 Conn. App. 221, 225, 579 A.2d 591 (1990).
Further, the inconsistencies regarding what occurred
in 1997 do not establish that the victim’s claim of sexual
assault in 1997 was false. See State v. Martinez, supra,
774; State v. Clifford P., 124 Conn. App. 176, 186, 3 A.3d
1052 (‘‘although there are [D]epartment [of Children
and Families] reports indicating that the victim gave
inconsistent statements regarding the [prior] incident,
the defendant does not offer any link between these
inconsistencies and the mother’s statements [indicating
that she thought the victim was lying], nor would such
inconsistencies necessarily support a conclusion that
the victim was lying’’), cert. denied, 299 Conn. 911, 10
A.3d 529 (2010); State v. Morales, 45 Conn. App. 116,
125, 694 A.2d 1356 (1997) (‘‘[a] poor or flawed memory
by [the victim] in making an accusation is not sufficient
to supply evidence of falsity’’), appeals dismissed, 246
Conn. 249, 714 A.2d 677 (1998); State v. Barrett, 43
Conn. App. 667, 675, 685 A.2d 677 (1996) (‘‘[w]hile these
inconsistencies may point to the victim’s flawed mem-
ory of the prior assaults, they do not supply evidence
of falsity’’), cert. denied, 240 Conn. 923, 692 A.2d 819
(1997). Because the defendant failed to establish that
the prior accusation was false, he did not establish the
relevancy of this testimony. Accordingly, the court did
not abuse its discretion in prohibiting an inquiry into
the victim’s prior accusation of sexual assault.
B
The defendant next claims that the court erred in
excluding evidence of prior sexual acts of the victim,
specifically, other male DNA found on the vaginal swab
taken from the victim. The following additional facts
are necessary for the resolution of this claim. Following
the argument regarding the victim’s prior accusation of
sexual assault, the court considered the state’s objec-
tion, pursuant to the rape shield statute, to evidence
of, and any reference to, third parties’ DNA or semen
being present in the vaginal swab taken from the vic-
tim.12 During the argument on this objection, the defen-
dant argued that he was not offering this evidence to
establish that other men were the source of the semen;
he was offering the evidence, rather, to impeach a state-
ment that the victim made to the nurse who adminis-
tered the sexual assault kit in which the victim indicated
that she had not had sexual intercourse in the last
seventy-two hours. According to the defendant, evi-
dence of other male DNA on the vaginal swab demon-
strated lack of candor at a critical time in this case.
The defendant argued that it was relevant because ‘‘if
she lied about one thing, the jury can conclude she lied
about others.’’
In response, the state argued that this went to the
‘‘very heart of the rape shield’’ and pointed out that
there was no question that the persons who contributed
the DNA sought to be admitted were not present during
the incident in question. The state argued, therefore,
that there was no question as to misidentification in
this case. The state also argued that there was no evi-
dence that the victim actually lied to the nurse when
the nurse checked ‘‘no’’ on the form in response to this
question. It pointed out that the victim had explained
previously that she believed there were twelve hours
in a day so the victim’s understanding of seventy-two
hours may not have been clear. The state further argued
that, even if the victim had misrepresented her prior
conduct to the nurse, this did not allow the defendant
to circumvent the rape shield law. Finally, the state
argued that the relevance of the single misstatement
about sexual misconduct within seventy-two hours was
so minimal that it could not possibly outweigh the preju-
dice that this would cause. At the conclusion of the
argument, the court disallowed any questioning on
this issue.13
‘‘Generally, in a sexual assault case, evidence of prior
sexual conduct may not be introduced to impeach the
credibility of a complaining witness. . . . General Stat-
utes § 54-86f (2)14 [however] permits introduction of
such evidence on the issue of the victim’s credibility
provided the victim has testified on direct examination
concerning her prior sexual conduct.’’ (Citations omit-
ted; footnote added.) State v. Butler, 11 Conn. App. 673,
683, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d
938 (1987). During oral argument on the admissibility
of this evidence, the state pointed out that the victim
in this case was not under oath when she was
responding to the nurse’s questions but rather, was
answering questions while under duress and might have
misunderstood the question. At trial, the victim testified
on direct examination regarding the prior incident with
the defendant, but she did not otherwise testify regard-
ing her sexual conduct. In precluding the evidence and
finding that the probative value did not outweigh its
prejudicial impact, the court noted ‘‘the circumstances
under which this claim is presented, which is essentially
a box checked on a form and nothing more.’’
In the present case, because the evidence was offered
only to challenge the victim’s credibility and the victim
did not testify on direct examination as to her sexual
conduct, the evidence did not fall within the exception
contained in § 54-86f (2). See State v. Lake, 43 Conn.
App. 715, 722–23, 686 A.2d 510 (1996) (declining to
afford review of unpreserved claim that proffered evi-
dence was admissible under subdivision [2] of rape
shield statute when victim did not testify on direct
examination about her prior sexual conduct); cf. State
v. Butler, supra, 11 Conn. App. 683 (victim testified on
direct examination, but evidence of her alleged prior
sexual history not permitted at trial on ground that it
did not implicate her veracity). We further emphasize
that the policies underlying the rape shield statute
include ‘‘protecting the victim’s sexual privacy and
shielding her from undue harassment, encouraging
reports of sexual assault, and enabling the victim to
testify in court with less fear of embarrassment.’’ (Inter-
nal quotation marks omitted.) State v. Collin, supra,
154 Conn. App. 134. On the basis of the foregoing, we
conclude that the court did not abuse its discretion in
precluding the evidence of other male DNA on the vagi-
nal swab taken from the victim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
Prior to this telephone call, the East Hartford Police Department had
advised the victim’s father with regard to communicating with the defendant,
and as a result of this advice, he responded to the defendant by ‘‘playing
dumb . . . .’’
3
Ruiz testified that he went to see the family as a minister and because
he had been friends with them for many years.
4
No specific amount of money was mentioned at this meeting.
5
An ‘‘official proceeding’’ is defined as ‘‘any proceeding held or which
may be held before any legislative, judicial, administrative or other agency
or official authorized to take evidence under oath, including any referee,
hearing examiner, commissioner or notary or other person taking evidence
in connection with any proceeding.’’ General Statutes § 53a-146 (1).
6
We note that at the time of trial, the victim was thirty years old but
could not read or write and had taken special education classes in school
due to a learning disability. The victim’s father had custody of the victim’s
children. The jury could have considered this evidence in determining
whether, by asking Ruiz to contact the victim’s family, the defendant had
induced or attempted to induce the victim to testify falsely or to with-
hold testimony.
7
In support of this argument, the defendant cites State v. LaPointe, 418
N.W.2d 49 (Iowa 1988). In that case, the Supreme Court of Iowa, considering
the Iowa statute pertaining to tampering with a witness, stated: ‘‘[The statute]
requires proof of an intent to improperly influence a witness’ testimony.
Proof that money was offered with the intent to deter a victim from signing
a complaint or causing a criminal complaint to be filed does not satisfy [the
statute]. While offering money to deter a victim from pursuing criminal
charges may, in some instances be improper, it simply is not prohibited by
the express terms of [the statute]. Consequently, the trial court erred in
considering an intent to deter the victim from pressing charges as an alterna-
tive to an intent to influence a witness’ testimony.’’ Id., 52.
Unlike the statute at issue in LaPointe, § 53a-151 expressly provides that
a person is guilty of tampering with a witness if, believing that an official
proceeding is pending or about to be instituted, he ‘‘induces or attempts to
induce a witness to . . . withhold testimony . . . .’’ We, therefore, agree
with the state that LaPointe is distinguishable from the present case on the
basis of the different requirements contained in the Iowa and Connecti-
cut statutes.
8
The state also presented the testimony of S.B. and R.M. These witnesses
did not testify at trial.
9
The defendant conceded at oral argument before this court that he had
not briefed the issue of harmfulness.
10
General Statutes § 54-86f provides in relevant part: ‘‘In any prosecution
for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a,
inclusive, no evidence of the sexual conduct of the victim may be admissible
unless such evidence is (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. . . .’’
11
The court stated: ‘‘The court has heard evidence today from the alleged
victim. . . . No other evidence was presented. At most, the evidentiary
hearing established that the alleged victim at age fourteen, which the court
again finds to be relevant, was in a bathroom with a male and that perhaps
there may be more than one version of what transpired in the bathroom.
As [counsel for] the defendant . . . acknowledged, that may or may not
have been consensual. No other evidence was presented. Keeping in mind
the purposes of § 54-86f, the defendant has failed to meet his burden of
conclusively showing that her claims in 1997 were demonstratively false.
The court also finds that based on what’s been presented, the evidence
would be more prejudicial than probative, and therefore the court is going
to preclude any testimony as to the 1997 incident.’’
12
This objection was contained in the state’s memorandum of law in
opposition to the defendant’s request for a preliminary hearing concerning
the rape shield statute.
13
The court stated: ‘‘The court is aware, based on the arguments of counsel
and what was being asked during jury selection, this is not an identification
case, so in terms of the presence of other people’s semen or DNA, it’s really
not relevant in connection with identification because that’s . . . not the
defense or the claim that’s being made obviously, so the court does believe
that this touches on the rape shield statute and that it’s inextricably linked
with that based on [the] nature of the claims that are being raised.
‘‘The court has to balance probative value versus the prejudicial effect
under the statute. The court finds that given the limited nature of the defen-
dant’s claim with respect to relevancy, the court finds that the probative
value does not outweigh the prejudicial effect under the rape shield statute,
particularly given the circumstances under which this claim is presented,
which is essentially a box checked on a form and nothing more. Even aside
from that, the court believes that, again, balancing, it does not meet the
requirements for admissibility for the purposes of being argued.
‘‘So, the court is going to disallow any questioning on that pursuant to
the rape shield statute.’’
14
General Statutes § 54-86f provides in relevant part: ‘‘In any prosecution
for sexual assault . . . no evidence of the sexual conduct of the victim may
be admissible unless such evidence is . . . (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 . . . .’’ (Emphasis
added.)