State v. Schuler ( 2015 )

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STATE OF CONNECTICUT v. SHELDON A. SCHULER
(AC 36244)
Gruendel, Alvord and Sheldon, Js.
Argued December 11, 2014—officially released June 16, 2015
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Katherine C. Essington, for the appellant
(defendant).
Dan A. Brody, certified legal intern, with whom were
Harry Weller, senior assistant state’s attorney, and, on
the brief, Michael Dearington, state’s attorney, and
Gary W. Nicholson, senior assistant state’s attorney,
for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Sheldon A. Schuler,
appeals from the judgment of conviction, rendered after
a jury trial, of sexual assault in the second degree in
violation of General Statutes § 53a-71 (a) (3).1 On
appeal, the defendant claims that the court improperly
(1) admitted evidence of the defendant’s prior sexual
misconduct toward the victim and (2) instructed the
jury concerning such prior misconduct evidence. We
affirm the judgment of the trial court.
The jury could reasonably have found the following
facts from the evidence presented at trial. On January
27, 2012, the victim was celebrating her thirtieth birth-
day at her home with several friends and family mem-
bers.2 Among those in attendance were the victim’s
three older sisters, CM, LM and SM, and the defendant.
The defendant cohabitated with SM at the time and is
the father of three of her children.
During the party, the victim drank three shots of
alcohol and one wine glass sized cup of vodka punch
and smoked marijuana. At around 12 a.m., the victim
started to take a sip of vodka punch when she felt a
spinning sensation in her head. One of her sisters, CM,
observed the victim stumble and noted that she
appeared to be intoxicated. Shortly afterwards, the vic-
tim decided to go upstairs and lie down. After going
upstairs, she felt cool air coming from a fan in her son’s
bedroom and decided to enter that room instead of her
own bedroom.3 She lay down on the floor, hoping that
the cool air would alleviate the spinning sensation in
her head. When SM entered the room and asked the
victim if everything was okay, the victim responded
that something was wrong. The victim then removed
her jewelry and shirt and fell asleep. SM noticed that
the victim appeared to be intoxicated.
At around 1:30 a.m., the party ended and SM and KS,
a friend of the victim, went upstairs to say goodbye.
SM placed the victim’s cell phone near her head and
told her that they had cleaned up and were going to
leave. At that point, only CM, SM, KS, and the defendant
remained in the house. After locking the doors, CM
drove SM and the defendant to their home. KS left the
victim’s house separately.
At approximately 1:40 a.m., SJ, the victim’s boyfriend,
arrived at the victim’s house. He had been invited to
the party but had been unable to attend. On his way
over to the victim’s house, he placed several calls to
the victim’s cell phone but received no response. Upon
arriving at the house, he noticed that the lights were
on, and he proceeded to knock on the door, ring the
doorbell, and shout into the mailbox slot. After receiv-
ing no response, SJ left the victim’s house and went
out with a friend. SJ testified that the victim was a very
heavy sleeper, especially after consuming alcohol.
Meanwhile, SM and the defendant arrived back at
their home. Just before 2:46 a.m., the defendant told
SM that he needed to go to the bank and to buy ciga-
rettes. The defendant walked several blocks from his
house and then called a taxi using SM’s cell phone. The
taxi picked up the defendant at 2:53 a.m. and dropped
him off at the victim’s house. The defendant then
entered the victim’s house using keys given to him by
SM earlier in the night.
At approximately 3 a.m., the victim believed that she
was dreaming that someone was on top of her, licking
her breasts and vagina, and penetrating her vagina.
When the victim awoke, she found the defendant on
top of her, subjecting her to sexual intercourse. She
quickly pushed the defendant off of her, screamed, and
ran into her bedroom. Although it was dark in her son’s
room, she was able to identify the defendant because
the lights in her bedroom were on, casting light into
her son’s room. The victim heard the defendant walk
downstairs and then saw him, through an upstairs win-
dow, exit the house through the back door. The victim
quickly located her car keys and cell phone, and drove
to SM’s home.
As she was driving to SM’s home, the victim contacted
SJ on his cell phone. The victim was crying and more
upset than SJ had ever witnessed her at any other time
during their four year relationship. The victim would
not explain to SJ what was wrong, but told him that
she was driving to SM’s home. When she arrived, the
victim told SM what had happened. SM responded by
stating her belief that the defendant was at home, but
after searching the home, she determined that he was
not there.
About ten to fifteen minutes later, SJ arrived at SM’s
home. As he was standing outside, the defendant
arrived. The defendant approached SJ and said, ‘‘Do
you wanna fight?’’ SJ was confused by the question, as
he had not yet been apprised of the evening’s events.
As a result, no confrontation occurred between him
and the defendant, and the defendant entered the home.
When the defendant entered, SM began to yell at him
and hit him repeatedly. Initially, the victim ran away,
but later she joined her sister in hitting the defendant.
Eventually, SJ pulled the victim away from the defen-
dant, and together they left the premises in SJ’s car.
SJ then drove the victim to Yale-New Haven Hospital,
where she was examined by a nurse with specialized
training in treating victims of sexual assault. After
examining the victim, the nurse gathered evidence from
her using a sexual assault evidence collection kit, and
notified the police of the incident. During the examina-
tion, saliva was found on both of the victim’s breasts
and sperm was found in the victim’s vagina. Subsequent
testing of DNA extracted from the seized saliva and
sperm samples revealed that it matched the defen-
dant’s DNA.
The defendant was subsequently charged with one
count of sexual assault in the second degree in violation
of § 53a-71 (a) (3). On July 10, 2013, at the conclusion
of trial, a jury found the defendant guilty as charged.
The court then sentenced the defendant to ten years
imprisonment, execution suspended after seven years,
with fifteen years of probation. This appeal followed.
I
The defendant claims on appeal that the court
improperly admitted evidence of the defendant’s prior
sexual misconduct toward the victim. The defendant
first claims that the evidence was inadmissible under
the standard set forth in State v. DeJesus, 288 Conn.
418, 953 A.2d 45 (2008),4 and codified under § 4-5 (b)
of the Connecticut Code of Evidence.5 The defendant
also claims, in the alternative, that the evidence was
inadmissible under § 4-3 of the Connecticut Code of
Evidence because its prejudicial effect outweighed its
probative value.
The following procedural history is relevant to the
defendant’s claims. On July 8, 2013, the first day of
evidence at trial, the defendant filed a motion in limine,
seeking a ruling that would preclude evidence related
to a prior instance of sexual misconduct by the defen-
dant. In the motion, the defendant argued that the prior
misconduct was irrelevant to the issues in the case and
was not admissible under § 4-5 of the Connecticut Code
of Evidence. The state presented an offer of proof
regarding the prior misconduct evidence, consisting
entirely of testimony from the victim. The victim testi-
fied that during the summer of 2011, approximately six
months prior to the charged sexual assault, she had
had another nonconsensual sexual encounter with the
defendant. The victim stated that on that occasion, she
had attended a bar with SM, the defendant, and several
friends. While at the bar, she had consumed alcohol.
Later that night, the defendant drove SM and the victim
back to the defendant’s home. Because the victim felt
intoxicated, she decided to sleep in SM’s daughter’s
bedroom, which was unoccupied that evening. She then
went upstairs, took off her pants, locked the bedroom
door, and went to sleep. At some point in the evening,
she awoke to find the defendant at the bottom of the bed
with his head between her legs. The victim remembered
that the defendant was spreading her legs apart,
attempting to perform oral sex upon her, and repeatedly
saying, ‘‘stop playing.’’ Upon awakening, she jumped
out of the bed and ran into a nearby bathroom.
Defense counsel was then given an opportunity to
cross-examine the victim and asked whether she and
the defendant had been involved in a consensual sexual
relationship prior to the 2011 incident. The victim
responded that they had not.
The court then allowed both parties to present argu-
ment on the admissibility of the prior misconduct. The
state argued that the evidence was admissible under
DeJesus because of the similarities between the
charged and uncharged misconduct. Additionally, the
state argued, pursuant to State v. James G., 268 Conn.
382, 844 A.2d 810 (2004), that the proffered prior sexual
misconduct evidence was admissible to show that the
defendant had a particular sexual interest in the victim.
The defendant argued that, because he was not con-
testing that sexual contact had occurred between him-
self and the victim, but only that such conduct was
nonconsensual, evidence of other sexual encounters
between them would be irrelevant and highly prejudi-
cial. During argument, defense counsel conceded that,
‘‘under the DeJesus guideline and all of the sex cases
similar to it, it’s propensity evidence, I agree with that,
but it’s not needed in this case.’’ Shortly thereafter, the
court ruled that the evidence was admissible. The victim
later testified at trial regarding the 2011 incident involv-
ing the defendant. We now consider each of the defen-
dant’s evidentiary claims.
A
The defendant first claims that the court improperly
admitted evidence of his prior sexual misconduct
toward the victim for the purpose of showing propensity
under § 4-5 (b) of the Connecticut Code of Evidence
and DeJesus. Specifically, the defendant claims that
the court improperly admitted the challenged evidence
because his sexual misconduct in the prior incident
was not of an aberrant and compulsive nature. The
state argues on appeal that the defendant is precluded
from challenging the admissibility of the prior sexual
misconduct under § 4-5 (b) because he waived that
claim when he conceded that the evidence was admissi-
ble under DeJesus. We agree with the state.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must
properly articulate the basis of the objection so as to
apprise the trial court of the precise nature of the objec-
tion and its real purpose, in order to form an adequate
basis for a reviewable ruling. . . . Once counsel states
the authority and ground of [the] objection, any appeal
will be limited to the ground asserted. . . .
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush. . . .
Thus, because the sine qua non of preservation is fair
notice to the trial court . . . the determination of
whether a claim has been properly preserved will
depend on a careful review of the record to ascertain
whether the claim on appeal was articulated below with
sufficient clarity to place the trial court on reasonable
notice of that very same claim.’’ (Citations omitted;
internal quotation marks omitted.) State v. Jorge P., 308
Conn. 740, 753–54, 66 A.3d 869 (2013).
Our review of the record reveals that the defendant
failed to preserve this issue during his trial. The defen-
dant expressly conceded at trial that evidence of his
2011 prior sexual misconduct toward the victim was
propensity evidence under DeJesus. Thus, although the
defendant objected to the evidence on the grounds of
relevancy and undue prejudice, he did not properly
object to it under DeJesus. See Practice Book § 60-5.
The defendant requests, in the alternative, that we
review this claim under the plain error doctrine. In
attempting to establish plain error, the defendant argues
that ‘‘the use of prior sexual misconduct in order to
show propensity ought to be limited to child sexual
assault cases.’’ Our Supreme Court, however, has clari-
fied that the liberal admissibility standard adopted in
DeJesus applies to ‘‘all sexual misconduct, regardless
of the age of the victim.’’ (Emphasis in original.) State
v. DeJesus, supra, 288 Conn. 472 n.34. Additionally, the
defendant argues that § 4-5 (b) of the Connecticut Code
of Evidence should be ‘‘limited to cases where the
defendant’s alleged behavior is highly unusual, likely
to be outside the experience or understanding of the
average juror, and . . . involves multiple prior inci-
dents . . . .’’ This request would require us to impose
additional restrictions beyond those already set forth in
DeJesus and § 4-5 (b).6 The defendant claims no specific
error in the court’s application of the code of evidence
or our case law, and, therefore, his claim fails to estab-
lish the existence of a plain error. See State v. Myers,
290 Conn. 278, 289, 963 A.2d 11 (2009) (appellant cannot
prevail under plain error doctrine ‘‘unless he demon-
strates that the claimed error is so clear and so harmful
that failure to reverse the judgment would result in
manifest injustice’’).
B
We now consider the defendant’s alternative claim
that the court improperly admitted the prior sexual
misconduct evidence because its prejudicial effect out-
weighed its probative value. Specifically, he argues that
the evidence had limited probative value because it was
not relevant to the issue of whether the victim was
physically helpless,7 it concerned sexual misconduct
toward the same complaining witness, and it was based
on only one prior incident of such misconduct. He fur-
ther argues that the probative value of the evidence
was substantially outweighed by its prejudicial effect
because of its potential to confuse and to arouse the
emotions of the jurors. The state argues that the evi-
dence is probative of the victim’s lack of consent to
the defendant’s sexual advances and the defendant’s
propensity to subject the victim to such unwanted sex-
ual contact while she was incapacitated. We agree with
the state.
We begin by setting forth the appropriate legal princi-
ples. Evidence that is otherwise relevant ‘‘may be
excluded by the trial court if the court determines that
the prejudicial effect of the evidence outweighs its pro-
bative value. . . . Of course, [a]ll adverse evidence is
damaging to one’s case, but it is inadmissible only if it
creates undue prejudice so that it threatens an injustice
were it to be admitted. . . . The test for determining
whether evidence is unduly prejudicial is not whether
it is damaging to the defendant but whether it will
improperly arouse the emotions of the jur[ors]. . . .
The trial court . . . must determine whether the
adverse impact of the challenged evidence outweighs
its probative value. . . . Finally, [t]he trial court’s dis-
cretionary determination that the probative value of
evidence is not outweighed by its prejudicial effect will
not be disturbed on appeal unless a clear abuse of
discretion is shown. . . . [B]ecause of the difficulties
inherent in this balancing process . . . every reason-
able presumption should be given in favor of the trial
court’s ruling. . . . Reversal is required only [when]
an abuse of discretion is manifest or [when] injustice
appears to have been done.’’ (Internal quotation marks
omitted.) State v. Allen, 140 Conn. App. 423, 439–40, 59
A.3d 351, cert. denied, 308 Conn. 934, 66 A.3d 497 (2013).
In the present case, as the defendant concedes in
his appellate brief, the charged and uncharged sexual
misconduct were strikingly similar. Both incidents
involved the same victim and similar circumstances in
which the victim was sleeping after having consumed
alcohol. Furthermore, the two incidents occurred
within six months of each other. The similarities
between the two incidents make the evidence of prior
misconduct highly probative. See State v. John G., 100
Conn. App. 354, 364–65, 918 A.2d 986, cert. denied, 283
Conn. 902, 926 A.2d 670 (2007). As explained in DeJesus,
‘‘prior acts of similar misconduct . . . are deemed to
be highly probative because they tend to establish a
necessary motive or explanation for an otherwise inex-
plicably horrible crime . . . and assist the jury in
assessing the probability that a defendant has been
falsely accused of such shocking behavior.’’ (Citations
omitted.) State v. DeJesus, supra, 288 Conn. 469–70.
Moreover, the defendant’s argument that the evi-
dence was not probative because it did not prove the
victim’s physical helplessness misconstrues the full
extent of the state’s burden of proof. The prosecution
was required to prove not only that the victim was
physically helpless at the time of the alleged sexual
assault, but also that the defendant subjected her to
sexual intercourse without her consent while she was
in such a physically helpless state. See General Statutes
§ 53a-71 (a) (3). Evidence that the defendant had pre-
viously engaged in similar misconduct with the victim
while she was in a similar condition was, therefore,
highly probative of his propensity to engage in conduct
like that of which he was accused of in this case. Finally,
the defendant’s argument that the evidence had little
probative value because it involved only one incident
involving the same victim is also unpersuasive. The
evidence was probative of the defendant’s sexual inter-
est in this particular victim, as well as his propensity
to engage in conduct similar to that alleged in this case.
See State v. James G., supra, 268 Conn. 390–92; State
v. Irizarry, 95 Conn. App. 224, 235, 896 A.2d 828 (prior
misconduct involving same victim is ‘‘especially illumi-
native of the defendant’s motivation and attitude toward
the victim, and, thus, of his intent as to the incident
in question’’), cert. denied, 279 Conn. 902, 901 A.2d
1224 (2006).
Finally, we address the defendant’s concerns about
prejudice. ‘‘[E]vidence is excluded as unduly prejudicial
when it tends to have some adverse effect upon a defen-
dant beyond tending to prove the fact or issue that
justified its admission into evidence.’’ (Emphasis in
original; internal quotation marks omitted.) State v.
Antonaras, 137 Conn. App. 703, 722–23, 49 A.3d 783,
cert. denied, 307 Conn. 936, 56 A.3d 716 (2012). The
defendant argues that there was a danger that the jury
would combine the charged and uncharged conduct in
determining his guilt. The defendant also argues that
the evidence would arouse the emotions of the jurors.
There was, however, no risk of confusing the two inci-
dents or conflating the facts of one with the other. Both
incidents were of the same character, so there was no
risk that, by learning of the prior incident, the jurors
would learn something new that might arouse their
emotions and cause them to find the defendant guilty
of the charged offense because of his bad character.
Moreover, concerns regarding the prejudicial impact
of evidence can also be mitigated by proper jury instruc-
tions. See State v. Orellana, 89 Conn. App. 71, 89, 872
A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202(2005). Immediately after the prior misconduct evi-
dence was presented, the court instructed the jury that
‘‘evidence of a prior offense on its own is not sufficient
to prove the defendant guilty of the crime charged
. . . . I remind you that the defendant is not on trial
for any act, conduct, or offense not charged in the
information.’’ During its final charge, the court provided
similar instruction, stating, ‘‘I remind you that the defen-
dant is not on trial for any act, conduct, or offense not
charged in the information, including any alleged prior
sexual misconduct.’’ (Emphasis added.) ‘‘Absent evi-
dence to the contrary, we presume the jury followed
the court’s limiting instruction.’’ State v. Messam, 108
Conn. App. 744, 758, 949 A.2d 1246 (2008). Accordingly,
we conclude that the court properly determined that
the demonstrable probative value of the evidence out-
weighed the insubstantial prejudice, and, thus, the jury
could be counted on to use the evidence for its properly
limited purposes.
II
The defendant’s final claim is that the court improp-
erly instructed the jury concerning the uncharged prior
sexual misconduct evidence. Specifically, he claims that
the court erred when it provided limiting instructions
both during the victim’s testimony at trial and during
its final charge to the jury.
The following procedural history is relevant to the
resolution of the defendant’s claim. On July 8, 2013,
after ruling on the admissibility of evidence related
to the defendant’s prior sexual misconduct, the court
stated that it would give limiting instructions to the jury
after the testimony was presented and again in its final
charge. The court then asked the defendant whether
he would prefer that the instruction come after the
state’s direct examination or after his cross-examina-
tion. The defendant requested that the instruction be
provided after the state’s direct examination.
The trial proceeded, and the state called the victim
as its first witness. Upon the conclusion of the state’s
direct examination of the victim regarding the defen-
dant’s prior sexual misconduct, the court gave the jury
the following limiting instruction: ‘‘Ladies and gentle-
men, from time to time during the trial, I am going to
instruct you on the law, and I’m going to instruct you on
a limited aspect of the law which is other misconduct,
criminal sexual behavior, which you just heard evidence
about. This will be repeated to you in my final charge.
And the law is as follows: In a criminal case in which
the defendant is charged with a crime exhibiting aber-
rant and compulsive criminal sexual behavior, evidence
of the defendant’s commission of another offense is
admissible and may be considered for its bearing on
any matter to which it is relevant; however, evidence
of a prior offense on its own is not sufficient to prove
the defendant guilty of the crime charged in the informa-
tion. Bear in mind as you consider this evidence that
at all times the state has the burden of proving that
the defendant committed each of the elements of the
offense charged in the information. I remind you that
the defendant is not on trial for any act, conduct, or
offense not charged in the information. That com-
pletes it.’’
In its final charge to the jury, the court provided,
inter alia, the following instruction: ‘‘Next, I want to
talk to you about other misconduct, uncharged sexual
misconduct. Now, in a criminal case, ladies and gentle-
men, in which the defendant is charged with a crime
exhibiting—excuse me, exhibiting criminal sexual mis-
conduct, evidence of the defendant’s commission of
another uncharged offense involving similar criminal
sexual misconduct may be considered—may be consid-
ered for its bearing on any matter to which it is relevant,
so long as you believe it, that the other sexual conduct
did, in fact, occur and was, in fact, criminal misconduct.
Consensual sexual contact is not criminal sexual mis-
conduct.
‘‘In this case, the state offered evidence of prior sex-
ual contact between [the victim] and the defendant in
August, 2011. It is your job to determine, first, whether
that prior sexual contact did, in fact, occur, and, second,
if you believe it did occur, whether it was criminal
misconduct. If you believe the prior sexual contact
occurred and that it was criminal misconduct, then you
must also find that it rationally and logically supports
a theory that the defendant had a propensity to commit
similar criminal sexual misconduct. If, on the other
hand, you find the prior sexual contact either did not
occur or was not criminal misconduct, then you must
also find that it does not tend to rationally or logically
support a theory that the defendant had a propensity
to commit similar criminal sexual misconduct, and you
must not consider the prior sexual misconduct evidence
for any purpose as part of your deliberations but must
ignore it altogether.
‘‘You must keep in mind that evidence of . . . crimi-
nal sexual misconduct on its own is not sufficient to
prove the defendant is guilty of the crime charged in the
information. Even if you determine the prior criminal
sexual misconduct occurred, you must bear in mind
that at all times the state still has the burden of proving
that the defendant committed each and every one of
the elements of the offense charged in the information.
I remind you that the defendant is not on trial for any
act, conduct, or offense not charged in the information,
including any alleged prior sexual misconduct.’’ We now
consider each of these limiting instructions in turn.
A
The defendant claims that the court erred when it
provided a limiting instruction to the jury immediately
after the prior sexual misconduct testimony was pre-
sented. The defendant first argues that the court erred
when it instructed the jury that the prior sexual miscon-
duct evidence could be used for ‘‘any relevant purpose.’’
The state argues that the defendant waived this claim
when he failed to object to the limiting instruction and
later adopted the same language in his own request to
charge. Although the defendant concedes that this claim
was not preserved, he urges us to review it nonetheless
under the plain error doctrine or, alternatively, under
State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).8
Our Supreme Court has concluded that when a party
fails to object to a proposed instruction and then later
expresses satisfaction with it and argues it was proper,
the party has waived his right to challenge it on appeal.
See State v. Fabricatore, 281 Conn. 469, 481, 915 A.2d
872 (2007). Accordingly, we agree with the state, and,
as a result, the defendant’s claim fails under both the
plain error doctrine and Golding.
B
We now turn to the defendant’s claim that, during its
final charge to the jury, the court erred in its prior
sexual misconduct instruction. Specifically, the defen-
dant argues that its instruction improperly contained a
mandatory presumption. In considering this claim, we
note that the defendant now challenges the very same
instruction that he requested the court to use.9 The
state, thus, argues that any error was induced by the
defendant and, therefore, is unreviewable on appeal.
See State v. Walton, 227 Conn. 32, 67, 630 A.2d 990(1993) (declining to review claim of instructional error
where appellant had requested challenged charge). The
defendant concedes that the claimed error was
induced,10 yet he urges us to review his claim under
the plain error doctrine or, in the alternative, under
Golding. We conclude that the claim fails under both
Golding and the plain error doctrine.
On July 10, 2013, the court stated on the record that
defense counsel had submitted a request to charge
regarding the evidence of prior sexual misconduct and
that the court would adopt the defendant’s request. The
court then read the defendant’s requested instruction
to the jury, adding only that the prior event occurred
in August, 2011. Thus, as a matter of law, any error in
the instruction was induced by the defendant and may
not form the basis of a reversal. See State v. Gibson,
270 Conn. 55, 66, 850 A.2d 1040 (2004) (induced error
defined as ‘‘[a]n error that a party cannot complain of
on appeal because the party, through conduct, encour-
aged or prompted the trial court to make the erroneous
ruling’’ [internal quotation marks omitted]). We now
consider the defendant’s request to review his claim
under Golding or the plain error doctrine.
Our Supreme Court has concluded that Golding
review is inappropriate where the error is induced. State
v. Cruz, 269 Conn. 97, 105, 848 A.2d 445 (2004). In
Cruz, the defendant was convicted of assault in the
first degree and appealed the judgment on the basis
that the court erred when it instructed the jury on self-
defense. Id., 101–103. The defendant, however,
requested the self-defense instruction and, as a result,
our Supreme Court held that any error was induced
and that induced claims inherently fail under Golding.
Id., 106–107. In the present case, the defendant similarly
requested the very instruction that he now challenges
on appeal. We, therefore, decline to consider this claim
under Golding.
We now turn to the defendant’s alternative claim of
plain error. ‘‘[T]he plain error doctrine . . . is not . . .
a rule of reviewability. It is a rule of reversibility. That
is, it is a doctrine that this court invokes in order to
rectify a trial court ruling that, although either not prop-
erly preserved or never raised at all in the trial court,
nonetheless requires reversal of the trial court’s judg-
ment, for reasons of policy. . . . In addition, the plain
error doctrine is reserved for truly extraordinary situa-
tions where the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . .
‘‘[W]e recently clarified the two step framework
under which we review claims of plain error. First, we
must determine whether the trial court in fact commit-
ted an error and, if it did, whether that error was indeed
plain in the sense that it is patent [or] readily discernible
on the face of a factually adequate record, [and] also
. . . obvious in the sense of not debatable. . . . We
made clear . . . that this inquiry entails a relatively
high standard, under which it is not enough for the
defendant simply to demonstrate that his position is
correct. Rather, the party seeking plain error review
must demonstrate that the claimed impropriety was
so clear, obvious and indisputable as to warrant the
extraordinary remedy of reversal.’’ (Citation omitted;
internal quotation marks omitted.) Crawford v. Com-
missioner of Correction, 294 Conn. 165, 204–205, 982
A.2d 620 (2009).
Our review of the record leads us to the conclusion
that the claimed error in the jury instruction, although
potentially ambiguous in its meaning, fails to rise to
the level of plain error. On appeal, the defendant chal-
lenges the following statement made during the instruc-
tion: ‘‘If you believe the prior sexual contact occurred
and that it was criminal misconduct, then you must
also find that it rationally and logically supports a the-
ory that the defendant had a propensity to commit simi-
lar criminal sexual misconduct . . . .’’ (Emphasis
added.) The defendant argues that the word ‘‘must’’
created a mandatory presumption, instructing the jury
that if it believed that the August, 2011 incident
occurred, then it was required to find that the defendant
had a propensity to engage in sexual misconduct.
Although this is one possible interpretation of the
instruction, it is not the only reasonable one. The jury
also could have understood the statement to require
that it make two separate factual findings before it
could consider the victim’s testimony concerning the
August, 2011 incident in reaching its verdict. Accord-
ingly, the instruction could be understood as requiring
the jury, first, to evaluate the credibility of the victim’s
testimony regarding the 2011 misconduct and, second,
to determine if that misconduct logically supports a
theory of propensity. The use of ‘‘must’’ in that context
requires the jury to make two distinct findings before
it could consider the weight of the uncharged sexual
misconduct evidence. Thus, we conclude that the state-
ment was, at most, ambiguous and, therefore, not an
error so plain on its face and ‘‘obvious in the sense of
being not debatable.’’ Crawford v. Commissioner of
Correction, supra, 294 Conn. 205. Consequently, the
defendant’s claim fails to meet the high standard of the
plain error doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-71 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the second degree when such person engages in
sexual intercourse with another person and . . . (3) such other person is
physically helpless . . . .’’
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
3
On the night of the party, the victim’s children were not at her residence.
4
In DeJesus, our Supreme Court concluded that ‘‘evidence of uncharged
misconduct properly may be admitted in sex crime cases under the liberal
standard, provided its probative value outweighs its prejudicial effect, to
establish that the defendant had a tendency or a propensity to engage in
certain aberrant and compulsive sexual behavior.’’ State v. DeJesus, supra,288 Conn. 463. This conclusion created a limited exception to § 4-5 (a) of
the Connecticut Code of Evidence, which prohibits ‘‘[e]vidence of other
crimes, wrongs or acts of a person . . . to prove the bad character or
criminal tendencies of that person.’’ The DeJesus exception was later codi-
fied in § 4-5 (b) of the Connecticut Code of Evidence.
5
Section 4-5 (b) of the Connecticut Code of Evidence was amended in
June, 2011 (effective January 1, 2012) to codify the principles of DeJesus.
It provides that ‘‘[e]vidence of other sexual misconduct is admissible in a
criminal case to establish that the defendant had a tendency or a propensity
to engage in aberrant and compulsive sexual misconduct if: (1) the case
involves aberrant and compulsive sexual misconduct; (2) the trial court
finds that the evidence is relevant to a charged offense in that the other
sexual misconduct is not too remote in time, was allegedly committed upon
a person similar to the alleged victim, and was otherwise similar in nature
and circumstances to the aberrant and compulsive sexual misconduct at
issue in the case; and (3) the trial court finds that the probative value of
the evidence outweighs its prejudicial effect.’’ Conn. Code Evid. § 4-5 (b).
6
The court in DeJesus placed several requirements on the admission of
prior sexual misconduct evidence. The court stated that this evidence may
be admitted in sex crimes if: ‘‘(1) the trial court finds that such evidence
is relevant to the charged crime in that it is not too remote in time, is
similar to the offense charged and is committed upon persons similar to
the prosecuting witness; and (2) the trial court concludes that the probative
value of such evidence outweighs its prejudicial effect. State v. DeJesus,
supra, 288 Conn. 476. ‘‘In assessing the relevancy of such evidence, and in
balancing its probative value against its prejudicial effect, the trial court
should be guided by this court’s prior precedent construing the scope and
contours of the liberal standard pursuant to which evidence of uncharged
misconduct previously was admitted under the common scheme or plan
exception. Lastly, prior to admitting evidence of uncharged sexual miscon-
duct under the propensity exception adopted herein, the trial court must
provide the jury with an appropriate cautionary instruction regarding the
proper use of such evidence.’’ Id., 476–77.
7
General Statutes § 53a-65 (6) defines ‘‘ ‘[p]hysically helpless’ ’’ as when
‘‘a person is . . . unconscious, or . . . for any other reason, is physically
unable to communicate unwillingness to an act of sexual intercourse or
sexual contact.’’
8
‘‘Under [State v. Golding, supra, 213 Conn. 239–40], 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 violation of a fundamental right; (3) the alleged constitutional
violation clearly exists and clearly deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt. . . . The first two Golding requirements involve whether the claim
is reviewable, and the second two involve whether there was constitutional
error requiring a new trial.’’ (Internal quotation marks omitted.) State v.
Fagan, 280 Conn. 69, 89–90, 905 A.2d 1101 (2006), cert. denied, 549 U.S.
1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).
9
On July 10, 2013, the court stated that it had received a request to charge
from the defendant regarding the prior sexual misconduct evidence. The
court stated on the record as follows: ‘‘I am going to adopt that requested
charge. . . . [B]ut I’m just adding the words that the alleged event happened
in August of 2011.’’
Also on July 10, 2013, the court stated the following regarding the prior
sexual misconduct limiting instruction: ‘‘I did review a requested charge by
the defendant, Attorney [Christopher] Duby on behalf of the defendant, on
uncharged misconduct, prior sexual behavior. I am—I am going to adopt
that requested charge. I’ve indicated that to—to the state, again, in our
conference this morning. So, the judicial secretary is preparing that right
now. She will give you a copy of that, of course, Attorney Duby already has
submitted it, but I’m just adding in the words that the alleged event happened
in August of 2011.’’
The court then asked counsel whether there was any other issues regard-
ing the instruction, to which the prosecutor and defense counsel responded,
‘‘No, sir’’ and ‘‘No, Your Honor,’’ respectively.
10
In the defendant’s appellate brief, he states, ‘‘With respect to the court’s
final instruction, because the court adopted defense counsel’s proposed
instruction, [the defendant] concedes that any error was induced.’’