State v. Joseph B. , 187 Conn. App. 106 ( 2019 )

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STATE OF CONNECTICUT v. JOSEPH B.*
(AC 40847)
Alvord, Moll and Bear, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree, sexual assault
in the third degree, and risk of injury to a child in connection with his
alleged sexual abuse of the minor victim, the defendant appealed. On
appeal, he claimed, inter alia, that the trial court erred by denying his
motion for a bill of particulars because the substitute information was
overly broad and vague, which deprived him of notice of the nature of
the charges brought against him and his right to present a defense. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
motion for a bill of particulars: the defendant was not prejudiced by
the court’s denial of his motion, as he had access to a copy of the
victim’s forensic interview, which contained statements of the victim
that he claimed gave the state knowledge of more specific dates, the
victim testified as to the specific instances at trial as well, and the
defendant did not attempt to offer an alibi with regard to the specific
instances identified by the victim or request a continuance to formulate
an alibi; moreover, the defendant failed to demonstrate how he would
have prepared his defense differently had the state charged him in
accordance with the victim’s statements made during her forensic
interview.
2. The defendant could not prevail in his claim that the trial court improperly
admitted evidence that the victim tested positive for a certain sexually
transmitted disease: the fact that the victim was diagnosed with a sexu-
ally transmitted disease was relevant and probative as to the victim’s
having had sexual contact, and given the victim’s testimony that the
defendant had sexual contact with her when he assaulted her through
penile-vaginal penetration and her medical records, which provided that
she was not sexually active, her diagnosis logically tended to prove that
she had sexual contact with an individual, and the evidence that she
had the requisite contact only with the defendant made it more likely
that the defendant engaged in the conduct with which he was charged;
moreover, the evidence pertaining to the victim’s diagnosis was not
unduly prejudicial, as the victim testified that the defendant sexually
assaulted her before the jury heard testimony regarding her diagnosis,
the testimony of the victim’s mother regarding the victim’s change in
behavior corroborated the victim’s report of the assault, the evidence
pertaining to the victim’s diagnosis was consistent with other evidence
presented by the state, and the trial court gave the jury a specific
instruction, which it was presumed to have followed, not to consider
the evidence of the victim’s diagnosis for the purpose of determining
whether it was the defendant who infected the victim.
3. The trial court did not abuse its discretion in denying the defendant’s
motion to preclude evidence of certain text messages from the defendant
to the victim’s mother:
a. The defendant could not prevail in his claim that the text messages
should have been precluded as untimely because the prosecutor knew
or should have known of their existence prior to their disclosure at the
start of trial; the prosecutor complied with discovery requirements by
timely disclosing the evidence to the trial court and defense counsel on
the same morning that the victim’s mother informed her of the messages,
and although the defendant relied on certain reports in support of his
claim that the prosecutor should have been aware of the text messages,
those reports did not specify the content of any text messages or contain
information that there was text message evidence of the defendant’s
offerings of gifts or money.
b. The defendant’s claim that the evidence of text messages should have
been precluded as a sanction under the applicable rule of practice (§ 40-
5) was unavailing; because the prosecutor timely disclosed evidence of
the text messages, which the defendant conceded that he sent to the
victim’s mother, the prosecutor complied with discovery requirements
and, therefore, it was unnecessary for the trial court to impose the
sanctions provided by § 40-5.
Argued September 26, 2018—officially released January 15, 2019
Procedural History
Substitute information charging the defendant with
two counts of the crime of sexual assault in the first
degree, two counts of the crime of sexual assault in
the third degree, and six counts of the crime of risk of
injury to a child, brought to the Superior Court in the
judicial district of Fairfield and tried to the jury before
Kavanewsky, J; verdict and judgment of guilty of one
count of sexual assault in the first degree, one count
of sexual assault in the third degree, and four counts
of risk of injury to a child, from which the defendant
appealed. Affirmed.
James B. Streeto, senior assistant public defender,
with whom was Zachary Peck, former certified legal
intern, for the appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Ann P. Lawlor, senior assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Joseph B., appeals from
the judgment of conviction, rendered following a jury
trial, of one count of sexual assault in the first degree
in violation of General Statutes § 53a-70 (a) (2), one
count of sexual assault in the third degree in violation
of General Statutes § 53a-72a (a) (2), two counts of risk
of injury to a child in violation of General Statutes § 53-
21 (a) (1), and two counts of risk of injury to a child
in violation of § 53-21 (a) (2).1 On appeal, the defendant
claims that the trial court abused its discretion when
it (1) denied his motion for a bill of particulars, (2)
admitted evidence that the victim was diagnosed with
trichomonas vaginalis, and (3) admitted evidence of
text messages that were disclosed on the first day of
trial. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. From 2010 to 2013, the defendant lived with his
wife in the third floor apartment of a multi-family home
on Jefferson Street in Bridgeport. The victim, A, who
is the defendant’s biological granddaughter, was five
years old in 2010 and lived with her mother and her
brother in the first floor apartment at that same address.
A went upstairs to the defendant’s apartment almost
every day after she got home from school. On more
than one occasion, when the defendant’s wife was not
home, the defendant touched A’s chest, vagina, and
lower back while A’s clothes were off. A specifically
remembered one instance in which she was lying on
the defendant’s bed and he was going to touch her when
they heard her cousin coming up the stairs. In addition,
on a different occasion, the defendant asked A if she
could bring over her friend, who lived across the street,
so that he could do the same to her friend.
In February, 2013, the defendant moved to Birch
Drive in Stratford. A’s mother brought A to the defen-
dant’s apartment two weekends per month, during
which A stayed overnight, in order for the defendant
and the defendant’s wife to watch A while A’s mother
worked. While the defendant lived at this address, he
repeatedly engaged in penile-vaginal and penile-anal
intercourse with A. Some instances of penetration
occurred during the summer between A’s third and
fourth grade school years. During that summer, the
defendant also asked A to place her hand on his penis
a few times, and although she refused at first, she even-
tually complied. When A started fourth grade, her
behavior changed at school, and she became physically
aggressive on two different occasions, which was out
of character for A. A also experienced three incidents
of bedwetting.2
In November, 2014, when A was nine, she was watch-
ing television at the defendant’s apartment when she
heard the defendant call her name. She went into his
room, where he told her to take off her clothes and to
lie on the bed. The defendant then engaged in penile-
vaginal intercourse with A.3 The defendant told A that
if she told anyone, he would go to jail, and asked, ‘‘do
you want your grandfather to go to jail[?]’’
A few weeks later, A wrote a note to her mother
disclosing that the defendant had been sexually
assaulting her.4 A’s mother immediately contacted the
police, as well as A’s doctor. On December 2, 2014, A
was examined by Sarah Donahue, a nurse practitioner
who worked at A’s doctor’s office. A told Donahue that
the defendant sexually assaulted her through penile-
vaginal penetration in excess of twenty-five times. Dur-
ing the physical examination, Donahue did not observe
any signs of trauma,5 but she immediately referred A
to the Yale Child Sexual Abuse Clinic at Yale-New
Haven Hospital.
At the Yale Child Sexual Abuse Clinic, A was exam-
ined by Rebecca Moles, a pediatrician specializing in
issues of child abuse. Dr. Moles reported that A had
‘‘normal appearing genital anatomy’’ and that the anat-
omy, including her hymen and the tissue surrounding
the outside of the vagina, appeared ‘‘normally formed.’’6
During the examination, Dr. Moles also observed that
A had vaginal discharge, which she recognized to be a
symptom of trichomonas vaginalis, a sexually transmit-
ted disease. After testing A, Dr. Moles confirmed that
A was infected with trichomonas vaginalis.
In the beginning of December, 2014, after A’s mother
reported the sexual abuse to the police, the defendant
sent several text messages to A’s mother. In these text
messages, the defendant told A’s mother that he had
money for her, A, and A’s brother. The defendant also
sent a text message to A’s mother stating that he would
buy her a gift if she would accept it.
On December 10, 2014, Detective William Perillo of
the Stratford Police Department interviewed the defen-
dant at the defendant’s home. When Detective Perillo
began to question the defendant, he asked whether
Detective Perillo had any DNA evidence. In addition,
he told Detective Perillo that A was not a liar, but that
he was not involved in what they were talking about.
On January 2, 2015, Detective Perillo arrested the
defendant.
A jury trial followed, at the conclusion of which the
defendant was found guilty of one count of sexual
assault in the first degree, one count of sexual assault
in the third degree, and four counts of risk of injury to
a child.7 The court rendered judgment in accordance
with the jury’s verdict and imposed a total effective
sentence of eighteen years imprisonment and lifetime
sex offender registration. This appeal followed. Addi-
tional facts will be set forth as necessary.
I
The defendant claims that the trial court abused its
discretion when it denied his motion for a bill of particu-
lars. Specifically, the defendant asserts that the substi-
tute information was overly broad and vague, depriving
him of notice of the nature of the charges brought
against him and his right to present a defense. He argues
that the state should have narrowed the time periods
in the information using A’s forensic interview. He
claims the court’s denial of his motion for a bill of
particulars prejudiced his defense. We disagree that the
denial of the motion prejudiced the defendant.
The following additional facts and procedural history
are relevant to our resolution of this claim. On Decem-
ber 5, 2014, A underwent a forensic interview at the
Family Justice Center in Bridgeport.8 During the inter-
view, A described some of the incidents as having
occurred (1) when she ‘‘just turned six,’’ (2) ‘‘at the end
of the [previous] school year,’’ (3) ‘‘during [her] summer
break between third and fourth grade,’’ and (4) ‘‘the
second Sunday of November of 2014.’’9
The state filed a long form information on February
4, 2015, charging the defendant with sexual assault in
the first degree, sexual assault in the third degree, and
risk of injury to a child, arising out of conduct that
occurred in June, 2012, at Birch Drive in Stratford.
On April 12, 2016, the state filed a ten count substitute
information. The information charged the defendant
with sexual assault in the first degree, sexual assault
in the third degree, and two different counts of risk of
injury to a child for conduct that occurred ‘‘on diverse
dates from approximately 2010 to 2012, at or near Jeffer-
son Street’’ in Bridgeport. In addition, the substitute
information charged the defendant with two different
counts of risk of injury to a child for conduct that
occurred ‘‘on diverse dates, from approximately 2010
to 2012, at or near Hollister Avenue’’10 in Bridgeport.
The defendant was also charged with sexual assault in
the first degree, sexual assault in the third degree, and
two different counts of risk of injury to a child for
conduct occurring ‘‘on diverse dates during 2013 and
2014, at or near . . . Birch Drive’’ in Stratford.
On April 18, 2016, the defendant filed a motion for a
bill of particulars, requesting that the court order the
state to include the date, time, particular location, and
manner of the commission of each alleged count. In
his motion, the defendant argued that (1) it was impossi-
ble to determine if the offenses charged in the substitute
information stemmed from a minimum of three inci-
dents or a maximum of ten incidents, (2) alleging
‘‘diverse dates’’ in each count ‘‘incorrectly allows the
[s]tate to combine incidents from different dates to
make up elements of the crime,’’ and (3) ‘‘[e]ach count
has a time period of approximately [two] years during
which time the [s]tate alleges each crime occurred.’’
The defendant argued that the substitute information
was insufficient to enable him to prepare a defense.
The court scheduled a hearing on this motion for April
19, 2016.
On April 19, 2016, before the hearing on the motion for
a bill of particulars, the state filed the operative sub-
stitute information. The first two counts of the ten count
substitute information charged the defendant with risk
of injury to a child for conduct that occurred ‘‘during
2010, at or near . . . Holly Street’’ in Bridgeport.
Counts three through six charged the defendant with
two different counts of risk of injury to a child, sexual
assault in the first degree, and sexual assault in the
third degree for conduct that occurred ‘‘on or about
2010 through 2013, at or near . . . Jefferson Street’’
in Bridgeport. Counts seven through ten charged the
defendant with sexual assault in the first degree, two
different counts of risk of injury to a child, and sexual
assault in the third degree for conduct occurring ‘‘on
or about 2013 through 2014, at or near . . . Birch
Drive’’ in Stratford.
At the hearing, the defendant acknowledged that the
state’s substitute information filed earlier that day
resolved some of his issues with the previous substitute
information, particularly with the deletion of the
‘‘diverse dates’’ language from each count. The defen-
dant maintained, however, that he still did not know
the number of alleged incidents, which, he argued, ‘‘puts
the defense at a disadvantage because the [s]tate can
then basically form their closing argument and form
their evidence to the pleadings in various ways.’’ In
addition, the defendant argued that the 2010 through
2013 time frame, alleged in counts seven through ten,
made it difficult to ‘‘fashion any kind of alibi defense or
recollection defense in terms of factual inconsistencies
that [the defendant] could provide pertaining to those
incidents . . . .’’ At the conclusion of the hearing,
the court determined that the substitute information
filed that day was legally sufficient and denied the
defendant’s motion for a bill of particulars. Specifically,
the court concluded that the substitute information
narrowed the time periods of the offenses and ‘‘clearly
track[ed]’’ the defendant’s residences where the
offenses were alleged to have occurred. In addition, the
court noted that the defendant had the benefit of the
full disclosure to which he was entitled, including police
reports and statements. Lastly, the court concluded that
it did not know how A would testify and that her testi-
mony might eliminate some of the defendant’s con-
cerns.
At trial, after the state presented its case, the defen-
dant renewed his motion for a bill of particulars. He
again argued that he did not know how many incidents
were alleged to have occurred based on the state’s
charges. In response, the state argued that A ‘‘testified
very clearly about multiple incidents of sexual abuse
at the hands of her grandfather.’’ The court denied the
defendant’s motion.
The defendant’s wife subsequently testified on the
defendant’s behalf. She initially testified that A was
never left at home alone with the defendant. She later
testified, however, that she had been away from the
home for about two months in 2014. In addition, the
defendant’s wife stated that there were a few days dur-
ing the summer of 2014, in between A’s third and fourth
grade school years, when the defendant watched A by
himself. The defendant’s wife also testified that A was
left home alone with the defendant on the morning of
November 2, 2014, when she went to church without A.11
The defendant took the witness stand and denied
that he touched and sexually assaulted A. The defend-
ant testified that he was unemployed from 2010 to 2013
and spent his time playing pool and gambling at a club
in Bridgeport. He explained that he would ‘‘miss two,
three days some week[s]’’ because he sometimes
‘‘wouldn’t go on a Tuesday or some days [he] wouldn’t
go on a Wednesday, but every Thursday, Friday and
Saturday, [he] would be there.’’ In 2013, the defendant
became a bookkeeper for the club. He testified that he
worked every day of the week from 8 a.m. to 10 p.m.
The defendant also testified, however, that he did not
work on Sundays during the summer of 2014, which
was the summer in between A’s third and fourth grade
school years. In addition, the defendant explained that,
although A went to church with his wife on most Sun-
days, there were occasions that A stayed home with
the defendant by himself. He specifically recalled that
there was a Sunday in the beginning of November, 2014,
the last time that A went to his apartment, when his
wife went to church and A stayed at the apartment alone
with the defendant. When asked whether he touched
A in any way on that Sunday, the defendant responded,
‘‘No, I did not. I never did really have any problem. We
had a good relationship.’’
In its final charge to the jury, the court instructed:
‘‘[T]here may have been testimony from [A] that the
defendant committed these crimes against her more
than once during the time periods stated in these
counts, although she could not specify exact dates. The
[s]tate is not required to prove the exact date of any
offense so long as it proves beyond a reasonable doubt
that a crime, that is, all the elements of the crime, did
occur at least once on the same single occasion during
the time period covered in a particular count.’’
We begin by setting forth the standard of review and
the legal principles that guide our analysis of this claim.
‘‘[T]he denial of a motion for a bill of particulars is
within the sound discretion of the trial court and will
be overturned only upon a clear showing of prejudice
to the defendant. . . . A defendant can gain nothing
from [the claim that the pleadings are insufficient] with-
out showing that he was in fact prejudiced in his defense
on the merits and that substantial injustice was done
to him because of the language of the information.’’
(Citations omitted; internal quotation marks omitted.)
State v. McDougal, 241 Conn. 502, 521–22, 699 A.2d 872(1997); see also State v. Spigarolo, 210 Conn. 359, 385,
556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322,
107 L. Ed. 2d 312 (1989). ‘‘The defendant has the burden
of showing why the additional particulars were neces-
sary to the preparation of his defense.’’ (Internal quota-
tion marks omitted.) State v. Vumback, 263 Conn. 215,
221, 819 A.2d 250 (2003).
‘‘The sixth amendment to the United States constitu-
tion and article first, § 8, of the Connecticut constitution
guarantee a criminal defendant the right to be informed
of the nature and cause of the charges against him with
sufficient precision to enable him to meet them at trial.
. . . [That] the offense should be described with suf-
ficient definiteness and particularity to apprise the
accused of the nature of the charge so he can prepare
to meet it at his trial . . . are principles of constitu-
tional law [that] are inveterate and sacrosanct.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Laracuente, 205 Conn. 515, 518, 534 A.2d 882 (1987),
cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed.
2d 913 (1988). Moreover, ‘‘[t]he state has a duty to
inform a defendant, within reasonable limits, of the
time when the offense charged was alleged to have been
committed. The state does not have a duty, however,
to disclose information which the state does not have.
Neither the sixth amendment of the United States con-
stitution nor article first, § 8, of the Connecticut consti-
tution requires that the state choose a particular
moment as the time of an offense when the best infor-
mation available to the state is imprecise.’’ State v.
Stepney, 191 Conn. 233, 242, 464 A.2d 758 (1983), cert.
denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d
772 (1984).
The defendant claims that he was prejudiced by the
court’s denial of his motion for a bill of particulars. It
is undisputed, however, that, at the time of the hearing
on the motion, the defendant had access to a copy of
A’s forensic interview. ‘‘[T]his court has on numerous
occasions adverted to sources extrinsic to the specific
count or information to determine whether the defen-
dant was sufficiently apprised of the offense charged.
See, e.g., State v. Frazier, [194 Conn. 233, 237, 478 A.2d
1013 (1984)] (defendant sufficiently apprised where he
had access to state’s file, police reports and demonstra-
tive evidence); State v. Beaulieu, 164 Conn. 620, 626,
325 A.2d 263 (1973) (information supplied by another
count, state’s attorney and court); see also State v. Mof-
fett, 38 Conn. Supp. 301, 310, 444 A.2d 239 (1981) (defen-
dant’s access to prosecution file).’’ State v. Spigarolo,
supra, 210 Conn. 384.
In State v. Vumback, supra, 263 Conn. 216–17, our
Supreme Court concluded that the defendant had failed
to demonstrate prejudice from the trial court’s denial
of his motion for a bill of particulars. The defendant
was charged with repeatedly sexually abusing and
attempting to sexually abuse a child victim on ‘‘[diverse]
dates between approximately June, 1990 and July, 1996
. . . .’’ (Internal quotation marks omitted.) Id., 219.
Although the operative information alleged that the
offenses occurred over a six year period, the state had
previously filed four informations alleging more specific
time frames, such as between July 1 and July 10, 1996,
between July 5 and July 10, 1996, and between July 5
and July 15, 1996. Id. In addition, the victim had reported
that two instances of sexual abuse occurred two weeks
before, and two days before, her physician appoint-
ments. Id., 224. The victim testified at trial that no one
ever had asked her to pinpoint the specific dates on
which the sexual assaults by the defendant occurred.
Id. For these reasons, the court concluded that the state
did not use its best efforts to provide a more narrow
time frame to the defendant. Id., 224–25. Accordingly,
the court determined that the trial court abused its
discretion by denying the defendant’s motion for a bill
of particulars. Id., 227.
The court in Vumback concluded, however, that
although the trial court abused its discretion by deny-
ing the defendant’s motion for a bill of particulars, the
defendant had failed to demonstrate prejudice from the
court’s decision. Id. In reaching its conclusion, the court
found that the defendant did not demonstrate that the
more specific dates that the state possessed were neces-
sary to his defense. Id., 228–29. Specifically, the court
noted that, although the defendant introduced general
alibi evidence that he was often working or taking
classes, after the victim testified about two specific
dates of abuse, the defendant did not attempt to offer
an alibi with regard to them or request a continuance
to formulate an alibi. Id., 229–30. Most significantly, the
defendant was aware of the state’s prior informations
and had access to the state’s file before trial, which
included the reports containing the dates he claimed
were missing from the information. Id., 228–29.
Although we recognize that the state could have pro-
vided a more specific time frame with respect to the
final incident that occurred in November, 2014, we need
not decide whether the court abused its discretion in
failing to grant the defendant’s motion on that basis.
Even if we assume that the court abused its discretion,
the defendant in the present case failed to demonstrate
prejudice for the same reasons as the defendant in
Vumback. Just as the defendant in Vumback had access
to the prior informations and reports, the defendant in
the present case had a recording of A’s forensic inter-
view. The forensic interview contained A’s statements
that the defendant claims gave the state knowledge of
more specific dates. A testified as to these specific
instances at trial as well. Yet, like the defendant in
Vumback, the defendant here did not attempt to offer
an alibi with regard to the specific instances identified
by A or request a continuance to formulate an alibi.
For example, with regard to the penile-vaginal inter-
course in November, 2014, the defendant did not pre-
sent alibi evidence. Instead, the defendant admitted that
he had been alone with A while his wife went to church
but denied the allegations of sexual abuse. In addition,
with regard to the summer between A’s third and fourth
grade school years, the defendant offered general alibi
evidence that he worked ‘‘every day,’’ but he admitted
that he did not work on Sundays. This evidence is con-
sistent with A’s testimony that the defendant sexually
assaulted her when the defendant’s wife was at church
and A was left alone with the defendant. The defendant
did not attempt to offer alibi evidence for a single Sun-
day of that summer.
Furthermore, the defendant in the present case failed
to demonstrate how he would have prepared his
defense differently had the state charged him in accor-
dance with A’s statements during her forensic inter-
view. ‘‘A defendant can gain nothing from [the claim
that the pleadings are insufficient] without showing that
he was in fact prejudiced in his defense on the merits
and that substantial injustice was done to him because
of the language of the information. . . . To establish
prejudice, the defendant must show that the informa-
tion was necessary to his defense, and not merely that
the preparation of his defense was made more burden-
some or difficult by the failure to provide the informa-
tion.’’ (Internal quotation marks omitted.) State v.
Vlahos, 138 Conn. App. 379, 396–97, 51 A.3d 1173 (2012),
cert. denied, 308 Conn. 913, 61 A.3d 1101 (2013). Under
the circumstances, the defendant has failed to establish
that the denial of his motion for a bill of particulars
prejudiced his defense on the merits.
II
The defendant next claims that the trial court improp-
erly admitted evidence that A tested positive for tricho-
monas vaginalis. Specifically, the defendant argues that
the evidence was irrelevant, or, alternatively, that the
evidence was unfairly prejudicial. We disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. In Novem-
ber, 2014, A complained to her mother of vaginal itching.
During Dr. Moles’ examination of A, Dr. Moles admin-
istered tests for sexually transmitted diseases such
as gonorrhea, chlamydia, HIV, syphilis, and hepatitis.
Upon observing irritation, tenderness, and discharge
during her examination of A’s vagina, Dr. Moles also
tested A for trichomonas vaginalis. The tests came back
positive for trichomonas vaginalis. The defendant was
never tested to determine whether he had trichomonas.
On April 20, 2016, the defendant filed a motion in
limine, requesting the court to exclude any testimony
and evidence regarding A’s medical diagnosis of tricho-
monas vaginalis. In his motion, the defendant argued
that evidence of the sexually transmitted disease was
not relevant and that ‘‘any value that exists is out-
weighed by the potential prejudice, confusion and litiga-
tion of events that are unrelated to the information
as charged.’’
The court heard arguments regarding the defendant’s
motion in limine on April 26, 2016, the second day of
trial. The defendant argued that there was ‘‘no evidence
. . . to show that [the defendant] was the individual
who was responsible for A contracting this sexually
transmitted disease,’’ and that, therefore, ‘‘the link in
making that relevant is missing . . . .’’ In addition, he
argued that the evidence was prejudicial.
The court denied the defendant’s motion in limine.
The court concluded that evidence of A’s medical diag-
nosis of trichomonas vaginalis was ‘‘highly probative’’
and ‘‘very relevant to establish that the child had sexual
contact . . . or was engaged in sexual penetration with
another person. And that’s part of the state’s burden
of proof, to prove that that fact did occur.’’ The court
further explained that it ‘‘[a]greed that there’s nothing
about [the defendant] in terms of absolute linkage
there,’’ but that the jury could make inferences from the
testimony, because A testified that it was the defendant
who sexually abused her. The court also indicated that it
would give a limiting instruction regarding the medical
diagnosis of A’s trichomonas vaginalis to inform the
jury that the evidence was not being admitted to prove
that the defendant gave A the disease, and that it, as
the finder of fact, could make reasonable inferences
from the medical finding and from A’s testimony.
Dr. Moles subsequently testified about A’s diagnosis
of trichomonas vaginalis. She stated that ‘‘trichomonas
is a sexually transmitted infection . . . that is transmit-
ted sexually’’ and that trichomonas vaginalis is most
commonly transmitted through penile-vaginal penetra-
tion. She testified that there have been reports about
trichomonas vaginalis being transmitted when mothers
give birth to children; however, she explained that even
if a child is initially infected in such a manner, the
infection clears within the first year of the child’s life.12
She further testified that trichomonas vaginalis is
uncommon in children, ‘‘so uncommon . . . that it is
listed in the guidelines from the American Academy of
Pediatrics . . . as a reportable condition. So, meaning,
if it’s diagnosed in a child, it is recommended . . . that
the pediatrician then report concerns of sexual abuse
based on that infection, report those concerns to
Department of Children [and] Families, to police,
depending on the jurisdiction.’’
Immediately following Dr. Moles’ testimony, the
court gave the following limiting instruction to the jury:
‘‘[T]he trichomonas diagnosis . . . is being admitted
only for the purpose—if you find it credible, only for
the purpose of your consideration of whether or not
[A] had sexual contact with another person. It’s not
being admitted for the purpose of the conclusory deter-
mination of whether or not it was [the defendant] who
was responsible for the trichomonas. I’m admitting it
only for the purpose of your consideration of whether
or not the child had sexual contact, period. And you
can draw any reasonable inferences [from] that as you
would . . . .’’ In addition, in its final charge to the jury,
the court instructed: ‘‘I said that evidence that [A] was
diagnosed with a sexually transmitted disease was
admitted for your consideration as to whether [A] had
sexual contact with another person. That evidence itself
was not admitted to establish that it showed the identity
of the person who infected [A].’’
We begin by setting forth the standard of review and
legal principles that guide our analysis of this claim.
It is well established that ‘‘[t]he trial court has broad
discretion in ruling on the admissibility . . . of evi-
dence. . . . The trial court’s ruling on evidentiary mat-
ters will be overturned only upon a showing of a clear
abuse of the court’s discretion. . . . We will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest
abuse of discretion. . . . Moreover, evidentiary rulings
will be overturned on appeal only where there was an
abuse of discretion and a showing by the defendant of
substantial prejudice or injustice.’’ (Internal quotation
marks omitted.) State v. Anwar S., 141 Conn. App. 355,
374–75, 61 A.3d 1129, cert. denied, 308 Conn. 936, 66
A.3d 499 (2013).
This claim is controlled by this court’s decision in
Anwar S.13 In Anwar S., a child victim of sexual assault
was diagnosed with chlamydia. Id., 359. The defendant
claimed that evidence of the victim’s chlamydia diagno-
sis was irrelevant because no evidence was offered to
connect him to the transmission of the disease. Id., 374.
This court held that the evidence was relevant and
probative as to the victim’s having had sexual contact.
Id., 375. This court determined that whether the defen-
dant sexually assaulted the victim was a disputed, mate-
rial issue of fact. Id. It further explained that expert
testimony at trial provided that chlamydia is most com-
monly transmitted through sexual contact, and that the
victim testified that the defendant had sexual contact
with her when he assaulted her. Id. Therefore, this court
concluded that the victim’s diagnosis ‘‘logically tended
to prove that she had sexual contact with an individual
. . . [and] evidence that she had the requisite contact
only with the defendant made it more likely that the
defendant engaged in the conduct with which he was
charged.’’ Id. Our Supreme Court declined to review
this court’s decision.
Here, A, like the victim in Anwar S., was diagnosed
with a sexually transmitted disease.14 This evidence was
relevant and probative as to A’s having had sexual con-
tact. See id.; see also Conn. Code Evid. § 4-1. ‘‘Relevant
evidence is evidence that has a logical tendency to aid
the trier in the determination of an issue.’’ (Internal
quotation marks omitted.) Raybeck v. Danbury Ortho-
pedic Associates, P.C., 72 Conn. App. 359, 378, 805
A.2d 130 (2002). Here, like in Anwar S., whether the
defendant sexually assaulted A was a disputed, mater-
ial issue of fact. A was diagnosed with trichomonas vag-
inalis, which, according to Dr. Moles’ testimony, is
transmitted most commonly through sexual contact. A
testified that the defendant had sexual contact with her
when he assaulted her through penile-vaginal penetra-
tion. Furthermore, A’s medical records provided that
she was not sexually active.15 Like in Anwar S., A’s
diagnosis logically tended to prove that she had sexual
contact with an individual, and the evidence that she
had the requisite contact only with the defendant made
it more likely that the defendant engaged in the conduct
with which he was charged.
The defendant alternatively asserts that evidence per-
taining to A’s trichomonas vaginalis diagnosis was
unfairly prejudicial, as it had an adverse effect on him
beyond tending to prove that A had sexual contact. See
State v. James G., 268 Conn. 382, 399, 844 A.2d 810(2004) (‘‘evidence 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’’ [internal quotation
marks omitted]). Specifically, the defendant claims that
the evidence ‘‘unduly aroused the emotions, hostility,
and sympathy’’ of the jury by compelling it to speculate
that the defendant infected A with trichomonas vagi-
nalis. We are not persuaded.
This court addressed a similar claim in Anwar S. In
Anwar S., this court concluded that by the time the
jury heard testimony regarding the victim’s chlamydia
diagnosis, the victim had already testified specifically
that she was sexually assaulted by the defendant and,
therefore, the evidence of chlamydia was not unduly
prejudicial because it was consistent with other evi-
dence presented by the state at trial. State v. Anwar
S., supra, 141 Conn. App. 376. Similarly, in the present
case, A testified specifically that the defendant sexually
assaulted her before the jury heard testimony regarding
her trichomonas vaginalis diagnosis. See State v. James
G., supra, 268 Conn. 400 (evidence less likely to unduly
arouse jurors’ emotions when similar evidence has
already been presented to jury). Moreover, A’s mother’s
testimony regarding A’s change in behavior corrobo-
rated A’s report of the assault. Therefore, evidence per-
taining to trichomonas vaginalis was consistent with
other evidence presented by the state at trial, and we
cannot conclude that its admission was unfairly prejudi-
cial to the defendant.
In addition, the court specifically instructed the jury
not to consider evidence of the trichomonas vaginalis
diagnosis for the purpose of determining whether it
was the defendant who was responsible for infecting
A. Without evidence to the contrary, we presume that
the jury followed these instructions. See State v. Par-
rott, 262 Conn. 276, 294, 811 A.2d 705 (2003) (‘‘[b]arring
contrary evidence, we must presume that juries follow
the instructions given them by the trial judge’’ [internal
quotation marks omitted]). For the foregoing reasons,
we conclude that the trial court did not abuse its discre-
tion by admitting evidence that A tested positive for
trichomonas vaginalis.
III
The defendant’s last claim is that the trial court
improperly admitted evidence of text messages from
the defendant to A’s mother. Specifically, the defendant
argues that the court should have precluded this evi-
dence as untimely because the prosecutor who was in
charge of the trial knew or should have known of the
text messages prior to their disclosure at the start of
trial. We disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. On the
morning of April 25, 2016, the first day of trial, A’s
mother presented the prosecutor with screenshots of
text messages sent December 1, 2, and 5, 2014, from the
defendant to her. In these text messages, the defendant
stated that he had $110 for A, $65 for A’s mother, and
$25 for A’s brother. The defendant also stated that
‘‘[s]omeone text me said they can not stop u from calling
the cop? Let me know.’’ A few days later, the defendant
stated, ‘‘I’m buying [you a] gift if [you] [accept],’’ and
‘‘I’m not upset with you . . . . [H]ad to do what [you]
did.’’ A’s mother responded with a text message to the
defendant stating that he had no reason to be upset
with her. The defendant replied that he understood and
that ‘‘[either] way all [our] life is messed up.’’
The prosecutor informed the court and defense coun-
sel about these text messages on the same morning
that A’s mother brought the messages to her attention.
Although the prosecutor planned to call A’s mother
as its second witness, the court ordered A’s mother’s
testimony to be delayed until the next day ‘‘in fairness
. . . so everybody could digest the content’’ of the
text messages.
The next day, before A’s mother testified, the defen-
dant moved to preclude the admission of these text
messages into evidence. The defendant argued that,
even if the prosecutor did not actually know about the
text messages until the day they were disclosed to the
defendant, she should have known about the text mes-
sages earlier because text messages, according to coun-
sel, were mentioned in A’s medical report and gifts were
mentioned in records from the Department of Children
and Families. The defendant argued that the late disclo-
sure by the prosecutor disadvantaged him in preparing
his defense. He claimed that the text messages should
have been disclosed at the earliest stages of the case
and that their late disclosure violated his federal and
state constitutional rights to due process.
The court denied the defendant’s motion to preclude
the evidence. It concluded that the prosecutor was not
aware of the text messages at an earlier stage and there
was nothing in the reports cited by the defendant to
indicate that there were text messages of the defen-
dant’s offers of gifts. The court determined that the text
messages were relevant and probative, and that, even
though the text messages were not discovered by the
prosecutor nor disclosed to the defendant until the first
day of trial, the defendant would not need additional
time to prepare and develop a defense to this evidence.
A’s mother subsequently testified about the text mes-
sages. A’s mother stated: ‘‘[H]e’s never offered me
money . . . it was like he wanted to give us money
after the incident came out.’’ When the defendant testi-
fied, he attempted to explain the text messages by stat-
ing that he wanted to give A’s mother money to buy
gifts for Christmas.
We begin by setting forth the standard of review and
legal principles that guide our analysis of this claim. As
noted in part II of this opinion, the trial court’s ruling
on evidentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion. Prac-
tice Book § 40-11 discusses the disclosure of informa-
tion and materials discoverable by the defendant as
of right from the prosecuting authority. Specifically,
Practice Book § 40-11 (a) (1) requires, in relevant part,
that the state disclose any ‘‘papers, photographs, or
documents within the possession, custody or control
of any governmental agency, which the prosecuting
authority intends to offer in evidence in chief at trial
or which are material to the preparation of the defense
or which were obtained from or purportedly belong to
the defendant . . . .’’
We conclude that the trial court did not abuse its
discretion in admitting evidence of the text messages
sent from the defendant to A’s mother because the
prosecutor complied with discovery requirements by
timely disclosing the evidence shortly after she was
told about it. The prosecutor informed the court and
defense counsel of the text messages on the same morn-
ing that A’s mother brought the messages to her
attention.
The defendant argues that the prosecutor’s disclosure
of the text messages was untimely because the state
should have known of the text messages prior to the
first day of trial. He claims that ‘‘the record clearly
indicates that the state should have been aware of the
[text] messages’’ because of reports within the state’s
possession. We disagree. According to counsel at oral
argument on the defendant’s motion to preclude, during
A’s appointment with Donahue on December 2, 2014,
A’s mother informed A’s doctor that the defendant was
texting her almost daily. Donahue noted this informa-
tion in her report. The report, however, did not indicate
the content of the text messages. In addition, according
to counsel, A’s mother reported to the Department of
Children and Families that the defendant had been
offering to buy gifts for A and herself. A’s mother stated
that this offer was out of character for the defendant
and that she felt it was the defendant’s way of swaying
her to stop the police investigation. However, the prose-
cutor asserted that the report did not state that the
offers of gifts and money were contained in text mes-
sages. Consequently, there was no evidence that the
prosecutor should have known of the text messages
because, as the trial court concluded, neither report
contained the information that there was text message
evidence of the defendant’s offerings of gifts or money.
Therefore, the prosecutor’s disclosure of the text mes-
sages authored by the defendant, made on the same
morning she discovered the evidence, was timely.
The defendant argues that evidence of the text mes-
sages should have been precluded as a sanction under
Practice Book § 40-5.16 Section 40-517 gives ‘‘broad dis-
cretion to the trial judge to grant an appropriate remedy
for failure to comply with discovery requirements.’’
State v. Wilson F., 77 Conn. App. 405, 417, 823 A.2d
406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003).
Because the prosecutor timely disclosed evidence of
the text messages, which the defendant concedes that
he sent, the prosecutor complied with discovery
requirements and, therefore, it was unnecessary for the
trial court to impose any of the sanctions provided by
Practice Book § 40-5. Therefore, we conclude that the
court did not abuse its discretion in admitting evidence
of the text messages sent from the defendant to A’s
mother relating to the defendant’s offering gifts and
money to her, A, and A’s brother.
The judgment is affirmed.
In this opinion the other judges 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 identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
The defendant was acquitted of one count of sexual assault in the first
degree, one count of sexual assault in the third degree, and two counts of
risk of injury to a child. See footnote 7 of this opinion.
2
Danielle Williams, a licensed professional counselor, testified at trial as
to the symptoms experienced by children who have been sexually abused.
She explained that children sometimes exhibit changes in behavior, including
aggressive behavior, as well as bedwetting and difficulty sleeping.
3
A testified that the defendant used ‘‘[h]is private area and his hands’’ to
touch her and that his private area ‘‘entered . . . into [hers].’’ She described
her ‘‘private area’’ as ‘‘[t]he place where [she uses] the bathroom’’ in ‘‘[t]he
front of [her] body.’’
4
Immediately before A gave her mother this note, A’s mother ‘‘had the
conversation about perverts. And [she] explained that perverts come in
shapes of your family members, friends, and that [A] needs to tell [her] if
anything like that has ever happened to [A].’’ In the note, A wrote that the
defendant ‘‘has been doing it to [her].’’
5
At trial, Donahue explained that, even though she ‘‘did not find anything
out of the ordinary’’ during the examination, the examination did not confirm
or refute that anything had happened as far as the report of touching and pen-
etration.
6
Despite Dr. Moles’ report that A had ‘‘normal appearing genital anatomy,’’
Dr. Moles testified at trial that, with ‘‘suspected victims of sexual abuse
[who] have had penetration into the vagina, in the overwhelming majority
of cases, 95 percent of the time or more, there is a normal examination
. . . there’s no medical evidence . . . of loss of tissue or injury.’’
7
The defendant was also charged with additional counts of sexual assault
in the first degree, sexual assault in the third degree, and two counts of
risk of injury to a child. The facts underlying the sexual assault counts were
alleged to have occurred during 2010 to 2013 while the defendant lived at
Jefferson Street in Bridgeport, and the facts underlying the risk of injury
counts were alleged to have occurred in 2010 when the defendant lived at
Holly Street in Bridgeport, before he moved to Jefferson Street. The jury
acquitted the defendant of all of the offenses alleged to have occurred at
Holly Street. The jury also acquitted the defendant of both sexual assault
offenses alleged to have occurred at Jefferson Street.
8
A video recording of A’s forensic interview was marked for identification
the state’s exhibit 7, but was not admitted into evidence.
9
The defendant argues that the state should have narrowed the time
periods in the information using these statements. Specifically, the defendant
claims that the state could have narrowed the time frame for the conduct
when A ‘‘just turned six,’’ to reflect his granddaughter’s actual date of birth
and that A’s report of the incidents ‘‘during her summer break between
third and fourth grade’’ could have been narrowed to a period of three
months rather than being contained within a two year time frame. The
defendant also claims that, given A’s report of the last incident being on
the second Sunday in November, 2014, the state could have narrowed the
time frame to ‘‘November of 2014’’ rather than ‘‘on or about 2013 through
2014.’’ The defendant claims that A’s recollection of the incident that
occurred ‘‘at the end of the [previous] school year’’ should have led to a
more specific date through follow-up questions by the state.
Because we find that the defendant’s failure to demonstrate prejudice is
dispositive of this claim, we decline to determine whether the state should
have included more specific time frames in its charges based on these
statements or whether the trial court abused its discretion in denying the
defendant’s motion for a bill of particulars. See State v. Madagoski, 59 Conn.
App. 394, 404, 757 A.2d 47 (2000), cert. denied, 255 Conn. 924, 767 A.2d
100 (2001).
10
The state originally charged these offenses as having occurred at Hol-
lister Avenue, rather than Holly Street. A mistakenly referred to the defen-
dant’s address as being at Hollister Avenue during her forensic interview.
The state subsequently corrected the address to Holly Street in its operative
substitute information.
11
At trial, A testified that the defendant sexually abused her when the
defendant’s wife was at church on Sundays.
12
A was five years old at the time the years of sexual abuse by her
grandfather started.
13
The defendant argues that this court should overrule State v. Anwar
S., supra, 141 Conn. App. 355. It is this court’s policy that we cannot overrule
a decision made by another panel of this court absent en banc consideration.
In re Zoey H., 183 Conn. App. 327, 340 n.5, 192 A.3d 522, cert. denied, 330
Conn. 906, 192 A.3d 425 (2018). Although the defendant filed a motion for
en banc consideration of this appeal, it was denied on April 18, 2018. There-
fore, we decline the defendant’s request to revisit our precedent.
In addition, we note that the defendant failed to alert the court to the
subsequent procedural history of Anwar S. His brief omitted reference to
our Supreme Court’s denial of certification. When asked at oral argument,
the defendant stated that the Manual of Style for the Connecticut Courts is
silent on the issue, and, therefore, he follows the Bluebook system of citation.
He then stated that the Bluebook system of citation permits a litigant to
omit denials of certiorari for decisions that are over two years old. The
defendant is incorrect. First, our Manual of Style for the Connecticut Courts
requires that the subsequent history of an opinion be provided in a case’s
initial citation. In addition, Bluebook Rule 10.7 permits authors to ‘‘omit
denials of certiorari or denials of similar discretionary appeals, unless the
decision is less than two years old or the denial is particularly relevant.’’
(Emphasis added.) In a claim requesting the court to revisit its precedent, a
prior denial of certification by our Supreme Court is indisputably particularly
relevant and, therefore, should have been included in the citation.
14
In both Anwar S. and the present case, expert witnesses testified that
the diseases were most commonly transmitted through sexual contact. The
defendant attempts to distinguish his case from Anwar S. He argues that,
‘‘[u]nlike chlamydia, which is almost exclusively passed through sexual
contact, [trichomonas vaginalis] has been shown to pass through nonsexual
means, although uncommonly, rendering its relevance much lower.’’ How-
ever, in Anwar S., this court noted that chlamydia can be transmitted through
nonsexual means as well. Yet, this court still determined that evidence of
the diagnosis was relevant. This court acknowledged that the expert witness
testified that ‘‘chlamydia can be contracted in utero as well as through
sexual contact, but that [the victim’s] infection was unlikely to have resulted
from the birth process, as those infections are usually discovered within
the first three years of the child’s life and [the victim] was twelve years old
at the time of her examination.’’ State v. Anwar S., supra, 141 Conn. App.
359 n.3. Similarly, in the present case, Dr. Moles addressed the possibility
of transmitting trichomonas vaginalis through nonsexual means. She testi-
fied that there have been reports about trichomonas vaginalis being transmit-
ted when mothers give birth to their children, but that even if a child is
initially infected, the infection clears within the first year of the child’s life.
Therefore, we fail to discern any meaningful factual distinction between
these cases.
15
A reported that ‘‘no one else had ever touched her like this.’’
16
The defendant, in support of his argument that the court should have
precluded evidence of the text messages under Practice Book § 40-5, cites
several alibi witness cases. See State v. Tutson, 278 Conn. 715, 722, 899
A.2d 598 (2006); State v. Sanchez, 200 Conn. 721, 513 A.2d 653 (1986); State
v. Boucino, 199 Conn. 207, 506 A.2d 125 (1986); State v. Salters, 89 Conn.
App. 221, 872 A.2d 933, cert. denied, 274 Conn. 914, 879 A.2d 893 (2005).
For a number of reasons, these cases are unpersuasive. Most significantly,
an undisclosed alibi witness raises more concern regarding prejudice to the
opposing party, resulting from the late disclosure, than the text message
evidence in the present case. Late disclosure of an alibi witness prejudices
the opposing party—namely, the state—by preventing it from interviewing
and investigating the witness, his or her testimony, and any other potential
witnesses who might have knowledge to corroborate the alibi witness’ testi-
mony. See State v. Tutson, supra, 278 Conn. 745.
Concerns of such prejudice do not exist in the present case. The defendant
conceded that he sent the text messages to A’s mother. Therefore, he knew
that his text messages existed. In addition, unlike with evidence of an alibi
witness, there is no apparent reason that the defendant would have needed
to investigate or interview anyone else regarding the text messages that he
personally had sent. Any explanation about the purpose or meaning of the
text messages necessarily would have come from the defendant, the author
and sender of the text messages. The defendant had the opportunity to
testify as to his reason for sending the text messages. When the defendant
testified, he attempted to explain the early December text messages by
stating that he wanted to give A’s mother money to buy gifts for Christmas.
Moreover, the court delayed A’s mother’s testimony until the next day ‘‘in
fairness . . . so everybody could digest the content’’ of the text messages.
This delay prevented prejudice to the defendant because the additional time
enabled the defendant to prepare to cross-examine A’s mother regarding
the text messages. Thus, the concerns underlying the court’s exclusion of
the alibi witnesses in the cases cited by the defendant, under Practice Book
§ 40-5, were not present in this case.
17
Practice Book § 40-5 provides in relevant part: ‘‘If a party fails to comply
with disclosure as required under these rules, the opposing party may move
the judicial authority for an appropriate order. The judicial authority hearing
such a motion may enter such orders and time limitations as it deems
appropriate, including, without limitation, one or more of the following . . .
(2) Granting the moving party additional time or a continuance . . . [or]
(4) Prohibiting the noncomplying party from introducing specified evidence
. . . .’’ In determining what sanction is appropriate under Practice Book
§ 40-5, a trial court should ‘‘consider the reason why disclosure was not
made, the extent of prejudice, if any, to the opposing party, the feasibility
of rectifying that prejudice by a continuance, and any other relevant circum-
stances.’’ (Internal quotation marks omitted.) State v. Cooke, 134 Conn. App.
573, 578–79, 39 A.3d 1178, cert. denied, 305 Conn. 903, 43 A.3d 662 (2012).