State v. DeJesus ( 2019 )

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STATE OF CONNECTICUT v. OSVALDO DEJESUS
(AC 41151)
DiPentima, C. J., and Keller and Bright, Js.
Syllabus
Convicted, after a jury trial, of the crimes of sexual assault in the fourth
degree and risk of injury to a child in connection with his sexual abuse
of the minor victim, the defendant appealed to this court. Held:
1. The defendant could not prevail on his unpreserved claim that the trial
court improperly admitted into evidence expert testimony from M, an
expert in forensic interviewing, regarding how child victims of sexual
abuse behave and how they disclose their abuse, which he claimed
was irrelevant and unduly prejudicial and constituted impermissible
vouching for the victim’s credibility:
a. The trial court did not commit plain error in admitting M’s expert
testimony; although M testified generally about the nature and purpose
of forensic interviews, the general characteristics of sexually abused
children, the different types of disclosures and several factors that may
trigger those types of disclosures, M did not opine that the victim exhib-
ited any of the characteristics she discussed but, rather, acknowledged
the limitations of her testimony on cross-examination, noting that she
did not know anything about the victim or her forensic interview, and
stated that she was not offering any opinion about the victim’s disclosure
process or the truthfulness of any of her disclosures, and, therefore,
M’s testimony was consistent with testimony that our Supreme Court,
in State v. Taylor G. (315 Conn. 734) and State v. Spigarolo (210 Conn.
359), previously has determined to be admissible.
b. This court declined to exercise its supervisory authority over the
administration of justice to preclude, as a matter of law, the admission
of expert testimony on the characteristics of children who report sexual
abuse, as our Supreme Court has clearly held that such testimony is
admissible, and this court could not use its supervisory authority to
overrule binding Supreme Court precedent.
2. The defendant’s claim that the trial court abused its discretion during a
pretrial hearing by refusing to permit him to ask the victim leading
questions on direct examination was unavailing; there was nothing in
the record to suggest that the victim’s testimony would have been differ-
ent had defense counsel been permitted to ask her leading questions,
and, therefore, as the defendant conceded during oral argument before
this court, he could not establish that the trial court’s alleged error
caused him harm.
Argued September 5—officially released November 12, 2019
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of sexual assault in the
first degree and sexual assault in the fourth degree, and
with four counts of the crime of risk of injury to a child,
brought to the Superior Court in the judicial district of
New Haven and tried to the jury before Alander, J.;
verdict and judgment of guilty of two counts of sexual
assault in the fourth degree and four counts of risk of
injury to a child, from which the defendant appealed
to this court. Affirmed.
Norman A. Pattis, for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Patrick Griffin,
state’s attorney, and Maxine Wilensky, senior assistant
state’s attorney, for the appellee (state).
Opinion
BRIGHT, J. The defendant, Osvaldo DeJesus, appeals
from the judgment of conviction, rendered after a jury
trial, of four counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2), and two counts of
sexual assault in the fourth degree in violation of Gen-
eral Statutes § 53a-73a (a) (1) (A).1 On appeal, the defen-
dant claims that the trial court (1) improperly admitted
into evidence expert testimony that amounted to imper-
missible bolstering of the victim’s credibility and (2)
erred in concluding, during a pretrial hearing, that the
victim was not an adverse party, thereby precluding
defense counsel from asking the victim leading ques-
tions on direct examination. We affirm the judgment
of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of this appeal. The defendant and the victim’s
mother, M,2 were in a relationship when, in 2003 or
2004, the defendant moved into the apartment M shared
with her two daughters, D and the victim. At the time,
the victim was two or three years old. Thereafter, the
defendant, M, and her daughters moved to a condomin-
ium. In 2005, M gave birth to the defendant’s son, S,
and the five of them shared the condominium.
In 2008, when the victim was eight years old, the
defendant began a pattern of sexually assaulting her in
the bedroom the victim shared with D. Over the course
of the next two years, the defendant sexually abused
the victim both in and out of the home. When the victim
was ten years old, she began menstruating, prompting
the defendant to stop the sexual abuse. In 2013, the
defendant and M ended their relationship and, at M’s
insistence, the defendant moved out of the condomin-
ium. Because S continued to live with M, the defendant
would stop by the condominium unannounced and
would stay there until S went to sleep. The victim with-
held disclosure of the abuses she had suffered until she
was thirteen years old, at which point she confided in
her cousin, C. Unable to articulate verbally what had
happened, the victim disclosed the news to C by way
of a text message with the expectation that C would
keep it a secret. Several days later, the victim’s aunt
discovered the text message and relayed the informa-
tion to M. That night, M took the victim to the police
station where she gave videotaped and written state-
ments concerning the defendant’s sexual abuse. Three
days later, the victim went to the child sexual abuse
clinic at Yale New Haven Hospital where she had a
videotaped forensic interview with Rebecha Sullivan,
a licensed clinical social worker.
On the basis of the victim’s complaint, the defendant
was charged with two counts of sexual assault in the
first degree, four counts of risk of injury to a child,
and two counts of sexual assault in the fourth degree.
Following a jury trial, the defendant was convicted of
all four counts of risk of injury to a child and both
counts of sexual assault in the fourth degree. He was
acquitted of the remaining charges. See footnote 1 of
this opinion. The court imposed a total effective sen-
tence of thirty-two years of incarceration, execution
suspended after twenty years, with fifteen years of pro-
bation and ten years of sex offender registration. This
appeal followed. Additional facts will be set forth as
necessary.
I
The defendant claims for the first time on appeal that
the trial court improperly admitted into evidence expert
testimony regarding how child victims of sexual abuse
behave and how they disclose their abuse. More specifi-
cally, the defendant argues that the court erred by
admitting the testimony of Donna Meyer, the state’s
expert in forensic interviewing, despite the fact that
she had never examined the victim. The defendant con-
cedes that he did not preserve this claim at trial, arguing
instead that this court should reverse the judgment
of conviction under the plain error doctrine. In the
alternative, the defendant asks that we exercise our
supervisory authority over the administration of justice
to preclude the admission of testimony from forensic
interviewers on the characteristics of children who dis-
close sexual abuse and the different manners in which
they disclose such abuse. According to the defendant,
such evidence is irrelevant to whether a particular com-
plainant is telling the truth, is unduly prejudicial
because it suggests that all children who disclose sexual
abuse were, in fact, abused, and constitutes improper
‘‘vouching’’ for the complainant’s credibility. Because
our Supreme Court has made clear that such testimony
is admissible, we reject the defendant’s arguments.
The following additional facts are relevant to our
resolution of the defendant’s claim. The state called
Meyer as an expert witness in forensic interviewing to
discuss generally forensic interviewing and the dynam-
ics of child sexual abuse victims. Meyer testified at
length as to what forensic interviews entail,3 the differ-
ent types of disclosures,4 what may cause a delayed
disclosure,5 and the effects domestic violence in the
home has on child sexual assault victims.6 She also
discussed how a victim’s relationship with his or her
abuser can impact the delay in disclosure, stating that
‘‘the closer the relationship, the longer the delay in
general, that’s what research has shown.’’ Meyer went
on to discuss the effect that sexual abuse has on a
victim’s sleep, testifying that ‘‘[e]very child is unique,
so it depends on a lot of different things, but often times
children who have been sexually abused will experience
nightmares, some children may experience bed wetting,
other children may—may experience inability to fall
asleep . . . .’’ On cross-examination, Meyer agreed
that she knew nothing about the victim or her forensic
interview, and was not opining on the disclosure pro-
cess in this case. She further confirmed that she was
not opining as to whether a particular disclosure was
truthful.
A
As previously noted in this opinion, the defendant
did not object to Meyer’s testimony, and, therefore, he
seeks reversal under the plain error doctrine. Our plain
error doctrine is well established. ‘‘The plain error doc-
trine is based on Practice Book § 60-5, which provides in
relevant part: The court shall not be bound to consider
a claim unless it was distinctly raised at the trial or
arose subsequent to the trial. The court may in the
interests of justice notice plain error not brought to the
attention of the trial court. . . . The plain error doc-
trine is reserved for truly extraordinary situations [in
which] the existence of the error is so obvious that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings.’’ (Internal quotation
marks omitted.) Cator v. Commissioner of Correction,
181 Conn. App. 167, 177 n.3, 185 A.3d 601, cert. denied,
329 Conn. 902, 184 A.3d 1214 (2018).
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily discernable on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . [I]n addi-
tion to examining the patent nature of the error, the
reviewing court must examine that error for the griev-
ousness of its consequences in order to determine
whether reversal under the plain error doctrine is appro-
priate. . . . [An appellant] cannot prevail under [the
plain error doctrine] . . . unless he demonstrates that
the claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) State v. Sanchez, 308 Conn.
64, 77, 60 A.3d 271 (2013).
The defendant’s contention that Meyer’s testimony
regarding the characteristics of children who disclose
sexual abuse and the manner in which they disclose
the abuse was irrelevant and unduly prejudicial, and
constituted impermissible vouching for the credibility
of the victim is wholly inconsistent with the decisions
of our Supreme Court. In State v. Spigarolo, 210 Conn.
359, 378, 556 A.2d 112, cert. denied, 493 U.S. 933, 110
S. Ct. 322, 107 L. Ed. 2d 312 (1989), our Supreme Court
addressed this exact issue, noting the value of expert
testimony because the nuances of child sexual abuse
trauma are beyond the average person’s understanding.
The court stated: ‘‘Consequently, expert testimony that
minor victims typically fail to provide complete or con-
sistent disclosures of the alleged sexual abuse is of
valuable assistance to the trier in assessing the minor
victim’s credibility. As the Oregon Supreme Court
stated: It would be useful to the jury to know that . . .
many child victims are ambivalent about the forceful-
ness with which they want to pursue the complaint,
and it is not uncommon for them to deny the act ever
happened. Explaining this superficially bizarre behavior
by identifying its emotional antecedents could help the
jury better assess the [witness’] credibility.’’ (Internal
quotation marks omitted.) Id. The court concluded that
such expert testimony did not usurp the jury’s function
of assessing witness credibility. The court held that,
‘‘where defense counsel has sought to impeach the cred-
ibility of a complaining minor witness in a sexual abuse
case, based on inconsistency, incompleteness or recan-
tation of the victim’s disclosures pertaining to the
alleged incidents, the state may offer expert testimony
that seeks to demonstrate or explain in general terms
the behavioral characteristics of child abuse victims in
disclosing alleged incidents.’’ Id., 380.
In State v. Taylor G., 315 Conn. 734, 765, 110 A.3d
338 (2015), our Supreme Court relied on Spigarolo to
reach the same conclusion, holding that the trial court
did not err when it allowed expert witness testimony
on the characteristics of child sexual abuse victims. In
Taylor G., the state called its expert witness, a forensic
interviewer at Yale New Haven Hospital’s child sexual
abuse clinic, to show the jury the video of her forensic
interview with the complainant after she testified about
the general characteristics of sexually abused children.
Id., 755–57. The defendant filed a motion in limine chal-
lenging the admissibility of the state’s expert witness’
testimony, which the trial court denied. Id., 755. After
the jury returned a guilty verdict, but, prior to sentenc-
ing, the defendant filed a motion for a new trial, arguing
that the state’s witness improperly vouched for the com-
plainant’s credibility through testimony that our
Supreme Court had deemed inadmissible in State v.
Favoccia, 306 Conn. 770, 51 A.3d 1002 (2012).7 State
v. Taylor G., supra, 758. In affirming the judgment of
conviction, our Supreme Court reiterated that expert
testimony regarding the general characteristics of child
sexual assault victims is admissible. Id., 765. The court
stated: ‘‘The purpose of expert testimony regarding the
general characteristics of sexually abused children is
to provide information that will assist the jury in evalu-
ating the credibility of the complainant. As we stated
in Spigarolo, this type ‘of expert testimony is admissible
because the consequences of the unique trauma experi-
enced by [child] victims of sexual abuse are matters
beyond the understanding of the average person. . . .
Consequently, expert testimony . . . is of valuable
assistance to the trier in assessing the . . . victim’s
credibility.’ . . . State v. Spigarolo, supra, 210 Conn.
378. It is thus to be expected that a complainant will
demonstrate behavior similar or identical to the behav-
ior of other children who have been sexually abused.
Indeed, if that were not the case, expert testimony on
the subject would have no relevance. More significantly,
[the state’s expert witness], unlike the expert in Favoc-
cia, never drew a comparison between [the victim] and
the characteristics she described as typical of child
sexual abuse victims generally. Accordingly we con-
clude that the defendant’s claim must fail.’’ State v.
Taylor G., supra, 765.
Applying these principles to the present case, we
conclude that the trial court did not commit plain error
in admitting Meyer’s expert testimony. Spigarolo and
Taylor G. clearly allow for the use of the type of testi-
mony at issue here. As was true of the expert in Taylor
G., in this case, Meyer testified generally about the
nature and purpose of forensic interviews, the general
characteristics of sexually abused children, the differ-
ent types of disclosures, and several factors that may
trigger those types of disclosures. At no point in Meyer’s
testimony did she opine that the victim exhibited any
of the characteristics she discussed. To the contrary,
Meyer acknowledged the limitations of her testimony
on cross-examination, noting that she did not know
anything about the victim or her forensic interview. She
further testified that she was not offering any opinion
about the victim’s disclosure process or the truthfulness
of any of her disclosures. Given that Meyer’s testimony
was in line with what our Supreme Court determined
to be permissible in Spigarolo and Taylor G., the court
did not err, let alone commit plain error, in allowing
her testimony. Accordingly, the defendant’s claim fails.
B
In the alternative, the defendant asks this court to
exercise its supervisory authority over the administra-
tion of justice to preclude, as a matter of law, the admis-
sion of expert testimony on the characteristics of chil-
dren who report sexual abuse. As noted in part I A of
this opinion, our Supreme Court clearly has held that
such testimony is admissible. It is well established that,
as an intermediate appellate court, we are required to
follow the decisions of our Supreme Court. See Stuart
v. Stuart, 297 Conn. 26, 45–46, 996 A.2d 259 (2010) (‘‘it
is manifest to our hierarchical judicial system that [the
Supreme Court] has the final say on matters of Connect-
icut law and that the Appellate Court . . . [is] bound
by [its] precedent’’); State v. Smith, 107 Conn. App. 666,
684–85, 946 A.2d 319 (‘‘[W]e are not at liberty to overrule
or discard the decisions of our Supreme Court but are
bound by them. . . . [I]t is not within our province to
reevaluate or replace those decisions.’’ [Internal quota-
tion marks omitted.]), cert. denied, 288 Conn. 902, 952
A.2d 811 (2008). Consequently, we are unable to use
our supervisory authority effectively to overrule binding
Supreme Court precedent. We, thus, decline the defen-
dant’s invitation that we do so.
II
The defendant also claims that during a pretrial hear-
ing, the trial court abused its discretion by refusing
to permit him to ask the victim leading questions on
direct examination.
The following additional facts are relevant to our
resolution of the defendant’s second claim on appeal.
On May 9, 2017, the defendant called the victim to testify
at a pretrial hearing regarding his motion to suppress
portions of the victim’s forensic interview as inadmissi-
ble hearsay.8 During the defendant’s direct examination
of the victim, he asked her a series of leading questions.
The state objected on the basis that the defendant
improperly was leading the witness on direct examina-
tion, to which the defendant responded that ‘‘under [§]
6-8 (b) (1) [of the Connecticut Code of Evidence], I’m
asking questions of a party that is aligned as an adverse
party . . . .’’ The court disagreed with the contention
that the victim was an adverse party and sustained the
state’s objection, but noted that if the victim became a
hostile witness then it would allow leading questions.
The defendant did not claim, thereafter, that the victim
was a hostile witness.
We begin with the applicable standard of review. ‘‘[I]n
order to establish reversible error on an evidentiary
impropriety, the defendant must prove both an abuse
of discretion and a harm that resulted from such abuse.
. . . This requires that the defendant demonstrate that
it is more probable than not that the erroneous action
of the court affected the result. . . .
‘‘It is well settled that, absent structural error, the
mere fact that a trial court rendered an improper ruling
does not entitle the party challenging that ruling to
obtain a new trial. An improper ruling must also be
harmful to justify such relief.’’ (Emphasis added; inter-
nal quotation marks omitted.) State v. Baker, 168 Conn.
App. 19, 36, 145 A.3d 955, cert. denied, 323 Conn. 932,
150 A.3d 232 (2016).
We need not address the defendant’s novel claim that
a complaining witness in a criminal case should be
considered an adverse party under § 6-8 of the Connecti-
cut Code of Evidence because the defendant essentially
has conceded that he cannot demonstrate harm
resulting from the court’s alleged abuse of discretion.9
Having reviewed the record, we agree that there is noth-
ing that suggests that the victim’s testimony would have
been different had defense counsel been permitted to
ask her leading questions. Because the defendant can-
not establish that the court’s alleged error caused him
harm, his claim necessarily fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also was charged with two counts of sexual assault in
the first degree in violation of General Statutes § 53a-70 (a) (1). The jury
found the defendant not guilty of those charges.
2
In accordance with our policy of protecting the privacy interests of
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.
3
At trial, Meyer testified that a forensic interview ‘‘is a fact-finding inter-
view that’s used to gather information from the child in a supportive, nonlead-
ing, developmentally appropriate way . . . that all the team members need
so that . . . as a forensic interviewer I need to not just . . . get one piece
of information, but information that all members of the [multidisciplinary
investigation team] would be looking for and needing to minimize that
secondary need for interviews.’’
4
Meyer testified as follows: ‘‘[T]here’s three different ways; it’s accidental,
purposeful and prompted. So, the accidental is the one I just mentioned
where it comes out by accident and you see those most often with young
children who . . . you know, may not be aware of it, say something during
bathing, see it with the mom looking at teen’s phone, may see it that way,
or somebody dropping a note at school. Those are all accident. The purpose-
ful is when that child has made a conscious decision that, for whatever
reason, they can no longer [withhold], and they choose to report it to
somebody who can help stop it. And then the third, and often we see most,
is a prompted, and that is where, you know, the child, for some reason,
whether it be that they told a friend and the friend told a teacher, or . . .
news came out on TV about a sexual assault and a parent questioned them
or something, so it was prompted by another event, but it was not their
initial intent to come out and talk about it.’’
5
Meyer testified as follows: ‘‘There are several reasons why a child may
or may not disclose. Some of the reasons that a child may disclose [are]
that . . . it becomes safe for them because the perpetrator or the person
who has been doing the abuse is no longer in the house; it may be that they
. . . are at an age—or their sibling is of an age when they first started
getting abused, and they want to protect that child . . . [or] it may be
because they just can no longer take it. There are lots of different ways
disclosures come out and, based on how they come out, there would be
reasons as to why they . . . delayed or disclosed.’’
6
Meyer testified that ‘‘[d]omestic violence in a home is a strong deterrent
because . . . sexual abuse is often about control and in domestic violence
there is always somebody who is in control. And, so, the child may really
fear that, you know, if they do tell that some of the threats may be carried
out; they’ve seen violence in the home. . . . Battering homes are a huge
deterrent for children telling out of fear.’’
7
In Favoccia, the court determined that the expert witness’ testimony at
issue did amount to impermissible vouching, concluding that, ‘‘although
expert witnesses may testify about the general behavioral characteristics
of sexual abuse victims, they cross the line into impermissible vouching
and ultimate issue testimony when they opine that a particular complainant
has exhibited those general behavioral characteristics.’’ State v. Favoccia,
supra, 306 Conn. 780.
8
The defendant argued that the victim’s testimony during her forensic
interview was inadmissible hearsay not recognized by the medical diagnosis
and treatment exception under § 8-3 (5) of the Connecticut Code of Evidence.
In support of his motion, the defendant sought to establish, through the
victim’s testimony, that she did not attend the interview for medical diagnosis
or treatment. ‘‘The admissibility of statements offered under the medical
diagnosis and treatment exception to the hearsay rule turns on whether the
declarant was seeking medical diagnosis or treatment, and the statements
are reasonably pertinent to achieving those ends.’’ (Internal quotation marks
omitted.) State v. Estrella J.C., 169 Conn. App. 56, 72, 148 A.3d 594 (2016).
9
At the close of oral argument before this court, counsel for the defendant
stated: ‘‘I have to concede . . . [the state’s] got me on the prejudice prong.
I don’t think I can demonstrate that here. I don’t want to concede my
argument, but I think the record is what it is here.’’