State v. Alvarez ( 2021 )

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STATE OF CONNECTICUT v.
ULYSES R. ALVAREZ
(AC 43506)
Bright, C. J., and Suarez and Sullivan, Js.
Syllabus
Convicted of two counts of the crime of sexual assault in the fourth degree
and two counts of the crime of risk of injury to a child, the defendant
appealed to this court. The defendant’s conviction stemmed from his
alleged sexual abuse of the minor victim, K, who was a resident of the
rehabilitation facility where the defendant was employed. Before trial,
the court granted the state’s motion to allow the introduction of
uncharged misconduct evidence, specifically, evidence regarding the
defendant’s sexual abuse of A, another resident of the rehabilitation
facility, and P, a woman the defendant allegedly had assaulted while he
was employed as a police officer. Prior to trial, both the state and
defense counsel subpoenaed records pertaining to K and A from, inter
alia, the Department of Children and Families and various mental health
facilities that had treated K and A. The court conducted an in camera
review of these records for exculpatory material and released certain
unspecified records to the parties; the rest of the records remained
under seal. Held:
1. The trial court abused its discretion in keeping certain confidential records
under seal and by not taking the steps required by State v. Esposito
(192 Conn. 166) to disclose those records to the parties: several of the
sealed records not disclosed to the defendant contained references to
A’s credibility and capacity for truthfulness, and the defendant did not
have access to this information about A from another source; moreover,
the court’s failure to disclose these records was not harmless, as,
although the state relied on evidence other than A’s testimony to corrobo-
rate K’s testimony, there was little physical evidence that corroborated
K’s allegations, A was the only witness who testified at trial to seeing
the defendant act in an inappropriate manner toward K, the prosecutor
focused a significant portion of her closing argument on A’s testimony,
and defense counsel’s probe of A’s credibility during cross-examination
might not have been adequate in light of the court’s failure to disclose
the records; accordingly, the defendant was entitled to a new trial at
which A could testify only if she waived her privilege to the relevant
sealed records.
2. The trial court erred in admitting uncharged misconduct evidence relating
to P as propensity evidence pursuant to § 4-5 (b) of the Connecticut
Code of Evidence; the defendant’s uncharged misconduct toward P
was not sufficiently similar to the charged conduct involving K to be
admissible at trial, as the frequency and the severity of the assaults
were different, with the defendant’s conduct toward K occurring multiple
times over a period of two months and his interaction with P happening
once, the position of authority he held over K, who was a resident at
a facility where the defendant was an employee, and P, who interacted
with the defendant in her own home, was different, and the locations
of the assaults were materially different, with the defendant’s assaults
on K occurring in a facility with a risk of detection and his alleged
assault of P occurring while they were alone in her home, and the few
similarities between the charged and uncharged misconduct provided
an insufficient basis to render the uncharged conduct admissible.
Argued September 7—officially released December 14, 2021
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of sexual assault in the
fourth degree and risk of injury to a child, brought to
the Superior Court in the judicial district of Litchfield,
where the court, Wu, J., granted the state’s motion to
introduce uncharged misconduct evidence and denied
the defendant’s motion in limine to introduce certain
evidence; thereafter, the matter was tried to the jury
before Wu, J.; verdict and judgment of guilty, from
which the defendant appealed to this court. Reversed;
new trial.
Norman A. Pattis, for the appellant (defendant).
Samantha L. Oden, former deputy assistant state’s
attorney, with whom, on the brief, were Dawn Gallo,
state’s attorney, and Jessica Gouveia, deputy assistant
state’s attorney, for the appellee (state).
Opinion
BRIGHT, C. J. The defendant, Ulyses R. Alvarez,
appeals from the judgment of conviction, rendered by
the court following a jury trial, of sexual assault in the
fourth degree in violation of General Statutes § 53a-73a
(a) (1) (E) and (8), and risk of injury to a child in
violation of General Statutes § 53-21 (a) (1) and (2). On
appeal, the defendant claims that the trial court abused
its discretion by (1) allowing the state to introduce
evidence of uncharged misconduct, (2) withholding rel-
evant sealed records from the defendant, and (3) bar-
ring defense counsel from inquiring into the sexual his-
tory of the complaining witness, K.1 We agree with the
defendant’s second claim and, accordingly, reverse the
judgment of the trial court and remand the case for a
new trial. We also address the defendant’s first claim
because the issues underlying the claim are likely to
arise on remand.2
The following facts, which the jury heard, and proce-
dural history are relevant to our resolution of the defen-
dant’s claims. From January to April, 2017, K, a fifteen
year old girl, resided at Touchstone, a residential reha-
bilitation facility for at risk girls. During this same time
period, the defendant was employed by Touchstone as
an adolescent development specialist and was responsi-
ble for the general welfare and care of Touchstone’s
residents.
At trial, K testified to the following. In February, 2017,
the defendant began acting inappropriately toward her.
During her first week at Touchstone, the defendant
looked K up and down, an act she described as ‘‘how
guys normally check females out.’’ A few days later, he
blew K a kiss when the two passed on the stairs.
A couple of weeks later, when K was by herself in
one of Touchstone’s common rooms and the defendant
was sitting in a chair facing the entryway to the room,
he told K to masturbate in front of him. K did so, and,
while she was masturbating, the defendant used signals
to direct her movements. If his legs were up and resting
on the wall, that was a sign that K should continue
masturbating. If he lowered his legs, that indicated to
K to stop. Additionally, when the defendant placed his
hand inside of the cuff of his pants, that meant that he
wanted K ‘‘to go inside [of her] underwear,’’ and when
he rubbed the top of his pants, that indicated to K to
masturbate ‘‘outside of [her] pants.’’
K testified that the defendant had her masturbate for
him at least nine more times. During some of those
incidents, he showed K pictures on his phone of sexual
positions and asked her to pose similarly. On one occa-
sion, the defendant gestured for K to masturbate and
then wipe her vaginal fluid on his hand. K complied,
and the defendant licked his hand. On two occasions,
she masturbated for him in her bedroom and without
any pants on.
K further testified that the defendant’s actions toward
her did not stop at masturbation. He commented on
her body, told her that she had a ‘‘nice butt,’’ and men-
tioned that he wanted her to wear leggings around him.
He also showed K a picture of his naked back and
back tattoo and made sexual gestures to her, including
putting his index finger and middle finger in a ‘‘V’’ shape
underneath his mouth and then sticking his tongue
through the ‘‘V,’’ which K understood as a reference to
oral sex. At one point, the defendant gave K a note
telling her that he wanted to have sex with her. He also
showed K notes in his phone that said, ‘‘I want to fuck
you so bad’’ and ‘‘lick, lick.’’
K testified that, on one occasion, the defendant took
her and some other residents to Walmart. During the
ride, he held K’s hand. After the group returned to
Touchstone, the defendant reached for his backpack,
which was at K’s feet, and, in the process, slid his hand
along K’s inner thighs, almost up to her vagina. Then,
when K got out of the car, he asked her to put a bag
into his car. As she did so, he touched and gripped her
buttocks.
A, another Touchstone resident, testified at the defen-
dant’s trial. During her testimony, A stated that K told
her that the defendant asked K to masturbate for him
multiple times and generally had been acting inappro-
priately toward her. A further stated that she saw the
defendant and K holding hands during the Walmart trip
and previously had seen the defendant blow kisses at
K. A also testified that the defendant had behaved inap-
propriately toward her. According to A, the defendant
told her that she had the body of a twenty-four year
old, repeatedly winked at her, and made sexual gestures
at her. A further stated that the defendant often had an
erection when he interacted with her and once said
that he wished she could help him with his erection. A
also testified that the defendant told her that he wanted
to have sex with her and that he wanted to see her
outside of the program.
On February 14, 2017, a Touchstone resident reported
the defendant to a Touchstone employee for behaving
inappropriately toward K, and an investigation was initi-
ated, but K denied the allegations. Then, on April 12,
2017, when K was in the dining hall, she saw the defen-
dant looking at another resident ‘‘the same way he
looked at [her].’’ K became upset and started yelling at
him. One of Touchstone’s supervisors, Kristen Fra-
casso-Kersten, heard the noise and came downstairs to
find K screaming, crying, and hyperventilating. Fra-
casso-Kersten then sent K to speak with Christina Borel,
Touchstone’s clinical director. While talking with Borel,
K disclosed what the defendant had done to her. Fra-
casso-Kersten later reviewed Touchstone’s surveillance
video and saw footage of the defendant signaling with
his legs in the manner K had described.
At trial, Detective Paul Lukienchuk of the Connecti-
cut State Police testified about his efforts to serve a
search warrant on the defendant. The warrant author-
ized Detective Lukienchuk to collect the defendant’s
phone. When he attempted to execute the warrant, the
defendant tried to hide his cell phone by slipping it into
his mother’s purse. Detective Lukienchuk eventually
was able to obtain the phone and review its contents.
On the phone, he found pictures of the defendant’s back
and back tattoos, a picture of the defendant making
the ‘‘V’’ sign that K had described, and a message con-
taining the words ‘‘lick, lick.’’
On the basis of this evidence, a jury found the defen-
dant guilty of two counts of sexual assault in the fourth
degree and two counts of risk of injury to a child. The
court accepted the jury’s verdict and sentenced the
defendant to a total effective term of imprisonment of
nineteen years, execution suspended after five years,
with twenty-five years of probation and a $1000 fine.
Additional facts and procedural history will be set forth
below as necessary.
I
The defendant claims that the court abused its discre-
tion by failing to disclose certain confidential records
related to K and A, in violation of his constitutional
right to confrontation.3 We agree.
The following additional facts and procedural history
are necessary to our resolution of this claim. Prior to
trial, on the basis of an agreement between the parties,
the state subpoenaed records related to K and A from
the Department of Children and Families (department)
and juvenile court, and defense counsel subpoenaed
records from several hospitals and mental health facili-
ties that had treated K and A. These records were pro-
vided to the court under seal, and the court reviewed
the records in camera. Certain unspecified department
records were then released to the parties.4 The rest of
the records, none of which were released, remained
under seal. These sealed records were later made part of
the appellate record, and we, at the defendant’s request,
conducted our own in camera review of the sealed
records to determine whether they contain information
related to the credibility and truthfulness of K and A.
‘‘A criminal defendant has a constitutional right to
cross-examine the state’s witnesses, which may include
impeaching or discrediting them by attempting to reveal
to the jury the witnesses’ biases, prejudices or ulterior
motives, or facts bearing on the witnesses’ reliability,
credibility, or sense of perception.’’ State v. Slimskey,
257 Conn. 842, 853, 779 A.2d 723 (2001). Thus, in certain
instances, a witness’ right to keep certain records confi-
dential must give way to a defendant’s constitutional
right to confrontation. See id., 853–84. Our Supreme
Court has set forth a procedure to be used by trial courts
when these two rights potentially come into conflict.
‘‘If, for the purposes of cross-examination, a defendant
believes that certain privileged records would disclose
information especially probative of a witness’ ability to
comprehend, know or correctly relate the truth, he may,
out of the jury’s presence, attempt to make a prelimi-
nary showing that there is a reasonable ground to
believe that the failure to produce the records would
likely impair his right to impeach the witness. . . . If
in the trial court’s judgment the defendant successfully
makes this showing, the state must then obtain the
witness’ permission for the court to inspect the records
in camera. . . . Upon inspecting the records in camera,
the trial court must determine whether the records are
especially probative of the witness’ capacity to relate
the truth or to observe, recollect and narrate relevant
occurrences. . . . If the court discovers no probative
and impeaching material, the entire record of the pro-
ceeding must be sealed and preserved for possible
appellate review.’’ (Internal quotation marks omitted.)
State v. McMurray, 217 Conn. 243, 257, 585 A.2d 677(1991); see also State v. Esposito, 192 Conn. 166, 179–80,
471 A.2d 949 (1984) (setting forth procedure by which
confidential records can be disclosed to parties); but
see State v. Pierson, 201 Conn. 211, 228, 514 A.2d 724(1986) (modifying procedure established in Esposito).
Thereafter, on appeal, when so requested by the par-
ties, this court ‘‘has the responsibility to conduct its own
in camera review of the sealed records to determine
whether the trial court abused its discretion in refusing
to release those records to the defendant.’’ (Internal
quotation marks omitted.) State v. Gainey, 76 Conn.
App. 155, 158, 818 A.2d 859 (2003). ‘‘The linchpin of the
determination of the defendant’s access to the records
is whether they sufficiently disclose material especially
probative of the [witness’] ability to comprehend, know
and correctly relate the truth . . . so as to justify
breach of their confidentiality and disclosing them to
the defendant in order to protect his right of confronta-
tion.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d
829 (1983). The determination of a defendant’s access
to confidential records lies in the sound discretion of
the trial court, and we will not disturb that discretion
unless it is abused. See State v. McMurray, supra, 217
Conn. 257; see also State v. Slimskey, supra, 257 Conn.
856 (‘‘[a]ccess to confidential records should be left to
the discretion of the trial court which is better able to
assess the probative value of such evidence as it relates
to the particular case before it . . . and to weigh that
value against the interest in confidentiality of the
records’’ (internal quotation marks omitted)).
Following a thorough in camera review of the subject
records, we conclude that the court should have dis-
closed several of the sealed records to the parties.
Although none of the records contains any references
to K’s credibility or truthfulness, several records from
the Albert J. Solnit Children’s Center (Solnit records)
contain references to A’s credibility and capacity for
truthfulness. Specifically, these records contain infor-
mation that was highly relevant to an assessment of
whether A’s description of events involving the defen-
dant and K was truthful.5 Our review of the available
trial court record indicates that the Solnit records were
never disclosed to the defendant.6 Given that the infor-
mation contained in these records was clearly material
and relevant to A’s credibility and her ‘‘ ‘ability to com-
prehend, know or correctly relate the truth,’ ’’ these
records should have been disclosed to the parties and
the court abused its discretion in failing to do so. State
v. McMurray, supra, 217 Conn. 257.
We further conclude that the trial court’s failure to
disclose the relevant Solnit records was not harmless.
In cases in which a defendant’s constitutional right to
confrontation is infringed, the state must prove that the
trial court’s decision to deny the defendant access to
the sealed records was harmless beyond a reasonable
doubt. See State v. Slimskey, supra, 257 Conn. 859.
‘‘Whether such error is harmless . . . depends upon a
number of factors, such as the importance of the wit-
ness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony
of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.’’ (Internal
quotation marks omitted.) Id.First, after comparing the entirety of the department
records that are part of the trial court record with the
sealed Solnit records, we conclude that none of the
relevant impeachment material regarding A is included
in the disclosed department records.7 Consequently, the
defendant did not have access to this information about
A from another source.
Additionally, in the present case, the impeachment
material was particularly important because there was
little physical evidence that corroborated K’s allega-
tions, and A was the only witness who testified to seeing
the defendant act inappropriately toward K. As a result,
the prosecutor focused a significant part of her closing
argument on A’s testimony. She first argued that A cor-
roborated K’s testimony as to the defendant’s conduct
with K. She then argued that A’s testimony regarding
the defendant’s conduct toward her proved that the
defendant had the propensity or tendency ‘‘to engage
in the type of criminal sexual behavior with which he
is charged.’’ She then discussed the details of A’s allega-
tions and the similarity of the actions the defendant
took toward A and those he was charged with taking
toward K. Ultimately, the prosecutor relied on the per-
sonal similarities between A and K, and in their testi-
mony about the defendant’s conduct, to bolster each
witness’ credibility and to suggest that the jury could
infer the defendant’s guilt. As such, the defendant’s
guilt, or lack thereof, turned in significant part on A’s
credibility. If her testimony had been discredited by the
information in the Solnit records, we cannot conclude,
beyond a reasonable doubt, that the jury nevertheless
would have returned a guilty verdict. Further, although
defense counsel was able to probe A’s credibility during
cross-examination, we cannot conclude that such cross-
examination was adequate in light of the court’s failure
to disclose the Solnit records.
We acknowledge that the state relied on evidence
other than A’s testimony to corroborate K’s testimony.
For example, the contents of the defendant’s phone did
contain incriminating evidence that corroborated some
of K’s claims, including pictures of the defendant’s back
and back tattoos, a picture of the ‘‘V’’ gesture that K
described, and a text message containing the words
‘‘lick, lick.’’ That evidence, however, does not corrobo-
rate most of the acts to which K testified, including
the defendant’s alleged requests for her to masturbate.
Furthermore, Fracasso-Kersten’s testimony that Touch-
stone surveillance cameras captured images of the
defendant moving his legs up and down the wall, as K
said he did to signal her, corroborated K’s testimony,
but only to a limited extent. On the basis of the totality
of the evidence presented at trial, we cannot conclude
that the court’s error in not disclosing to the parties
the existence of the highly relevant Solnit records was
harmless beyond a reasonable doubt. See State v. Slim-
skey, supra, 257 Conn. 859–60 (error in not disclosing
records relevant to impeachment was not harmless
despite other evidence that corroborated some aspects
of victim’s testimony).
Accordingly, we conclude that the court abused its
discretion in keeping the relevant Solnit records under
seal and not taking the steps required under Esposito
to disclose those records to the parties. See State v.
Esposito, supra, 192 Conn. 179–80. The judgment of
conviction is reversed and the case is remanded for a
new trial, at which the relevant Solnit records must be
disclosed, contingent on A’s waiver of any privilege.
See State v. Olah, 60 Conn. App. 350, 355, 759 A.2d 548(2000). If A refuses to waive the privilege, she cannot
testify at a new trial. See id.II
The defendant also claims that the court abused its
discretion by allowing the state to introduce evidence of
certain uncharged misconduct as propensity evidence
pursuant to § 4-5 (b) of the Connecticut Code of Evi-
dence8 because the alleged misconduct was qualita-
tively different from the charged conduct. We agree.9
The following additional facts and procedural history
are relevant to the defendant’s claim. On May 28, 2019,
pursuant to § 4-5 (b) of the Connecticut Code of Evi-
dence, the state filed a notice regarding its intent to
introduce at trial evidence of the defendant’s other acts
of sexual misconduct, specifically, evidence of the
defendant’s (1) misconduct toward A,10 and (2) miscon-
duct during his time as a police officer with the Middle-
town Police Department. On May 31, 2019, the defen-
dant filed an objection, arguing that the evidence sought
to be offered regarding the latter incident was too
remote and dissimilar to the charged conduct for proper
admission under § 4-5 (b) of the Connecticut Code of
Evidence.
Thereafter, on June 4, 2019, the court held a hearing
on the state’s notice. The state argued that, under State
v. DeJesus, 288 Conn. 418, 470–71, 953 A.2d 45 (2008),
and § 4-5 (b) of the Connecticut Code of Evidence,
evidence of the uncharged misconduct in question was
sufficiently similar to the charged misconduct to be
admissible. The state began by summarizing a February,
2015, incident that occurred while the defendant was
employed as a Middletown police officer. During that
incident, the defendant responded to an alleged viola-
tion of a protective order that had been reported by a
woman, P. According to P, her sister and her sister’s
boyfriend were at P’s house, in violation of a protective
order that P had against them. After arriving at P’s
house, the defendant made the sister and her boyfriend
leave. Then, while P had her back to the defendant, he
groped her buttocks and touched her breasts. Moments
later, the defendant took P’s hand and placed it on his
crotch. From this act, P got the impression that he
was asking for oral sex. The defendant eventually left
without further incident, but before he left, P gave him
her phone number. A few days later, she saw him at
court and he ignored her. P then reported the incident
to the Middletown Police Department. At the time of
the alleged assault, P was in her early twenties.
The state argued that the incident involving P was
sufficiently similar to the charged conduct regarding K
and, thus, that evidence of that incident was admissible
at the defendant’s trial. According to the state, both of
the incidents were close in time, the alleged victims
were both ‘‘girls who are in the prime of their sexual
blossom,’’ the conduct was similar, both young women
were in vulnerable situations when targeted by the
defendant, the defendant used his employment to gain
access to the young women, and the defendant was in
a position of authority over them.
The defendant contended that the uncharged miscon-
duct involving P should be excluded at trial because
there were significant differences between that miscon-
duct and the conduct with which the defendant was
charged. According to the defendant, evidence of the
incident involving P was too dissimilar to be admissible
because P was older than K at the time of P’s assault,
P was in her own home when the assault allegedly
occurred, the incident happened two years before the
charged conduct, and the conduct in that incident was
different from the defendant’s conduct toward K. Fur-
thermore, evidence of the incident involving P was more
prejudicial than probative because it would lead the
jury to speculate as to why the defendant left the Middle-
town Police Department.
The court concluded that evidence of the incident
involving P was admissible at trial. The court noted that
the uncharged misconduct evidence was different from
what happened to K because the young women’s ages
and the defendant’s conduct were different. The court,
however, concluded that those differences were not
enough to exclude the evidence because the situations
that both alleged victims had found themselves in, spe-
cifically, interacting with someone in a position of
authority, were sufficiently similar for the evidence to
be admissible. The court also concluded that evidence
of the incident was not unduly prejudicial because P
could be cross-examined at trial.
At trial, P testified that, after the defendant made her
sister and the boyfriend leave, he remained at her resi-
dence and the two made small talk. During that time,
he noticed a marijuana bong in P’s living room, joked
about the bong, and told P to put it away. Then, while P
was in the kitchen looking for her copy of the protective
order, the defendant came up behind her and groped
her breasts and buttocks. He next began wandering
around P’s home, eventually stopping in the bathroom.
P followed him, and, while the defendant was in the
bathroom, he grabbed her hand and pulled it to his
crotch. When P touched his crotch, she noticed that he
had an erection. P testified that she understood the
defendant’s action of pulling her hand to his crotch to
mean that the defendant wanted her to perform oral
sex on him. P rejected his advances, and the defendant
eventually left.
We begin by setting forth the applicable standard of
review and principles of law that guide our analysis.
‘‘The admission of evidence of prior uncharged miscon-
duct is a decision properly within the discretion of the
trial court. . . . [Every] reasonable presumption
should be given in favor of the trial court’s ruling. . . .
[T]he trial court’s decision will be reversed only where
abuse of discretion is manifest or where injustice
appears to have been done.’’ (Internal quotation marks
omitted.) State v. Daniel W., 180 Conn. App. 76, 88,
182 A.3d 665, cert. denied, 328 Conn. 929, 182 A.3d
638 (2018).
As a general rule, evidence of ‘‘other crimes, wrongs
or acts of a person is inadmissible to prove the bad
character, propensity, or criminal tendencies of that
person.’’ Conn. Code Evid. § 4-5 (a). In DeJesus, how-
ever, our Supreme Court held that evidence of
uncharged sexual misconduct can be introduced as pro-
pensity evidence in criminal cases if certain conditions
are met. State v. DeJesus, supra, 288 Conn. 470–71.
Specifically, evidence of uncharged sexual misconduct
is admissible ‘‘if it is relevant to prove that the defendant
had a propensity or a tendency to engage in the type
of aberrant and compulsive criminal sexual behavior
with which he or she is charged. . . . [E]vidence of
uncharged misconduct is relevant to prove that the
defendant had a propensity or a tendency to engage in
the crime charged only if it is: (1) . . . not too remote
in time; (2) . . . similar to the offense charged; and
(3) . . . committed upon persons similar to the prose-
cuting witness. . . . Second, evidence of uncharged
misconduct is admissible only if its probative value
outweighs the prejudicial effect that invariably flows
from its admission.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Id., 473.
In DeJesus, our Supreme Court concluded that evi-
dence of the defendant’s uncharged misconduct—an
incident involving a woman identified as N—was admis-
sible to prove that the defendant had a propensity to
‘‘sexually assault young women of limited mental ability
with whom he worked and over whom he had supervi-
sory authority.’’ Id., 474–75. This was so because of
the similarities between the two assaults: ‘‘The women
were similar in age and appearance. Both suffered from
a mental disability and had a difficult time learning new
skills. The defendant had hired both the victim and N
and was aware of their mental limitations. The defen-
dant’s assaults of the two women occurred in a similar
manner as well.’’ (Internal quotation marks omitted.)
Id., 475.
In contrast, in State v. Ellis, 270 Conn. 337, 358, 852
A.2d 676 (2004), our Supreme Court held that certain
uncharged misconduct evidence was too dissimilar
from the charged crime to be admissible.11 In Ellis, the
defendant was charged with sexual misconduct toward
a teenager, Sarah S. Id., 352. During the trial, the prose-
cution, over the defendant’s objections, introduced the
testimony of three other victims to help establish a
common plan or scheme on the part of the defendant.12
Id. On appeal, the defendant argued that this evidence
was erroneously admitted because the incidents involv-
ing Sarah S. differed in frequency and severity from
those involving the other girls, and the defendant had
a different relationship with Sarah S. than he had with
the other girls. Id. Our Supreme Court agreed and con-
cluded that the trial court erred in admitting the testi-
mony of the other girls because (1) Sarah S. had been
assaulted at least eight times, while the others were
assaulted only once or twice, (2) the defendant’s abuse
of Sarah S. was far more extreme than his abuse of the
other girls, and (3) the other girls had a relationship
with the defendant and had frequent and continuous
contact with him while Sarah S. did not. Id., 358–61.
On the basis of these differences, our Supreme Court
held that the evidence concerning the other girls was
too dissimilar to the charged conduct to be admissible.
Id., 365; see also State v. Gupta, 297 Conn. 211, 229,
998 A.2d 1085 (2010) (victims in one case were too
dissimilar to support cross admissibility in separate
case because defendant’s conduct toward one victim
was more frequent and severe than his conduct toward
others), overruled on other grounds by State v. Payne,
303 Conn. 538, 34 A.3d 370 (2012).
In applying DeJesus and Ellis, our appellate courts
consistently have considered several factors to deter-
mine whether evidence of uncharged misconduct is
sufficiently similar to the charged conduct to be admis-
sible. Those factors include the location of the assaults,
the defendant’s conduct, the relationship between the
defendant and the victims, the ages of the victims, and
the frequency and severity of the assaults. See, e.g.,
State v. Acosta, 326 Conn. 405, 416–18, 164 A.3d 672(2017) (uncharged misconduct evidence admissible
where defendant’s conduct was similar, victims were
similar in age, and victims were both nieces of defen-
dant); State v. Gupta, supra, 297 Conn. 229 (considering
frequency and severity of defendant’s assaults on differ-
ent victims in determining admissibility of uncharged
misconduct evidence); State v. Angel M., 180 Conn. App.
250, 261–62, 183 A.3d 636 (2018) (uncharged miscon-
duct evidence was admissible where assaults occurred
in same location, charged and uncharged conduct was
identical, victims were same age, and defendant was
‘‘parental figure’’ to both victims), aff’d, 337 Conn. 655,
255 A.3d 801 (2020); State v. Daniel W., supra, 180
Conn. App. 85–86 (uncharged misconduct evidence was
admissible where assaults occurred in same location,
assaults began while both victims were asleep, victims
were both young girls, and charged and uncharged con-
duct was identical).
After considering the applicability of these factors
to the present case, we conclude that the defendant’s
uncharged misconduct toward P was not sufficiently
similar to the charged conduct involving K to be admis-
sible at trial. First, both the frequency and severity of
the assaults were different. With K, the defendant’s
conduct occurred repeatedly over a period of two
months. Further, according to K’s testimony, through-
out that time, the defendant (1) groped her buttocks,
(2) made explicit references to wanting her to perform
oral sex on him, (3) had her masturbate in front of him
at least ten times, (4) used a series of signals to tell
her how he wanted her to masturbate, (5) ran his hand
up her inner thigh, almost to the point of vaginal pene-
tration, (6) had her wipe her vaginal fluid on his hand,
and (7) showed her sexually inappropriate notes and
pictures on his phone. In contrast, the defendant’s
alleged assault of P was a one time, relatively brief
encounter, and his conduct was limited to (1) groping
her buttocks and breasts, (2) pulling her hand to his
crotch, and (3) insinuating that he wanted her to per-
form oral sex on him.
The state contends that the defendant’s assault of P
was less frequent and less severe than his assault of K
only because the defendant had just one interaction
with P. We are not persuaded. The defendant had P’s
phone number and knew where she lived. The defen-
dant also saw P at court on at least one occasion. Yet,
despite this, he never made a second attempt to assault
her. In fact, he chose to ignore her.
Moreover, although the defendant was in a position
of authority over both young women, the position of
authority that he held in each incident was materially
different. As a Touchstone employee, the defendant
was responsible for providing K with trauma informed
care and for teaching her important life skills. As such,
the defendant had significant control over most aspects
of her daily life. K also was confined to Touchstone
and could not escape the defendant’s presence nor tell
him to leave the facility. In contrast, the defendant had
little control over P. At the time of the alleged assault,
P was neither under arrest nor a suspect in a crime.
Moreover, given that the incident occurred in P’s home,
she was not precluded from asking the defendant to
leave or leaving herself. The state argues that the defen-
dant did have control over P because he could have
arrested her for possessing drug paraphernalia. P testi-
fied, however, that the defendant instructed her to put
away the bong before he assaulted her. Furthermore,
P did not testify that the defendant threatened to arrest
her if she did not accede to his assaultive conduct or
that she ever felt at risk of being arrested. Consequently,
to the extent that the defendant had any control over
P, it was minimal as compared to the pervasive control
that he exercised over K.
The locations of the assaults also were materially
different. The defendant’s alleged assault of P occurred
when she was alone and in her home with the defendant,
while the defendant’s assault of K occurred when she
was in a group facility where there was a risk of detec-
tion. Moreover, the defendant had a relationship with
K while P was a total stranger to him. The young women
were also different ages at the time of the alleged
assaults, as P was in her early twenties and K was
fifteen. But see State v. Johnson, 76 Conn. App. 410,
419, 819 A.2d 871 (victims were sufficiently similar even
though three were adult women and one was teen),
cert. denied, 264 Conn. 912, 826 A.2d 1156 (2003).
The state is correct that the uncharged misconduct
evidence was not too remote in time to be admissible
because the charged conduct occurred just two years
after the incident involving P. See id. (three year gap
between uncharged and charged incidents was suffi-
ciently proximate). We also agree with the state that
there are some similarities between the charged and
uncharged misconduct, namely, that (1) both K and P
were in vulnerable situations when the assaults
occurred, (2) the defendant used his employment to
gain access to both young women, and (3) in both inci-
dents, the defendant allegedly groped the young wom-
en’s buttocks and hinted at them performing oral sex
on him. These few similarities, however, provide an
insufficient basis upon which to conclude that evidence
of the incident involving P was admissible, given the
many significant differences between the charged con-
duct and the uncharged conduct. Thus, we conclude
that evidence of that incident was too dissimilar from
the charged conduct to be admissible at the defendant’s
trial and that the trial court erred in admitting that
evidence.13
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity might
be ascertained. See General Statutes § 54-86e.
2
We decline to review the defendant’s third claim because he makes a
different argument on appeal than was made at trial, thus rendering the
claim unpreserved. Specifically, on appeal, the defendant contends that
evidence of K’s sexual history should have been admissible for credibility
purposes. This differs from the argument made before the trial court, which
was that K’s sexual history was admissible under State v. Rolon, 257 Conn.
156, 777 A.2d 604 (2001), to demonstrate an alternative source of information
for her sexual knowledge. As such, we are not required to review this claim.
See State v. Scott C., 120 Conn. App. 26, 34, 990 A.2d 1252 (declining to
review claim based on grounds different from those raised before trial
court), cert. denied, 297 Conn. 913, 995 A.2d 956 (2010).
Moreover, the record is unclear as to whether the court explicitly barred
the introduction of evidence concerning alleged conduct that could be
viewed as distinct from K’s prior sexual history. Given this, we further
decline to review the defendant’s third claim because it is unclear, based
on the record, if or how that issue might arise on remand.
3
For the sake of clarity and ease of discussion, we have reordered the
claims as they are set forth in the defendant’s brief.
4
Nothing in the record identifies which department documents were
released to the parties. It appears from the parties’ briefs that at least two
different department records were, at some point, released to the defendant.
Those records, however, are also not included in the record on appeal.
5
We decline to divulge specific information or any details about what our
in camera review revealed because A might decide to preclude the disclosure
of the relevant records. See State v. Olah, 60 Conn. App. 350, 355, 759 A.2d
548 (2000) (‘‘The state must obtain the witness’ consent to waive his or her
privilege so that the relevant portion of the record may be released to the
defendant. If such waiver is not forthcoming, the witness’ testimony must
be stricken.’’).
6
Although the record of what documents were released to the parties is
not entirely clear, according to the parties’ briefs and the trial transcripts,
it appears that the only records that were disclosed were records from the
department, which were subpoenaed by the state and did not include the
Solnit records in question that were subpoenaed by the defendant.
7
Because the record does not reflect what department records were
disclosed to the parties, we have reviewed the entirety of the department
records that are part of the trial court record, and none of them includes
the information that is in the sealed Solnit records.
8
Section 4-5 (b) of the Connecticut Code of Evidence provides: ‘‘Evidence
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 compul-
sive 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.’’
9
On appeal, the defendant also argues that the trial court erred in admitting
evidence of uncharged misconduct because the court never made a finding
that his conduct was both aberrant and compulsive, as required by § 4-5 (b)
of the Connecticut Code of Evidence. We decline to address this argument,
however, because, as defense counsel conceded at oral argument before
this court, it was not raised before the trial court. Instead, the only issue
raised before the trial court as to uncharged misconduct under § 4-5 (b)
was whether the uncharged misconduct was similar enough to the charged
conduct to be admissible. The defendant never challenged whether or not
the uncharged misconduct was aberrant and compulsive in nature. As such,
we will not consider this claim. See Practice Book § 60-5 (‘‘[t]he court shall
not be bound to consider a claim unless it was distinctly raised at the trial
or arose subsequent to the trial’’). We also decline to address this argument
because it is not likely to arise during the proceedings on remand.
10
On appeal, the defendant does not challenge the admissibility of the
uncharged misconduct evidence concerning A.
11
We acknowledge that Ellis predates DeJesus and also involves the
admissibility of prior misconduct evidence to show a common plan or
scheme and not, as in DeJesus, to demonstrate that the defendant had a
propensity to commit sexual assault. State v. Ellis, supra, 270 Conn. 352.
Nevertheless, in State v. Gupta, 297 Conn. 211, 225 n.7, 998 A.2d 1085 (2010),
overruled on other grounds by State v. Payne, 303 Conn. 538, 34 A.3d 370(2012), our Supreme Court made clear that, although in DeJesus it ‘‘changed
the label of the exception’’ from the common plan or scheme exception to
the propensity exception, it ‘‘did not change the parameters that such evi-
dence must satisfy to be admissible. . . . Therefore, DeJesus in no way
undermines the vitality of the reasoning in Ellis.’’ (Citations omitted.) Conse-
quently, both this court and our Supreme Court still consider the factors
set out in Ellis when analyzing the admissibility of uncharged misconduct
evidence pursuant to DeJesus. See, e.g., State v. Devon D., 321 Conn. 656,
671, 138 A.3d 849 (2016); State v. Eddie N. C., 178 Conn. App. 147, 163, 174
A.3d 803 (2017), cert. denied, 327 Conn. 1000, 176 A.3d 558 (2018). Thus,
the factors set forth in Ellis are relevant to our analysis in the present case.
12
In Ellis, the defendant also was charged with sexual misconduct as to
two of the other three witnesses whose testimony the state relied on in
Sarah S.’s case, and the three cases were consolidated for trial. State v.
Ellis, supra, 270 Conn. 365. Consistent with its conclusion that the court
erred in allowing the testimony of the other three witnesses to be used in
Sarah S.’s case, our Supreme Court also held that the trial court erred in
consolidating Sarah S.’s case with the other two cases. Id., 381.
13
We note that the state contends that any error in this regard was harm-
less. Because we address this claim as an issue likely to arise on remand,
we need not address questions of harmless error in the present appeal. See
State v. Ashby, 336 Conn. 452, 496 n.43, 247 A.3d 521 (2020). Nevertheless,
we do note that, in arguing that any error in admitting P’s testimony was
harmless, the state relies, in part, on A’s testimony corroborating K’s allega-
tions and A’s testimony that the defendant ‘‘similarly asked her to masturbate
for him.’’ This reliance buttresses our conclusion in part I of this opinion
that the failure to disclose relevant impeachment material regarding A was
not harmless.