State v. Eddie N. C. , 178 Conn. App. 147 ( 2017 )

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STATE OF CONNECTICUT v. EDDIE N. C.*
(AC 39878)
DiPentima, C. J., and Prescott and Mihalakos, Js.
Syllabus
Convicted of the crimes of risk of injury to a child and sexual assault in
the first degree in connection with his alleged sexual abuse of the minor
victim, who was his cousin, the defendant appealed to this court. He
claimed, inter alia, that the trial court improperly admitted into evidence,
under the applicable provision of the Connecticut Code of Evidence
(§ 4-5 [b]), certain prior sexual misconduct testimony from his cousin,
S, and certain statements that the victim had made to her mother, to
the victim’s treating physicians, P, W and L, and to a social worker, V,
under the medical diagnosis and treatment exception to the hearsay
rule. Held:
1. The trial court did not abuse its discretion in admitting the prior uncharged
misconduct evidence concerning the defendant’s alleged sexual abuse
of S: the twelve year gap between the uncharged conduct and the conduct
with which the defendant was charged here was not too remote in time,
the charged and uncharged conduct were sufficiently similar, and S and
the victim were sufficiently similar to each other, as many of the acts
the defendant performed on S and the victim were identical, the abuse
of S and the victim occurred in the defendant’s home and in the vicinity
of other family members, and S and the victim were cousins of the
defendant who were nearly identical in age when he began abusing
them; moreover, the prior uncharged misconduct evidence involving S
was highly probative, and the prejudicial effect of S’s testimony was no
more severe or egregious than the conduct with which the defendant
was charged here.
2. The defendant could not prevail on his claim that the trial court improperly
admitted into evidence, under the medical diagnosis and treatment
exception to the hearsay rule, certain of the victim’s statements to her
mother, and to P, W and V, the record having amply supported that
court’s determination that the victim’s statements were made for the
purpose of, and were reasonably pertinent to, obtaining medical diagno-
sis and treatment: it was necessary for P to ask the victim about the
duration, frequency, method and extent of the abuse for P to be able
to treat the victim and to determine whether to transfer her to a hospital
that specialized in treating child victims of sexual abuse, the victim’s
statements to W about the acts committed by the defendant and about
the victim’s pain level, as well as W’s observations regarding injuries to
the victim’s genitalia, were necessary to determine the appropriate scope
of treatment and the extent of the victim’s physical and psychological
abuse, and although the defendant claimed that the purpose of V’s
forensic interview of the victim was investigatory, the court did not
abuse its discretion in admitting the victim’s statements to V under the
medical diagnosis and treatment exception to the hearsay rule after
finding that at least one purpose of the interview was to assist P’s
medical examination of the victim; moreover, any error in the admission
of the victim’s statement to her mother that the defendant had licked
her private parts was harmless, as the victim’s statement was cumulative
of similar statements she made to others, the overall strength of the
state’s case was high, and the victim’s allegations were bolstered by S’s
testimony that the defendant had abused S in the same way when S
was the victim’s age.
3. The defendant’s unpreserved claims that the trial court committed plain
error by admitting the opinions of P and W that the victim had been
sexually assaulted and by permitting P and W to improperly vouch for
the victim’s credibility were unavailing: even if the admission of the
challenged evidence was improper, any evidentiary impropriety under
the circumstances at issue did not result in manifest injustice thereby
requiring reversal of the judgment, as defense counsel brought to the
jury’s attention P’s diagnosis of sexual assault and, on cross-examination
of P and W, ameliorated significantly any harmful effect of their testi-
mony and the admission of certain medical records, and the state, during
closing argument, did not rely on the opinions of P or W as to whether
the victim had been sexually assaulted but, instead, emphasized the
medical findings of physical injury to the victim and that those findings
were consistent with the victim’s allegations of sexual assault; moreover,
defense counsel made clear during closing argument that the jury was
not bound by any of the physicians’ diagnoses of sexual assault, and
even if L’s testimony improperly vouched for the victim’s credibility,
any error did not rise to the level of manifest injustice, as the state’s
case against the defendant was strong, and the victim’s allegations were
corroborated by S’s testimony and W’s findings that the victim had
sustained physical injuries to her genitals after the victim alleged that
the defendant had sexually assaulted her earlier that day.
Argued September 7—officially released November 21, 2017
Procedural History
Substitute information charging the defendant with
four counts of the crime of risk of injury to a child and
three counts of the crime of sexual assault in the first
degree, brought to the Superior Court in the judicial
district of Waterbury, where the court, Crawford, J.,
denied in part the defendant’s motion to preclude cer-
tain evidence and granted the state’s motion to intro-
duce certain evidence; thereafter, the matter was tried
to the jury; verdict and judgment of guilty, from which
the defendant appealed to this court. Affirmed.
Heather Clark, assigned counsel, for the appellant
(defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Catherine Brannelly Austin, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Eddie N. C., appeals
from the judgment of conviction, rendered after a jury
trial, of three counts of sexual assault in the first degree
in violation of General Statutes § 53a-70 (a) (2); three
counts of risk of injury to a child in violation of General
Statutes § 53-21 (a) (2); and one count of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(1). The defendant claims that the trial court improperly
admitted (1) prior misconduct testimony, (2) state-
ments made by the victim, A, to her mother, treating
physicians, and a social worker under the medical diag-
nosis and treatment exception to the hearsay rule, and
(3) opinion evidence regarding the ultimate issue of
whether A had been sexually assaulted, which the
defendant claims constitutes plain error. We disagree
and, accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. A was five or six years old when the defendant
began sexually assaulting her. The defendant is the first
cousin of A’s mother, J. In 2013, J worked as a dialysis
technician three or more days a week. Her shift began
at 4:30 a.m. and ended at 8 p.m. Due to the lack of
available day care, J approached the defendant and his
wife, Ashley C., and asked whether they would be able
to babysit A on the days J worked. The defendant and
Ashley C. agreed, and began babysitting A around Sep-
tember, 2013.
The dialysis center where J worked was approxi-
mately forty-five minutes away from her home, so J
would drop A off at the defendant’s house at approxi-
mately 3 a.m. A would then sleep or watch television
on the couch in the defendant’s living room until it was
time for school. A returned to the defendant’s house
after school and remained there until J was able to pick
her up after work—usually between 8 and 10 p.m.
On April 9, 2014, the defendant and Ashley C. were
babysitting A when A disclosed to Ashley C. that the
defendant did ‘‘nasty stuff’’ to her in the kitchen. Ashley
C. called J and relayed that A had told her that the
defendant was ‘‘doing things’’ to her and that A ‘‘wanted
it to stop.’’ Ashley C. was too upset to repeat A’s exact
words and told J that she should leave work.
On her way to the defendant’s house, J called the
police and asked them to meet her because A was alone
with the defendant and Ashley C. and J ‘‘didn’t feel safe.’’
J and the responding police officer, James McMahon,
arrived at the defendant’s home at approximately the
same time. When J entered the defendant’s home, A
began to cry. The defendant, who was sitting in the
kitchen, said to J, ‘‘[J], you know me. You know I
wouldn’t do this.’’
McMahon then spoke with the defendant and asked
dant initially responded that he had not, but later in
the conversation admitted that there were times he was
alone with her in the morning when Ashley C. was in the
shower. McMahon also asked the defendant whether he
had had physical contact with A, to which the defendant
responded that he occasionally would make ‘‘farting
noises on her belly’’ when the two were playing around.
After a short period, J and A left the defendant’s
house and drove to Waterbury Hospital. In the car on
the way to the hospital, J asked A to tell her the truth
about what happened. A responded, ‘‘Mom, he was lick-
ing my private parts.’’
J and A arrived at Waterbury Hospital, and A was
seen by Dr. Lauren Py in the emergency department.
Dr. Py conducted a general examination of A. During
the examination, A told Dr. Py that the defendant had
abused her earlier that day, as well as on previous
occasions. Specifically, A told Dr. Py that the defendant
would sometimes take her pants down, touch her, and
‘‘lick her in her private parts.’’ A also told Dr. Py that
she had pain in her genital region. After Dr. Py’s exami-
nation, she recommended to J that A be transferred
to either Yale-New Haven Hospital or the children’s
hospital in Hartford, both of which specialize in treating
cases of child sexual abuse.
A was then seen at Yale-New Haven Hospital by Dr.
Susan Walsh in the pediatric emergency department. A
reported to Dr. Walsh that the defendant had touched
her breasts, mouth, and vagina, as well as penetrated
her vaginally with his penis. A also reported that she
had pain in her genital region and vaginal discharge.
In addition to conducting an interview, Dr. Walsh
performed an external physical examination of A. Dur-
ing the evaluation, Dr. Walsh observed that A’s vagina
was extremely tender to the touch and that A was tear-
ful. Dr. Walsh further observed that there was discharge
on A’s labia, that the flap of skin over A’s clitoris was
especially tender and red, and that A had sustained an
abrasion on the lips of her vagina. Dr. Walsh also took
swabs from A’s vagina and anus using a sexual assault
kit, and took an additional sample from A of what Dr.
Walsh believed was bodily fluid.1
After the examination, Dr. Walsh referred A to the
Yale Child Sexual Abuse Clinic. Monica Vidro, a licensed
clinical social worker at the Yale Child Sexual Abuse
Clinic, called J to set up a follow-up examination of A.
On April 16, 2014, Vidro conducted a forensic interview
of A, which was observed by Dr. Lisa Pavlovic of the
Yale Child Sexual Abuse Clinic; Daniel Dougherty, a
detective in the sex crimes unit of the Waterbury Police
Department; and a representative from the Department
of Children and Families.
During the forensic interview, A disclosed to Vidro
that the defendant had licked her genitals, as well as
put his penis in her vagina and anus. A identified the
vagina and buttocks of a prepubescent female and the
penis of a male on respective anatomically correct
drawings. A also told Vidro that the defendant had mas-
turbated in front of her to the point of ejaculation, and
demonstrated how the defendant had moved his hands
up and down his penis. Finally, A disclosed to Vidro
that the defendant had shown her pornography and
described certain characteristics of the individuals fea-
tured in the film.
After attending the forensic examination of A con-
ducted by Vidro, Dougherty contacted the defendant
and asked whether he would be willing to meet. The
defendant indicated that he would. The meeting took
place at the Waterbury Police Department, during
which the defendant voluntarily waived his rights and
agreed to answer Dougherty’s questions. The defendant
told Dougherty that on the afternoon of April 9, 2014,
Ashley C. told him that A had said that the defendant
was doing ‘‘nasty things’’ to her. The defendant told
Ashley C. that he had ‘‘fart[ed]’’ on A. The defendant
also voluntarily submitted a cheek swab for DNA and
allowed Dougherty to search his phone for por-
nography.2
At trial, the state presented testimony from A, J,
McMahon, Dr. Py, Dr. Walsh, Vidro, Dougherty, A’s kin-
dergarten teacher, Sarah Feola,3 Dr. Pavlovic, and A’s
maternal aunt, S. The state also introduced into evi-
dence A’s medical records from Waterbury Hospital
and Yale-New Haven Hospital, as well as a portion of
A’s forensic interview.
At the time of trial, A was seven years old. A testified
that the defendant had penetrated her anally with his
penis, as well as performed oral sex on her. A supple-
mented her testimony by circling the parts of her body
that the defendant touched with his penis on an anatom-
ically correct drawing of a young female. A also demon-
strated the acts that the defendant had subjected her
to using anatomically correct dolls.
A further testified that after the defendant engaged
in anal intercourse with her, he masturbated until a
‘‘light green . . . light yellow’’ substance came out of
his penis, and that he wiped his ejaculate on a piece
of toilet paper and showed it to A before throwing it
away. Finally, A testified that the defendant had showed
her pornographic movies and described to the jury cer-
tain characteristics of the actors. Specifically, A
described the actors’ gender, race, clothing, the size of
the bed featured, and the acts performed.
When A was asked whether any of the defendant’s
body parts besides his tongue had touched her vagina,
she responded that they had not. The state then entered
into evidence segments of A’s forensic interview, con-
ducted by Vidro, in which A disclosed that the defendant
had penetrated her vagina with his penis.
The defendant testified in his own defense,4 as well
as presented testimony from Ashley C.,5 neighbor Fran-
sauch Marleen Castillo, and family friend Christy C.6
The defendant also submitted as evidence a stipulation
that stated that he had not contributed to any DNA
found in a biological sample taken from A shortly after
she reported the abuse on April 9, 2014.
Subsequently, the jury returned a verdict of guilty on
all seven counts: three counts of sexual assault in the
first degree in violation of § 53a-70 (a) (2) (count one:
cunnilingus; count three: penile-vaginal penetration;
count five: penile-anal penetration); three counts of risk
of injury to a child in violation of § 53-21 (a) (2) (count
two: mouth-genital area; count four: penis-genital area;
count six: penis-buttocks area); and one count of risk
of injury to a child in violation of § 53-21 (a) (1) (count
seven: pornography). The court sentenced the defen-
dant to a total effective term of twenty-five years of
incarceration and twenty-five years of special parole.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The defendant first claims on appeal that the trial
court improperly admitted into evidence prior miscon-
duct testimony through the defendant’s cousin, S, to
prove the defendant’s propensity to engage in sexual
misconduct. Specifically, the defendant argues that the
misconduct complained of by S was (1) remote in time
compared to the offenses charged; (2) dissimilar to the
offenses charged; and (3) not committed on someone
similar to A. The defendant further argues that the evi-
dence should have been excluded because its probative
value does not outweigh its prejudicial effect. We
disagree.
The following additional facts and procedural history
are relevant to this claim. On June 1, 2015, the state
filed a motion stating its intent to offer uncharged mis-
conduct evidence at trial, through S, the then twenty-
three year old first cousin of the defendant, to prove
that the defendant had a propensity to engage in the
type of sexual misconduct complained of by A. The
state proffered that the defendant had sexually abused
S when she was a child, beginning when she was four
or five and continuing until the age of ten.7 The state
further proffered that the majority of the abuse
occurred at the defendant’s family home. For the first
two or three years, the defendant inappropriately
touched S’s chest and vagina over her clothes. When
S was seven, however, the abuse progressed to the
defendant performing oral sex on her, anally penetrat-
ing her with his penis, and vaginally penetrating her
with his fingers. The state also proffered that the defen-
dant had shown S pornographic movies.
The state argued that the prior misconduct evidence
was relevant because (1) S and A were the same age
when the alleged abuse began; (2) S and A are both
cousins of the defendant; (3) the instances of the alleged
abuse occurred in the defendant’s home; and (4) the
charged and uncharged conduct was nearly identical.
The state further argued that, considering these similari-
ties, the twelve years between the charged and
uncharged acts did not render the prior misconduct too
remote in time.
On June 8, 2015, the defendant filed a motion in limine
seeking to preclude the prior misconduct testimony of
S. In support of his motion, the defendant argued that S
and A were not similarly situated because the defendant
was a minor himself when he allegedly abused S. The
defendant further argued that the conduct complained
of by S was too remote in time relative to the charged
conduct because it occurred more than one decade
beforehand. Finally, the defendant argued that the pro-
bative value of the evidence was minimal and out-
weighed by its prejudicial effect.
On June 16 and 24, 2015, the court heard oral argu-
ment on the defendant’s motion in limine. The court
subsequently denied the defendant’s motion to preclude
prior misconduct testimony offered by the state through
S. The court concluded that S and A were sufficiently
similar persons, noting that both victims were similar
in age when the misconduct began and were cousins
of the defendant. The court further concluded that the
alleged conduct was sufficiently similar, and that the
gap in time between S’s allegations and A’s allegations
was not too remote in light of relevant case law dis-
cussing remoteness. Finally, the court determined that
the probative value of the evidence outweighed its prej-
udicial effect. Accordingly, S was allowed to testify at
trial about the defendant’s prior misconduct.8
We begin our analysis of the defendant’s claim by
setting forth the applicable standard of review. ‘‘The
admission of evidence of prior uncharged misconduct
is a decision properly within the discretion of the trial
court. . . . [E]very reasonable presumption should be
given in favor of the trial court’s ruling. . . . [T]he trial
court’s decision will be reversed only where abuse of
discretion is manifest or where injustice appears to
have been done.’’ (Internal quotation marks omitted.)
State v. Heck, 128 Conn. App. 633, 638, 18 A.3d 673,
cert. denied, 301 Conn. 935, 23 A.3d 728 (2011).
As a general rule, prior misconduct evidence is inad-
missible to prove the defendant’s bad character or crim-
inal tendencies. See Conn. Code Evid. § 4-5 (a)
(‘‘[e]vidence of other crimes, wrongs or acts of a person
is inadmissible to prove the bad character, propensity,
or criminal tendencies of that person except as provided
in subsection [b]’’). In State v. DeJesus, 288 Conn. 418,
470, 953 A.2d 45 (2008), however, our Supreme Court
recognized ‘‘a limited exception to the prohibition on
the admission of uncharged misconduct evidence in sex
crime cases to prove that the defendant had a propen-
sity to engage in aberrant and compulsive criminal sex-
ual behavior.’’ (Emphasis in original.) This exception to
the admission of propensity evidence was subsequently
codified in § 4-5 (b) of the Connecticut Code of
Evidence.
Under § 4-5 (b) and DeJesus, 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 crimi-
nal sexual behavior with which he or she is charged.’’
Id., 473. ‘‘[E]vidence of uncharged misconduct is rele-
vant 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 [complaining] witness.’’ (Internal quota-
tion marks omitted.) Id. In addition, the court must also
find that the probative value of the evidence ‘‘outweighs
the prejudicial effect that invariably flows from its
admission.’’9 (Internal quotation marks omitted.) Id.
The defendant first argues that the prior misconduct,
which occurred twelve years before the charged con-
duct, is too remote in time. In assessing remoteness,
‘‘we compare the time with reference to the period
between the cessation of the prior misconduct and the
beginning of the charged sexual abuse.’’ (Internal quota-
tion marks omitted.) State v. Antonaras, 137 Conn. App.
703, 716, 49 A.3d 783, cert. denied, 307 Conn. 936, 56
A.3d 716 (2012). Our Supreme Court has declined to
‘‘adopt a bright line rule for remoteness, or a rule that
establishes a presumption that after ten years the
uncharged conduct is too remote.’’ State v. Acosta, 326
Conn. 405, 414, 164 A.3d 672 (2017). Thus, although
‘‘increased remoteness in time does reduce the proba-
tive value of prior misconduct evidence . . . it alone
is not determinative.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 414–15. ‘‘[R]elatively remote
uncharged sexual misconduct evidence’’ may be admis-
sible ‘‘if the other relevant similarities [warrant] it.’’
Id., 415.
Here, the twelve year gap between the uncharged and
charged conduct does not render the prior misconduct
evidence per se inadmissible. Our Supreme Court has
concluded that prior misconduct evidence is admissible
even if it occurred twelve years before the charged
misconduct in light of the relative strength of the other
two DeJesus prongs. See id. (holding that twelve year
gap between uncharged and charged conduct not too
remote); State v. Jacobson, 283 Conn. 618, 632–33, 930
A.2d 628 (2007) (ten year gap not too remote); State v.
Romero, 269 Conn. 481, 498, 849 A.2d 760 (2004) (nine
year gap not too remote). Although our Supreme Court
has acknowledged that ‘‘twelve years is not an insignifi-
cant period of time,’’ it has maintained that courts
should not consider individual prongs of the DeJesus
test in isolation. (Internal quotation marks omitted.)
State v. Acosta, supra, 326 Conn. 415.
It is therefore necessary to consider the remoteness
of the uncharged misconduct together with the other
two DeJesus prongs. Regarding the second prong of
DeJesus, that is, the similarity of the uncharged and
charged conduct, the defendant argues that the fre-
quency and severity of the conduct alleged by S and A
differed substantially. The defendant asserts that his
alleged abuse of S progressed far more slowly than his
alleged abuse of A because S alleged that it took two
to three years for the abuse to progress to oral and
anal intercourse. With A, however, the abuse seemingly
occurred over just a period of months.10 The defendant
also argues that the severity of the charged and
uncharged conduct is dissimilar because A reported
that the defendant had penetrated her vagina with his
penis, while S did not. Furthermore, the defendant
argues that the charged and uncharged conduct is dis-
tinguishable because S alleged that the defendant’s sis-
ter was often present in the same room when the abuse
occurred, whereas A reported that she and the defen-
dant were alone during these times.
Turning to the relevant law, ‘‘[i]t is well established
that the victim and the conduct at issue need only be
similar—not identical—to sustain the admission of
uncharged misconduct evidence.’’ (Internal quotation
marks omitted.) Id., 416. Additionally, although not an
exhaustive list, some factors our appellate courts have
considered in evaluating similarity of the charged and
uncharged conduct are the frequency and severity of
the abuse, as well as the location where the abuse took
place and whether it occurred in the vicinity of others.
State v. Antonaras, supra, 137 Conn. App. 717–19.
Here, there was evidence before the court from which
it reasonably could conclude that the charged and
uncharged conduct was sufficiently similar. Many of
the acts the defendant performed on S and A were
identical. Specifically, both S and A alleged that the
defendant had engaged in oral and anal intercourse,
touched their chest and genitalia, and showed them
pornographic films. Furthermore, although it is true
that A also accused the defendant of engaging her in
vaginal intercourse while S did not, S reported that
the defendant told her that he wanted to ‘‘take [her]
virginity’’ and ‘‘be the first one to put his penis in
[her] vagina.’’
The defendant argues that the fact that his sister was
often in the same room when the abuse occurred, while
A and the defendant were alone during these times,
distinguishes the charged and uncharged conduct. S
stated, however, that the defendant’s sister was asleep
or watching television and did not know what was tran-
spiring—much like Ashley C. and the defendant’s chil-
dren being in the defendant’s house but asleep or
otherwise unaware of the abuse. Notably, in both
instances the abuse occurred in the defendant’s home
and in the vicinity of other family members.
Finally, considering the many other similarities
between the charged and uncharged conduct, the fact
that the defendant abused S for a much longer period
of time than he abused A does not significantly weigh
against the admission of S’s testimony. See State v.
James G., 268 Conn. 382, 394, 844 A.2d 810 (2004)
(defendant’s abuse of complaining witness lasted less
than one year because her half-sister, whom defendant
had been abusing for eight years, reported abuse; fact
that complaining witness and half-sister ‘‘suffered sex-
ual abuse for different lengths of time [did] not illustrate
a behavioral difference of any significance’’).
The third and final prong of DeJesus assesses the
similarity of the misconduct witness to the complaining
witness. The defendant argues that S and A are not
sufficiently similar because the nature of the defen-
dant’s relationship with S was different from the nature
of his relationship with A. Specifically, the defendant
was a minor himself throughout the years he allegedly
abused S, and, arguably, S’s peer. With respect to A,
however, the defendant was an authority figure.
‘‘As with conduct, the victim[s] . . . at issue need
only be similar—not identical—to sustain the admission
of uncharged misconduct evidence.’’ (Internal quota-
tion marks omitted.) State v. Acosta, supra, 326 Conn.
417. The age of each witness at the time of the abuse,
as well as their familial relationship to the defendant,
are both factors a court may properly consider. See id.,
418. The nature of the defendant’s relationship with
each witness is also significant. State v. Gupta, 297
Conn. 211, 229–30, 998 A.2d 1085 (2010).
In support of his claim, the defendant cites State v.
Ellis, 270 Conn. 337, 853 A.2d 676 (2004), and State v.
Gupta, supra, 297 Conn. 211. In Ellis, the defendant, a
softball coach, was charged in separate cases with hav-
ing sexually assaulted three teenage girls: Sarah S., Julia
S., and Kristin C. State v. Ellis, supra, 339–40. The three
cases were consolidated and tried together. Id., 342.
The defendant argued on appeal that the trial court
had improperly admitted prior misconduct evidence
regarding Julia S., Kristin C., and a fourth victim, Kaitlyn
M., in Sarah S.’s case. Id., 352.
Our Supreme Court agreed with the defendant that
the trial court had, in fact, improperly admitted the
three instances of prior misconduct in Sarah S.’s case.
Id., 358. In so holding, our Supreme Court found that
the defendant’s abuse of Sarah S. was much more fre-
quent and severe than his abuse of the other victims.
Id., 359–60. The defendant had subjected Sarah S. to a
‘‘wide range of misconduct,’’ including masturbating
and ejaculating in her presence, digital penetration,
attempting to climb on top of her while she was in bed,
and attempting to force her to perform oral sex, among
other things. Id., 359. The defendant’s abuse of the three
prior misconduct witnesses—including fondling their
breasts in public, touching one of the victims’ legs, and
attempting to force his tongue into her mouth—was far
less egregious in comparison. Id., 359–60.
Furthermore, in Ellis, the defendant’s relationship
with Sarah S. ‘‘differed in several key respects from his
relationships with the other girls.’’ Id., 360. Specifically,
the prior misconduct witnesses were all players on vari-
ous softball teams coached by the defendant, had devel-
oped close personal relationships with the defendant
over a period of several years, and regarded him as a
confidant. Id., 361. Sarah S., however, had not been
coached by the defendant and had not developed a close
relationship with him. Id. Thus, our Supreme Court
concluded that ‘‘[Sarah S.] did not feel compelled, as
did the other girls, to cultivate or continue a relationship
with the defendant following the abuse because of his
ability to assist her in obtaining a college softball schol-
arship. Therefore, it cannot be inferred logically that, if
the defendant was guilty of the charged and uncharged
offenses involving Julia S., Kristin C. and Kaitlyn M.,
he also must have been guilty of the charged offenses
involving Sarah S.’’ Id.
The defendant also cites to State v. Gupta, supra,297 Conn. 211. In Gupta, three women alleged that the
defendant, a physician, sexually assaulted them during
various examinations. Id., 215–19. The three cases were
consolidated for trial. Id., 214. Our Supreme Court held
that the trial court had improperly admitted prior mis-
conduct evidence from one victim, M, in the cases of
the other two victims. Id., 233. Specifically, as in Ellis,
the defendant’s abuse of M was far more egregious than
his abuse of the other two victims. Id., 226–28. M alleged
that the defendant had grabbed her breasts, pinched
her nipples, exposed her vagina, tapped her pelvic bone,
and exclaimed that she was ‘‘so hot.’’ (Internal quotation
marks omitted.) Id., 226–27. The other two victims, how-
ever, alleged only that the defendant had exposed and
fondled their breasts. Id., 216–18. Additionally, the fact
that M was employed with the defendant’s medical
group and had a continuing relationship with him fur-
ther distinguished her from the other two victims.
Id., 230.
The present case is distinguishable from Ellis and
Gupta because in both those cases there were material
differences regarding the severity of misconduct in
addition to differences between the misconduct and
the complaining witnesses. Here, however, the severity
of the charged and uncharged conduct was sufficiently
similar—both S and A complained that the defendant
had performed oral sex on them, as well as penetrated
them anally with his penis. Furthermore, we conclude
that the trial court reasonably could have found that S
was sufficiently similar to A to admit the prior miscon-
duct testimony. Both S and A are cousins of the defen-
dant. Additionally, S and A were nearly identical in age
when the defendant began abusing them. Although S
and the defendant are much closer in age, S was only
four or five when the abuse began. The defendant, being
eleven or twelve, still would have been able to exert
considerable influence over S, much like he was able
to exert influence over A as her older cousin and baby-
sitter. Thus, although the court reasonably could have
weighed the differences between S and A more heavily,
it did not abuse its discretion in concluding that S and
A were sufficiently similar.
Having considered and weighed the similarity of the
charged and uncharged conduct, as well as the similar-
ity of S and A, we return to the remoteness prong of
DeJesus. In light of the relative strength of the other
two DeJesus prongs, we conclude that the court did
not abuse its discretion in determining that the twelve
year gap in time between the uncharged conduct and
the charged conduct was not too remote. See State v.
Acosta, supra, 326 Conn. 417–19 (trial court did not
abuse discretion in admitting uncharged sexual miscon-
duct evidence that occurred twelve years prior to
charged conduct because both victims were prepubes-
cent when misconduct occurred and nieces of defen-
dant, and initial stages of charged and uncharged
misconduct were sufficiently similar).
Finally, the defendant argues that the probative value
of S’s prior misconduct evidence does not outweigh its
prejudicial effect. The defendant does not explain how,
exactly, the prior misconduct evidence is unduly preju-
dicial. Rather, he concludes that the probative value of
the evidence is quite minimal because of the disparity
in age difference between the defendant and S (approxi-
mately seven years) and the defendant and A (approxi-
mately twenty-two years). Furthermore, the defendant
argues that he exhibited a ‘‘lack of compulsivity’’
because he had access to other young girls who did
not report abuse.
‘‘In balancing the probative value of such evidence
against its prejudicial effect . . . trial courts must be
mindful of the purpose for which the evidence is to
be admitted, namely, to permit the jury to consider a
defendant’s prior bad acts in the area of sexual abuse
or child molestation for the purpose of showing propen-
sity.’’ (Internal quotation marks omitted.) State v.
DeJesus, supra, 288 Conn. 473–74. ‘‘Although evidence
of child sex abuse is undoubtedly harmful to the defen-
dant, that is not the test of whether evidence is unduly
prejudicial. Rather, evidence is excluded as unduly prej-
udicial when it tends to have some adverse effect upon
a defendant beyond tending to prove the fact or issue
that justified its admission into evidence.’’ (Emphasis
omitted; internal quotation marks omitted.) State v.
Antonaras, supra, 137 Conn. App. 722–23. ‘‘The test for
determining whether evidence is unduly prejudicial is
not whether it is damaging to the defendant but whether
it will improperly arouse the emotions of the jury.’’
(Internal quotation marks omitted.) State v. Morales,
164 Conn. App. 143, 179, 136 A.3d 278, cert. denied, 321
Conn. 916, 136 A.3d 1275 (2016).
Turning to the present case, the record indicates that
the court carefully considered the admissibility of the
prior misconduct evidence offered by S and ultimately
found that it was highly probative, considering the simi-
larities between the alleged conduct, as well as between
S and A Furthermore, in assessing the prejudicial effect
of S’s testimony, we conclude that S’s allegations of
misconduct were no more severe or egregious than the
conduct for which the defendant was charged. In fact,
unlike S, A alleged that the defendant had subjected
her to vaginal intercourse, in addition to oral sex and
anal intercourse. Therefore, S’s testimony was no more
likely than A’s testimony to arouse the emotions of the
jury. In sum, we conclude that the trial court did not
abuse its discretion in admitting the prior misconduct
evidence offered by S.
II
The defendant next claims on appeal that the trial
court improperly admitted into evidence statements
that A made to J, Dr. Py, Dr. Walsh, and Vidro under
the medical diagnosis and treatment exception to the
hearsay rule. The defendant argues that the court
abused its discretion in admitting A’s statements
because the purpose of A’s interactions with J, Dr. Py,
Dr. Walsh, and Vidro was investigatory. The defendant
further argues that A’s out-of-court statements were not
reasonably pertinent to medical diagnosis or treat-
ment.11 The defendant cannot prevail on his claim.
The following facts are relevant to the defendant’s
claim. On or about June 30, 2015, the state filed a motion
in which it argued that statements made by A to J, Dr. Py,
Dr. Walsh, and Vidro, among others,12 were admissible
under § 8-3 (5) of the Connecticut Code of Evidence as
statements made for the purpose of obtaining medical
diagnosis or treatment.
On July 13, 2015, the court held a hearing on the
state’s motion and, outside the presence of the jury,
asked the state to make a proffer as to each witness.
With respect to J, the state proffered that she did not
feel comfortable with Officer McMahon questioning A
at the defendant’s residence. Rather, J wanted to trans-
port A to a hospital so she could be seen by a medical
doctor or psychiatrist. J then drove to the hospital
with A.
On the way to the hospital, J told A that she was
taking her to see a doctor and needed to know the truth
about what happened. A responded that the defendant
had licked her private parts. J did not question A further.
The state argued that A’s statement was admissible
under the medical treatment hearsay exception because
J’s motivation in gathering that information from A was
to seek further medical assistance for her child.
With respect to Dr. Py, the state proffered that, when
A was initially examined at Waterbury Hospital, she
told Dr. Py that the defendant had sexually abused her
earlier that day. A also told Dr. Py that the defendant
sometimes took A’s pants off when she was alone
watching television and licked her privates.
With respect to Dr. Walsh, the state proffered that A
was examined by her upon referral by Dr. Py to the
emergency department at Yale-New Haven Hospital for
treatment. During Dr. Walsh’s physical examination of
A, A told Dr. Walsh that the defendant had touched
her privates with his hands, licked her privates, and
penetrated her vagina with his penis. A also told Dr.
Walsh that her privates hurt and that the defendant
sometimes said mean things to her. Dr. Walsh observed
that A’s labia minora were red and tender, and that A
had an abrasion on her clitoral hood.
With respect to Vidro, the state proffered that Dr.
Walsh had referred A to the Yale Child Sexual Abuse
Clinic for a follow-up examination by Dr. Pavlovic to
determine whether A’s injuries had healed. Dr. Pavlovic
asked Vidro to conduct an interview of A so that Dr.
Pavlovic could fully understand the nature of the com-
plaint before her examination. Detective Dougherty and
a representative from the Department of Children and
Families also observed the interview. During the inter-
view, A told Vidro that the defendant had licked her
private parts, humped her, penetrated her with his penis
vaginally and anally, and masturbated to the point of
ejaculation.
At the hearing, the defendant objected to the prof-
fered testimony from J, Dr. Py, and Vidro. With respect
to J, the defendant argued that her credibility was lim-
ited because she was A’s mother, and not a medical
professional. The defendant further argued that J’s pur-
pose in asking A what had happened was investigatory
in nature. With respect to Dr. Py, the defendant argued
that A’s statements were not pertinent to treatment.
With respect to Vidro, the defendant argued that the
forensic interview served an investigatory as well as
medical purpose, and was therefore improperly
admitted.
Subsequently, the court issued an oral ruling permit-
ting each of the witnesses to testify regarding the state-
ments A made to them under the hearsay exception for
medical diagnosis and treatment. The court found that,
with respect to Dr. Py and Dr. Walsh, A’s statements
were made ‘‘in connection with determining what had
happened and what [Dr. Py and Dr. Walsh] needed to
do in terms of diagnosis and treatment.’’
With respect to Vidro, the court found that the fact
that at least one purpose of the interview was to aid
Dr. Pavlovic in her follow-up examination of A was
sufficient to qualify A’s statements under the medical
diagnosis and treatment exception. The court further
found that Vidro had the expertise and training neces-
sary to conduct the interview. Finally, the court ruled
that J could testify to the statement A made to her in
the car, ‘‘given that [J] was taking the child to the hospi-
tal, given the reason she responded to the house, why
she was taking the child to the hospital, and what [J]
expressed in terms of the evaluation and the assess-
ment . . . .’’
Turning now to the relevant standard of review, ‘‘[t]o
the extent [that] a trial court’s admission of evidence
is based on an interpretation of the Code of Evidence,
our standard of review is plenary. . . . We review the
trial court’s decision to admit evidence, if premised on
a correct view of the law, however, for an abuse of
discretion. . . . In other words, only after a trial court
has made the legal determination that a particular state-
ment is or is not hearsay, or is subject to a hearsay
exception, is it vested with the discretion to admit or
to bar the evidence based upon relevancy, prejudice,
or other legally appropriate grounds related to the rule
of evidence under which admission is being sought.’’
(Citations omitted; internal quotation marks omitted.)
State v. Miguel C., 305 Conn. 562, 571–72, 46 A.3d
126 (2012).
Regarding the relevant law, ‘‘[i]t is well settled that
. . . [a]n out-of-court statement offered to prove the
truth of the matter asserted is hearsay and is generally
inadmissible unless an exception to the general rule
applies.’’ (Internal quotation marks omitted.) State v.
Carrion, 313 Conn. 823, 837, 100 A.3d 361 (2014); Conn.
Code Evid. § 8-2. An exception exists, however, for
statements made for the purpose of obtaining medical
diagnosis or treatment. Conn. Code Evid. § 8-3 (5). A
hearsay statement is admissible under the medical diag-
nosis or treatment exception when it is ‘‘made for pur-
poses of obtaining a medical diagnosis or treatment
and describing medical history, or past or present symp-
toms, pain, or sensations, or the inception or general
character of the cause or external source thereof, inso-
far as reasonably pertinent to the medical diagnosis or
treatment.’’ Conn. Code Evid. § 8-3 (5).
‘‘The rationale underlying the medical treatment
exception to the hearsay rule is that the patient’s desire
to recover his health . . . will restrain him from giving
inaccurate statements to a physician employed to
advise or treat him.’’ (Internal quotation marks omit-
ted.) State v. Cruz, 260 Conn. 1, 7, 792 A.2d 823 (2002).
‘‘Although [t]he medical treatment exception to the
hearsay rule requires that the statements be both perti-
nent to treatment and motivated by a desire for treat-
ment . . . in cases involving juveniles, our cases have
permitted this requirement to be satisfied inferentially.’’
(Citation omitted; internal quotation marks omitted.)
State v. Telford, 108 Conn. App. 435, 441–42, 948 A.2d
350, cert. denied, 289 Conn. 905, 957 A.2d 875 (2008).
Furthermore, ‘‘[i]n sexual abuse cases, statements made
by the complainant about the identity of the person
causing the injury may be found relevant to proper
diagnosis and treatment.’’ Id., 440.
Moreover, the statement sought to be admitted need
not be made to a physician. State v. Cruz, supra, 260
Conn. 10. ‘‘The rationale for excluding from the hearsay
rule statements that a patient makes to a physician in
furtherance of obtaining medical treatment applies with
equal force to such statements made to other individu-
als within the chain of medical care.’’ (Emphasis
added.) Id. For example, our Supreme Court held in
Cruz that ‘‘statements made by a sexual assault victim
to a social worker who is acting within the chain of
medical care may be admissible under the medical treat-
ment exception to the hearsay rule.’’ (Emphasis added.)
Id.; see also State v. Maldonado, 13 Conn. App. 368,
372, 536 A.2d 600 (holding that hospital security guard
who assisted treating physician in interpreting medical
history of three and one-half year old abuse victim could
testify at trial that victim had identified her father as
abuser), cert. denied, 207 Conn. 808, 541 A.2d 1239(1988). Furthermore, ‘‘statements may be reasonably
pertinent . . . to obtaining medical diagnosis or treat-
ment even when that was not the primary purpose
of the inquiry that prompted them, or the principal
motivation behind their expression.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
State v. Griswold, 160 Conn. App. 528, 552–53, 127 A.3d
189, cert. denied, 320 Conn. 907, 128 A.3d 952 (2015).13
Turning to the facts of the present case, the record
amply supports the trial court’s determination that A’s
statements to Dr. Py were made for the purpose of,
and were reasonably pertinent to, obtaining medical
diagnosis and treatment. In order to treat A, it was
necessary for Dr. Py to ask A about the duration, fre-
quency, method, and extent of the abuse. This informa-
tion was also necessary to determine whether to
transfer A to a hospital that specializes in treating child
victims of sexual abuse. Additionally, this court has held
that statements relating to the identity of the victim’s
abuser are relevant to diagnosis and treatment. State
v. Telford, supra, 108 Conn. App. 440.
Similarly, the statements A made to Dr. Walsh were
properly admitted. A was transferred to Dr. Walsh at
Yale-New Haven Hospital because Dr. Py had deter-
mined that Waterbury Hospital did not have the
resources necessary to treat A’s injuries. A’s statements
relaying the acts committed by the defendant and her
pain level, as well as Dr. Walsh’s observations regarding
the injuries to A’s genitalia, were necessary to deter-
mine the extent of the physical and psychological abuse
as well as the appropriate scope of treatment.
The defendant’s argument that the statements made
by A to Vidro during the forensic interview were improp-
erly admitted because the purpose of the interview was
investigatory is without merit. This court held in Gris-
wold that statements may be admissible even if the
primary purpose of the inquiry is not medical so long
as there is sufficient evidence that the statements were
reasonably pertinent to obtaining medical diagnosis and
treatment. See State v. Griswold, supra, 160 Conn. App.
552–53, 557. In the present case, the state argued that
the purpose of Vidro’s interview was to help Dr. Pav-
lovic better understand the nature of A’s complaint so
that Dr. Pavlovic could conduct a thorough medical
examination of A. The court therefore did not abuse
its discretion in admitting A’s statements to Vidro under
the medical diagnosis and treatment exception to the
hearsay rule after finding that at least one purpose
of the interview was to assist Dr. Pavlovic’s medical
examination of A.
Finally, the defendant argues that A’s statement to J
that the defendant had licked A’s privates was improp-
erly admitted because J took A to the hospital ‘‘for the
purpose of further investigation, not treatment.’’ Even if
we assume, without deciding, that the court improperly
admitted A’s statement to J, we conclude that any error
was harmless.
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful.’’ (Internal
quotation marks omitted.) State v. Rodriguez, 311 Conn.
80, 89, 83 A.3d 595 (2014). ‘‘[A] nonconstitutional error
is harmless when an appellant court has a fair assurance
that the error did not substantially affect the verdict.’’
(Internal quotation marks omitted.) Id. Whether the
defendant was harmed by the trial court’s evidentiary
ruling is guided by a number of factors, such as the
importance of the testimony to the state’s case, whether
the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testi-
mony, the extent of cross-examination permitted, the
impact of the evidence on the trier of fact and the
result of the trial, and the overall strength of the state’s
case. Id.The defendant does not directly argue why the state-
ment A made to J in the car was harmful. Regardless, it
is clear that if any such error was made, it was harmless.
First, A’s statement to J that the defendant had licked
her privates was cumulative of similar statements she
made to others. A repeated that same allegation—spe-
cifically, that the defendant had performed oral sex on
her—to Dr. Py and Vidro, both of whom we have already
determined properly testified to A’s respective state-
ments at trial.
Second, the overall strength of the state’s case was
quite high. A alleged that the defendant had sexually
assaulted her on April 9, 2014. That afternoon, A
reported the abuse. Just hours later, A underwent a
physical examination. The findings of that physical
examination—that A was tearful to the touch, had red-
ness and discharge on her labia, and an abrasion on
the lips of her vagina—corroborated A’s allegations that
she had been sexually assaulted earlier that day. More-
over, A’s allegations were further bolstered by S’s testi-
mony that the defendant had abused her in the same
way when she was A’s age.
On the basis of the foregoing evidence, we conclude
that the trial court did not abuse its discretion by admit-
ting the victim’s statements to Dr. Py, Dr. Walsh, and
Vidro because the statements were reasonably perti-
nent to obtaining medical diagnosis or treatment. We
further conclude that any error the court may have
made in admitting A’s statement to J was harmless.
III
Finally, the defendant claims that the trial court com-
mitted plain error by admitting evidence (1) of the opin-
ions of A’s medical providers that A had been sexually
assaulted, and (2) that improperly vouched for A’s credi-
bility. We disagree.
The following facts are relevant to the defendant’s
claim. At trial, Dr. Py testified generally about the proto-
col Waterbury Hospital follows when a patient comes
in complaining of sexual abuse. Specifically, Dr. Py
testified that she would obtain the history of the patient,
perform a general physical examination, and, if neces-
sary, transfer the patient to ‘‘an appropriate level of
care’’ because ‘‘certain sexual assault cases require spe-
cialists that Waterbury Hospital does not have.’’ Dr. Py
also testified that on April 9, 2014, A came in complain-
ing of sexual abuse and, after taking A’s history and
performing a general physical examination, Dr. Py rec-
ommended that A be transferred to a hospital with a
team of physicians that specialized in treating sexual
abuse. Furthermore, the state offered into evidence A’s
medical record from Waterbury Hospital, which con-
tained Dr. Py’s differential diagnosis of ‘‘sexual assault.’’
The state did not question Dr. Py regarding the contents
of the record.
On cross-examination, defense counsel questioned
Dr. Py about the differential diagnosis. When defense
counsel asked what a differential diagnosis consisted
of, Dr. Py responded, ‘‘it’s just basically something that
we put based on the chief complaint, what it could
be, why she’s here.’’ Dr. Py further clarified that the
differential diagnosis was not conclusive and reflected
only A’s verbal allegation that she had been sexually
assaulted.
Thereafter, the state offered the testimony of Dr.
Walsh. Dr. Walsh testified that Waterbury Hospital had
referred A to Yale-New Haven Hospital ‘‘for evaluation
of a sexual assault.’’ The state asked Dr. Walsh whether
she was able to diagnose A, to which Dr. Walsh
responded that ‘‘based on her history and what she
. . . and her mother told us, and based on her physical
exam findings, it was consistent with sexual assault,
so we gave her the diagnosis of sexual assault with a
small abrasion, a small scrape on her genital area.’’ Dr.
Walsh further testified that she referred A to the Yale
Child Sexual Abuse Clinic for a follow-up because
‘‘[t]hey’re experts in detecting and treating child abuse,’’
and ‘‘have social workers and staff that are skilled in
treating kids that have been sexually assaulted.’’ The
state offered into evidence the medical report generated
by Dr. Walsh.
The state also offered the testimony of Dr. Pavlovic,
who testified that she is board certified in child abuse
pediatrics, which is a ‘‘specialty involving evaluation
of children who are suspected to be abused, either
physically or sexually.’’ When the state asked Dr. Pav-
lovic what she did at the Yale Child Sexual Abuse Clinic,
she responded that ‘‘[m]ost patients seen at the clinic
are victims of sexual abuse—occasionally we will see
children who are victims of physical abuse . . . .’’ Dr.
Pavlovic explained that children complaining of sexual
abuse undergo a physical examination of their genitalia
and anus, including an examination of the hymen if the
child is female. Dr. Pavlovic further testified that A had
a ‘‘normal exam,’’ which was not unusual for a child
that complained of sexual abuse, and that ‘‘ninety-five
percent of the time . . . the exam is normal . . . .’’
The defendant did not object to the admission of any
of this evidence at trial. Nevertheless, the defendant
seeks to prevail on this claim under the plain error
doctrine. ‘‘[T]he plain error doctrine . . . is not . . .
a rule of reviewability. It is a rule of reversibility. That
is, it is a doctrine that this court invokes in order to
rectify a trial court ruling that, although either not prop-
erly preserved or never raised at all in the trial court,
nonetheless requires reversal of the trial court’s judg-
ment, for reasons of policy. . . . In addition, the plain
error doctrine is reserved for truly extraordinary situa-
tions [in which] the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . Plain error
is a doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review. . . . [Thus, an appellant] can-
not 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.’’ (Citations omitted;
internal quotation marks omitted.) State v. Myers, 290
Conn. 278, 289, 963 A.2d 11 (2009).
Even if we were to conclude that this evidence, upon
proper and timely objection, should not have been
admitted because it either (1) constituted improper
opinion testimony on the ultimate issue in the case; see
State v. Favoccia, 306 Conn. 770, 786–87, 51 A.3d 1002(2012) (expert witnesses ordinarily may not express
opinion on ultimate issue of whether complainant has
been sexually abused); or (2) improperly vouched for
the credibility of the complaining witness; see id., 786;
we conclude that any evidentiary impropriety under the
circumstances of this case was not so harmful that a
failure to reverse the judgment would result in mani-
fest injustice.
To begin, the state did not question Dr. Py on direct
examination about the diagnosis of sexual assault con-
tained in her medical record. Rather, it was defense
counsel, on cross-examination, who brought the jury’s
attention to the diagnosis. In doing so, defense counsel
was successfully able to elicit from Dr. Py that the
diagnosis was differential in nature, meaning that it
reflected nothing more than A’s allegation that the
defendant had assaulted her, and that Dr. Py’s examina-
tion of A had not necessarily confirmed that allegation.
Ultimately, the defendant was able to ameliorate signifi-
cantly any harmful effect of the admission of the medi-
cal record, at least to such extent that a manifest
injustice did not occur.
As with Dr. Py, defense counsel’s cross-examination
of Dr. Walsh similarly ameliorated the harmful effect
of her testimony on direct examination that she ‘‘gave
[A] the diagnosis of sexual assault with a small abrasion
. . . .’’ Specifically, defense counsel questioned Dr.
Walsh about the results of A’s physical examination
and was able to elicit from Dr. Walsh that there were
potentially many alternative causes of A’s injuries, such
as wearing tight clothing or self-injury. Defense counsel
also elicited from Dr. Walsh that, although A had exhib-
ited some injuries, she had not suffered more significant
trauma such as bleeding, bruising, or damage to her
hymen.
Moreover, during closing argument, the state did not
rely on the expert opinion of Dr. Py or Dr. Walsh regard-
ing whether A had been sexually assaulted. Rather, to
the extent that the state referred to these witnesses, it
was to emphasize the medical findings of physical injury
to A and that those findings were consistent with her
allegations of sexual assault. Furthermore, during the
defendant’s closing argument, counsel for the defense
made clear to the jury that it was not bound by any of
the physicians’ diagnoses of sexual assault.
Finally, with respect to Dr. Pavlovic, even if we
assume, without deciding, that her testimony improp-
erly vouched for A’s credibility, any error was not so
harmful as to rise to the level of manifest injustice. This
case was not one wherein ‘‘the defendant was convicted
largely on the strength of the complainant’s testimony
standing by itself—a situation that elevates the risk that
inadmissible expert opinion testimony might have the
effect of improperly bolstering the complainant’s credi-
bility.’’ See State v. George A., 308 Conn. 274, 292, 63
A.3d 918 (2013); id., 292–93 (expert witness’ improper
vouching for complainant’s credibility was not so harm-
ful as to require reversal because complainant’s testi-
mony was corroborated by prior misconduct evidence
as well as physical evidence). Rather, the state’s case
against the defendant was quite strong, as discussed in
part II of this opinion. A’s allegations were corroborated
by S’s testimony describing prior similar misconduct
of the defendant, as well as Dr. Walsh’s findings that
A had sustained physical injuries to her genitals after
A alleged that the defendant had sexually assaulted her
earlier that day. For these reasons, we conclude that
any evidentiary impropriety did not result in manifest
injustice requiring reversal of the judgment.
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 use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The defendant later entered into evidence a stipulation concerning the
DNA testing results of the biological sample taken from A shortly after A
reported the abuse. The stipulation provided that the defendant was not
the source of any DNA found in the sample. There was no evidence presented
at trial that any other person was a contributor to the DNA profile obtained
from the testing.
2
No pornography was found on the defendant’s phone.
3
Feola testified that she never had any academic concerns about A prior
to the April 9, 2014 incident. After Feola became aware of A’s complaint,
however, she began noticing behavioral changes in A. Specifically, A had
trouble completing a phonetics lesson one morning. The phonetics lesson
was meant to help the students pronounce the letter ‘‘e,’’ and featured the
name ‘‘Eddie.’’ During the lesson, A began rocking back and forth and crying.
When Feola asked A what was wrong, she responded that ‘‘Eddie was the
name of the bad guy . . . .’’ Feola then switched the name ‘‘Eddie’’ with
the word ‘‘elephant,’’ and A no longer had trouble completing the lesson.
4
The defendant testified that he had not sexually assaulted A or shown
her pornography.
5
Ashley C., as well as the defendant’s neighbor, Fransauch Marleen Cas-
tillo, testified that A had not accused the defendant of sexual misconduct
on April 9, 2014. Rather, Ashley C. and Castillo testified that A only said
that the defendant had done ‘‘nasty stuff’’ to her. Ashley C. further testified
that when she asked A what kind of ‘‘nasty stuff’’ the defendant did, A lifted
up her leg, farted, and said, ‘‘that.’’ Ashley C. also testified that, around the
time the incident occurred, A had been misbehaving, and that she called J
on April 9, 2014, because she had ‘‘had enough of [A’s] behaviors’’—not
because she was concerned that A had been sexually assaulted.
6
Christy C. is not related to the defendant or to Ashley C.
7
The state’s proffer was based on a written statement S made to the police.
8
S testified consistently with the state’s proffer. Specifically, S testified
that: (1) she was the first cousin of the defendant, and J’s sister; (2) she
would often stay overnight at the defendant’s house as a child; (3) the
defendant began abusing her when she was four or five years old by touching
and rubbing her chest and vagina over her clothes; (4) when she was seven,
the defendant began performing oral sex on her, as well as penetrating her
anus with his penis; (5) the defendant showed her pornographic movies;
and (6) the abuse stopped when she was ten years old.
9
The defendant asserts on appeal that, in order to be admissible, evidence
of the defendant’s prior sexual misconduct must also tend to demonstrate
a ‘‘common plan or scheme.’’ See Conn. Code Evid. § 4-5 (c) (‘‘[e]vidence
of other crimes, wrongs or acts of a person is admissible for purposes . . .
such as to prove intent, identity, malice, motive, common plan or scheme,
absence of mistake or accident, knowledge, a system of criminal activity,
or an element of the crime, or to corroborate crucial prosecution testi-
mony’’). The defendant is mistaken. Subsection (b) of § 4-5 establishes a
limited exception to the rule prohibiting the admission of propensity evi-
dence, and specifically permits the trier of fact to consider prior misconduct
evidence to establish that the defendant has a propensity to engage in
aberrant and compulsive sexual behavior. The admissibility of evidence
under this exception is not, by its terms, dependent upon the evidence
meeting any other exception contained in other provisions of the code.
Subsection (c) of § 4-5, on the other hand, permits uncharged misconduct
to be admitted, not as evidence of the defendant’s propensity to engage in
criminal behavior, but as evidence to prove other issues in the case such
as intent, identity, a common plan or scheme, or an element of the crime.
Accordingly, subsections (b) and (c) have fundamentally different purposes,
and evidence sought to be admitted under subsection (b) is admissible even
if it does not meet one of the recognized exceptions in subsection (c).
10
The defendant and Ashley C. did not continuously babysit A from the
fall of 2013 until A reported the abuse on April 9, 2014. From November,
2013 to sometime in February, 2014, J could not afford to pay the defendant
and had another family member babysit A. It is therefore unclear whether
the defendant began abusing A in the fall of 2013 or after she returned to
the defendant’s home in February, 2014.
11
The defendant also contends that the admission of A’s statements vio-
lates the sixth amendment’s confrontation clause. Again, he is mistaken.
A testified and was cross-examined by the defendant. See Crawford v.
Washington, 541 U.S. 36, 51–53, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)
(confrontation clause not violated when declarant testifies and is subject
to cross-examination regarding out-of-court statements).
12
The state also sought to admit A’s statements through a number of
nurses and other medical personnel present during A’s various examinations.
The court ruled that these individuals would not be permitted to testify
under the medical diagnosis and treatment exception because their testi-
mony would be cumulative, and because A did not make the statements to
those persons directly.
13
After our Supreme Court decided State v. Arroyo, 284 Conn. 597, 625–35,
935 A.2d 975 (2007), and State v. Maguire, 310 Conn. 535, 563–71, 78 A.3d
828 (2013), it was unclear whether statements made during a forensic inter-
view were inadmissible unless the primary purpose of the interview was
for medical diagnosis or treatment. Subsequent to those cases, this court
decided in Griswold that, if statements made during a forensic interview
of the child are offered solely under the medical diagnosis and treatment
exception, and the child is subject to cross-examination at trial, then such
statements need only be reasonable pertinent to medical diagnosis and
treatment to be admissible. State v. Griswold, supra, 160 Conn. App. 552–53.
Accordingly, pursuant to Griswold, such statements are admissible even if
the primary purpose of the declarant’s statements was not to obtain medical
diagnosis and treatment. Id.