State v. Gerald A. ( 2018 )

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STATE OF CONNECTICUT v. GERALD A.*
(AC 39126)
Alvord, Bright and Lavery, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree and risk of
injury to a child in connection with his alleged sexual abuse of his minor
daughter, K, the defendant appealed to this court. The defendant had
been charged in separate informations with the sexual abuse of K and
her sister, G. The trial court granted the state’s motion for joinder, and
the cases were tried together. The jury found the defendant not guilty
of the charges related to G. Held:
1. The evidence was sufficient to support the defendant’s conviction of one
of the two counts of sexual assault in the first degree of which he had
been convicted, as it was reasonable for the jury to conclude, beyond
a reasonable doubt, that the defendant had engaged in sexual intercourse
with K by digitally penetrating her vagina with his finger; on the basis
of certain testimony from K that she flinched and clenched because it
hurt when the defendant tried to put his finger inside of her vagina,
the jury reasonably could have inferred that the defendant digitally
penetrated, at the very least, her labia majora, which constituted sexual
intercourse within the meaning of the applicable statute (§ 53a-65 [2]),
and the trial court instructed the jury on the legal definition of sexual
intercourse and that penetration, however slight, was sufficient to com-
plete vaginal intercourse.
2. The trial court did not abuse its discretion when it admitted certain
uncharged misconduct evidence in the form of testimony from K, G and
their mother as to the defendant’s alleged prior physical violence toward
them and whether it could have caused K and G to delay reporting his
sexual abuse: that court correctly determined that the testimony was
relevant and material to the credibility of K and G, who were key
witnesses for the state at trial and on whose credibility the state’s case
hinged, because it provided an explanation for their delay in disclosing
the defendant’s sexual abuse, and defense counsel indicated prior to
trial that the issue of the delayed disclosures by G and K would be
explored at trial; moreover, the trial court properly determined that the
probative value of the challenged testimony was not outweighed by its
prejudicial effect, as it did not tend to arouse the emotions of the
jury or create a distracting side issue, the defendant was not unfairly
surprised by the evidence given that the state filed a motion to introduce
it three months before the start of trial, the matter did not consume an
inordinate amount of time and the defendant had a full opportunity to
cross-examine G and K.
3. The defendant could not prevail on his claim that the trial court improperly
granted the state’s motion for joinder of the two cases against him for
trial, that court having properly exercised its discretion in permitting
the cases to be tried together: the evidence in each case would have
been cross admissible as prior misconduct in the other case and to
show that the defendant had a propensity to engage in aberrant and
compulsive sexual misconduct, as the incidents alleged by both G and
K were not too remote in time from each other and were allegedly
committed on similar persons, and the defendant’s conduct toward G
and K was similar in that his sexual abuse of them began when they
were of a young, prepubescent age, it occurred in the family home when
he was alone with them or when other family members slept and the
abuse involved similar acts committed on each girl, and although G
claimed that the defendant engaged in additional types of sexual miscon-
duct with her and began abusing her at a younger age, that did not
outweigh the numerous similarities in his abuse of G and K or render
his misconduct with respect to G more severe and shocking than his
misconduct with respect to K; moreover, the trial court properly deter-
mined that the prejudicial effect of the evidence did not outweigh its
probative value, and the defendant did not explain how the evidence
would have been unduly prejudicial by showing that it demonstrated
more than his propensity to sexually assault G and K.
4. The trial court did not abuse its discretion when it denied the defendant’s
motion to make an opening statement to the jury; given that much of
the material that defense counsel sought to discuss was covered by his
cocounsel during jury selection, that defense counsel had requested
that the court permit cocounsel to conduct jury selection, that defense
counsel robustly addressed the jury during introductions of counsel,
and the court’s statement that the items that counsel wanted to discuss
in the opening statement could be addressed during, and were more
appropriate for, closing argument, the defendant was unable to show
that the court’s ruling was harmful and was not deprived, in a meaningful
way, from addressing the jury prior to the receipt of evidence.
Argued January 3—officially released July 3, 2018
Procedural History
Two substitute informations charging the defendant
in each case with two counts of the crime of sexual
assault in the first degree and three counts of the crime
of risk of injury to a child, brought to the Superior Court
in the judicial district of Stamford-Norwalk, where the
court, Colin, J., granted the state’s motion for joinder
and denied the defendant’s motion for severance; there-
after, the court denied the defendant’s motion to make
an opening statement; subsequently, the matter was
tried to the jury; thereafter, the court granted the state’s
motion to introduce certain evidence; verdicts and judg-
ment of guilty of two counts of sexual assault in the
first degree and three counts of risk of injury to a child,
from which the defendant appealed to this court.
Affirmed.
Alice Osedach, senior assistant public defender, for
the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, and Maureen V. Ornousky, senior
assistant state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Gerald A., appeals from
the judgment of conviction, rendered after a jury trial,
of two counts of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2) and three
counts of risk of injury to a child in violation of General
Statutes § 53-21 (a) (2). On appeal, the defendant claims
that: (1) there was insufficient evidence presented at
trial to convict him of one count of sexual assault in
the first degree; (2) the trial court improperly admitted
evidence of his prior misconduct; (3) the trial court
improperly granted the state’s motion for joinder of
two separate cases against him; and (4) the trial court
improperly denied his motion to make an opening state-
ment to the jury. We affirm the judgment of the trial
court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
The defendant and A (mother) were married in 1980 in
Port-au-Prince, Haiti. The couple had two daughters
who were born in Haiti, G in 1991 and K in 1993. When
the children were young, the defendant moved to the
United States. The mother and the children remained
in Haiti until 1998, when they moved to Connecticut to
join the defendant.1 The family first lived on Hope Street
in Stamford.
In May, 1999, the mother gave birth to the couple’s
third daughter, R. Before R’s birth, while the mother
was pregnant, the family moved to a two bedroom apart-
ment on Adams Avenue. In 2001, the family moved to
a bigger apartment on Roosevelt Avenue in Stamford.
At about that time, the mother began working two jobs.
At most times during the marriage, the mother worked
and the defendant was unemployed. Because he did
not work outside of the home, the defendant cared for
the children while the mother was at work.
While the family lived on Roosevelt Avenue, the
defendant began sexually abusing K, who was six or
seven years old.2 The first incident that K remembers
occurred on a weekend day, when the mother was not
home. K was preparing to shower, and when she entered
the bathroom, the defendant was there, sitting on the
edge of the bathtub, and talking on the phone. When
K removed her towel and attempted to get into the
bathtub, the defendant stopped her. The defendant laid
K on his lap and touched her vagina.
Another incident, also while the family lived on Roo-
sevelt Avenue, occurred when the family was preparing
to go to a wedding. When K went ‘‘to see what was
taking him so long’’ to get ready, the defendant took
her into his bedroom. The defendant laid K on the bed,
removed her underwear, and began touching her vagina.
The defendant ‘‘tried to put his finger inside’’ K’s vagina,
but she ‘‘flinched ‘cause it hurt,’’ and he stopped. The
defendant put K’s underwear back on, and she left
his bedroom.
Between 2003 and 2004, the family moved to Myano
Lane. On Saturdays, K, who was nine or ten years old
at the time, was responsible for cleaning the bathroom.
One Saturday, the family was preparing to visit with a
relative who was visiting from Pennsylvania. Because
K cleaned the bathroom, she showered last. When K
finished showering, she went into the bedroom that
she shared with her sisters, wearing only a towel. The
defendant was in her room. The defendant laid K down
on the bed and began sucking on her breasts. The defen-
dant then performed oral sex on K. Afterward, K ‘‘felt
so nasty,’’ that she showered again.
On another occasion while the family lived on Myano
Lane, K was preparing to attend church on a Sunday
morning. Wearing only a towel, K went to the bathroom
to shower, but the door was closed. She knocked on
the door, and the defendant opened the door and pulled
her into the bathroom, shutting the door behind them.
The defendant then laid K on his lap and touched her
vagina. Afterward, K showered.
On a fifth occasion, K, who was ten years old at the
time, was reading in her room with the door open on
a Saturday. The defendant walked by and then came
into the room. He asked K what book she was reading,
and then put his hands down her shorts and began
touching her vagina. When the defendant stopped
touching K’s vagina and left the room, K thought that
he was finished, but the defendant returned with Vase-
line on his hand and began touching her vagina again.
Afterward, K washed herself with soap and water.
In May, 2005, the mother purchased a home for the
family in Stratford. The defendant left the family home
in October, 2007. The mother subsequently filed for
divorce.
In 2012, while she was attending college in California,
K disclosed the sexual abuse to G, who recently had
given a voluntary statement to the Stamford Police
Department in which she alleged that the defendant had
sexually abused her during her childhood, beginning at
age three. In connection with G’s allegations, under
docket number CR-XX-XXXXXXX-T, the defendant was
charged with two counts of sexual assault in the first
degree and three counts of risk of injury to a child. K
returned to Connecticut in May, 2012. When she
returned, she went to the Stamford Police Department
and gave a voluntary statement regarding the defen-
dant’s sexual abuse of her. In connection with K’s allega-
tions, under docket number CR-XX-XXXXXXX-T, the
defendant was charged with two counts of sexual
assault in the first degree and three counts of risk of
injury to a child. The state filed a motion for joinder,
which the court granted.
At the time of trial, the state filed a consolidated ten
count long form information charging the defendant
with four counts of sexual assault in the first degree
and six counts of risk of injury to a child. Counts one
through five of the information related to G’s allega-
tions, and counts six through ten related to K’s allega-
tions. The jury found the defendant guilty of counts six
and eight, which charged him with sexual assault in
the first degree, and counts seven, nine and ten, which
charged him with risk of injury to a child. The jury
found the defendant not guilty of counts one through
five. The court sentenced the defendant to a total effec-
tive term of twenty years incarceration, four of which
were a mandatory minimum, followed by twenty years
of special parole. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the evidence pre-
sented at trial was insufficient to convict him of one
count of sexual assault in the first degree. Specifically,
the defendant argues that the state failed to prove that
he engaged in sexual intercourse with K, within the
meaning of § 53a-70 (a) (2), because K did not testify
that he digitally penetrated her vagina. We disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. The state
charged the defendant, in count six of the information,
with sexual assault in the first degree in connection
with an act of abuse he committed against K while
the family was living on Roosevelt Avenue.3 At trial, K
testified that the family was preparing to go to a wed-
ding and that the girls had not yet put on their dresses.
The defendant was still getting dressed, so K went to
the bathroom ‘‘to see what was taking him so long.’’
The defendant took K into his bedroom, laid her on the
bed, removed her underwear, and began touching her
vagina. The defendant ‘‘tried to put his finger inside’’
K’s vagina, but she ‘‘flinched ‘cause it hurt . . . .’’ The
defendant put K’s underwear back on, and she left
his bedroom.
On cross-examination, the following colloquy
occurred:
‘‘[Defense Counsel]: And during any of these inci-
dents, did he penetrate you?
‘‘[K]: Are we talking about [this] one incident?
‘‘[Defense Counsel]: An[y] of . . .
‘‘[K]: Yes, he did when I was living in . . . Roosevelt.
‘‘[Defense Counsel]: Oh.
‘‘[K]: That was the day that, the wedding, he tried to.
‘‘[Defense Counsel]: Well, there’s a difference
between try and penetrate; right?
‘‘[K]: Well, I was six, so.
‘‘[Defense Counsel]: So, you don’t know whether he
penetrated you or not at that incident?
‘‘[K]: He tried to when I was at . . . Roosevelt, but
he couldn’t. . . .
‘‘[Defense Counsel]: There’s a difference between
tried to penetrate and penetrate. Would you agree with
me; right? Try to penetrate and penetrate are two differ-
ent things; are they not?
‘‘[K]: Well, it depends on what you’re talking about.
‘‘[Defense Counsel]: Well, if I attempt to do some-
thing, it’s different from me doing something; right?
‘‘[K]: Yes.
‘‘[Defense Counsel]: Okay. If I try to do something,
it’s different from doing it; right?
‘‘[K]: No, it’s not different.
‘‘[Defense Counsel]: It’s not different?
‘‘[K]: He tried to do something. . . .
‘‘[Defense Counsel]: In any of these occasions did he
penetrate you? . . .
‘‘[K]: I was six years old. He tried to, but I clenched.
It hurt. Like, he didn’t go inside. . . .
‘‘[Defense Counsel]: So, on none of these occasions
did he penetrate you with any part of his body; correct?
‘‘[K]: I just said that he tried to in—Roosevelt.
‘‘[Defense Counsel]: I understand that tried part. But
on one of these occasions was he successful, how is
that, in penetrating you?
‘‘[K]: None of the occasions was he successful.
‘‘[Defense Counsel]: So, he never fully penetrated
you; correct?
‘‘[K]: Successfully.’’
On redirect examination, K testified that the defen-
dant touched her vagina and tried sticking his finger
inside of her vagina. She testified that it hurt ‘‘[t]he
minute he tried to—like the second he tried to.’’ The
prosecutor asked, ‘‘[p]ast your vagina?’’ and K
responded,’’[y]es.’’
We begin with the applicable standard of review and
principles of law that guide our analysis. ‘‘The standard
of review we apply to a claim of insufficient evidence
is well established. In reviewing the sufficiency of the
evidence to support a criminal conviction we apply a
two-part test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [finder
of fact] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Elmer G., 176 Conn. App. 343, 349–50, 170 A.3d 749,
cert. granted on other grounds, 327 Conn. 971, 173 A.3d
952 (2017).
‘‘The jury is entitled to draw reasonable and logical
inferences from the evidence. [T]he jury’s function is
to draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical. . . . [I]n considering the evidence intro-
duced in a case, [j]uries are not required to leave com-
mon sense at the courtroom door . . . nor are they
expected to lay aside matters of common knowledge
or their own observation and experience of the affairs
of life, but, on the contrary, to apply them to the evi-
dence or facts in hand, to the end that their action may
be intelligent and their conclusions correct.’’ (Internal
quotation marks omitted.) State v. Prosper, 160 Conn.
App. 61, 71, 125 A.3d 219 (2015).
The jury found the defendant guilty of one count of
sexual assault in the first degree in connection with the
wedding day incident. ‘‘A person is guilty of sexual
assault in the first degree when such person . . . (2)
engages in sexual intercourse with another person and
such other person is under thirteen years of age and
the actor is more than two years older than such person
. . . .’’ General Statutes § 53a-70 (a). The defendant’s
sole challenge to his conviction under § 53a-70 (a) (2)
is that the state failed to prove beyond a reasonable
doubt that he engaged in sexual intercourse with K.
General Statutes § 53a-65 (2) defines sexual intercourse
as ‘‘vaginal intercourse, anal intercourse, fellatio or cun-
nilingus between persons regardless of sex. . . . Pene-
tration, however slight, is sufficient to complete vaginal
intercourse, anal intercourse or fellatio and does not
require emission of semen . . . .’’ ‘‘[D]igital penetra-
tion, however slight, of the genital opening, is sufficient
to constitute vaginal intercourse.’’ (Internal quotation
marks omitted.) State v. Anthony L., 179 Conn. App.
512, 519, 179 A.3d 1278, cert. denied, 328 Conn. 918,
181 A.3d 91 (2018).
Our Supreme Court’s decision in State v. Albert, 252
Conn. 795, 750 A.2d 1037 (2000), informs our analysis
of the defendant’s sufficiency claim on appeal. In Albert,
our Supreme Court looked to the language and legisla-
tive history of § 53a-65 (2) and held that the genital
opening includes the labia majora,4 and therefore, ‘‘digi-
tal penetration, however slight, of the labia majora is
sufficient penetration to constitute vaginal intercourse
under § 53a-65 (2).’’ (Emphasis in original.) Id., 809. The
defendant in Albert was convicted, inter alia, of sexual
assault in the first degree, in connection with an inci-
dent in which he put his hand in the three year old
victim’s bathing suit and touched her ‘‘inside’’ her
‘‘crotch.’’ (Internal quotation marks omitted.) Id., 797.
When the victim’s pediatrician examined her shortly
thereafter, she observed two scrapes on the inside fold
of the victim’s labia majora. Id., 798.
On appeal, our Supreme Court rejected arguments
by the defendant that § 53a-65 (2) required penetration
beyond the labia majora to at least the labia minora,
and that a ‘‘mere touching of the surface of the labia
majora is not sufficient to constitute penetration
. . . .’’ Id., 813. The court opined: ‘‘As we previously
indicated, we disagree with the defendant’s suggestion
that a defendant must put his finger or fingers ‘beyond
the labia majora’ for his conduct to fall within the defini-
tion of sexual intercourse in § 53a-65 (2).’’5 Id. The court
noted that the ‘‘evidence presented in this case from
which a reasonable jury could have concluded that the
defendant put his finger beyond the victim’s labia
majora’’ included the victim’s testimony that the defen-
dant touched her ‘‘ ‘[i]nside’ ’’ her ‘‘crotch,’’ the scrapes
on the victim’s labia majora, and, most relevant to our
present analysis, the victim’s indication that ‘‘the touch-
ing hurt her . . . .’’ Id.
In light of the evidence presented in this case, it was
reasonable for the jury to conclude that the defendant
engaged in sexual intercourse with K by digitally pene-
trating her vagina. K testified that the defendant ‘‘tried
to put his finger inside’’ of her vagina, but she ‘‘flinched
‘cause it hurt . . . .’’ On cross-examination, defense
counsel repeatedly asked her whether the defendant
‘‘penetrated’’ her vagina, or merely ‘‘tried to.’’ Although
K testified that the defendant never ‘‘[s]uccessfully’’
penetrated her vagina, she also testified that the defen-
dant ‘‘tried to, but I clenched. It hurt. Like, he didn’t
go inside.’’ On the basis of K’s testimony that she
flinched when the defendant tried to put his finger
inside of her vagina because it hurt, she clenched and
it hurt, the jury was free to draw the reasonable infer-
ence that the defendant at least digitally penetrated K’s
labia majora. See State v. Edward B., 72 Conn. App.
282, 296, 806 A.2d 64 (‘‘[s]ignificantly, [the victim] testi-
fied that the defendant hurt her when he placed his
hands under her clothes below her waist and moved
his hands’’), cert. denied, 262 Conn. 910, 810 A.2d 276
(2002).
As we previously have noted, ‘‘[t]he jury’s function
is to draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . . [I]n considering the evidence
introduced in a case, [j]uries are not required to leave
common sense at the courtroom door . . . .’’ (Internal
quotation marks omitted.) State v. Prosper, supra, 160
Conn. App. 71. The court instructed the jury as to the
legal definition of ‘‘sexual intercourse,’’ and informed
it that ‘‘[p]enetration, however slight, is sufficient to
complete vaginal intercourse . . . .’’ The jury was free
to infer, on the basis of this record and its common
sense, that if K ‘‘flinched’’ and ‘‘clenched’’ because ‘‘[i]t
hurt’’ when the defendant ‘‘tried to put his finger inside’’
of her vagina, that the defendant digitally penetrated,
at the very least, K’s labia majora.
Construing the evidence in the light most favorable
to sustaining the jury’s verdict, we conclude that there
was sufficient evidence before the jury from which it
could find beyond a reasonable doubt that the defen-
dant was guilty of sexual assault in the first degree.6
II
The defendant next claims that the trial court improp-
erly admitted evidence of uncharged misconduct in the
form of testimony of the mother, G, and K that the
defendant was physically abusive to them.7 Specifically,
he argues that this evidence had ‘‘no or minimal rele-
vance,’’ was ‘‘clearly prejudicial,’’ and its admission
‘‘denied the defendant of his due process rights to a
fair trial.’’ We are not persuaded.
The following procedural history is relevant to our
resolution of this claim. On December 8, 2014, the state
filed a motion in limine in which it sought, in relevant
part, to present ‘‘evidence of domestic violence, which
was ongoing within the family home.’’ The state argued
that this evidence would not be ‘‘necessarily other mis-
conduct evidence,’’ but bore on G and K’s ‘‘ability and/
or willingness to disclose the abuse to authorities.’’
Alternatively, the state argued that if the court found
this evidence to be other misconduct evidence, it was
admissible pursuant to § 4-5 (c) of the Connecticut Code
of Evidence8 to ‘‘corroborate crucial prosecution testi-
mony of the witnesses’’ and was ‘‘necessary to lay a
foundation for expert testimony.’’ The state claimed
that the proposed evidence was offered for the accept-
able purposes of explaining the behavior of G and K,
and laying a foundation for expert testimony that would
explain why they did not disclose the alleged sexual
abuse until adulthood, and that the probative value of
this evidence on these issues outweighed its prejudi-
cial effect.
On January 12, 2015, the defendant filed a memoran-
dum of law in opposition to the state’s motion in limine,
in which he argued that the state was ‘‘merely speculat-
ing that any alleged domestic abuse in the household
may have delayed or impacted the witnesses’ ability to
disclose the alleged abuse to authorities.’’ The defen-
dant argued that any evidence of physical abuse was
irrelevant to the current charges and was more prejudi-
cial than probative. The defendant noted that the claims
of physical abuse were unsubstantiated by corroborat-
ing evidence.
The court held a hearing on January 15, 2015.9 On
January 20, the court issued a memorandum of decision,
in which it deferred ruling on the motion until the time
of trial. At trial, outside the presence of the jury, the
state proffered that the mother, G, and K would testify
that during the time they lived with the defendant,
‘‘there was frequent domestic violence in the home.’’
Specifically, the state anticipated that the mother would
testify about domestic violence that began while the
family was living in Haiti and increased when the family
moved to the United States. The state represented that
the mother also would testify that she observed the
defendant discipline the children by striking them with
a belt when they were naked and that the defendant
would throw things at her. The state further represented
that the mother would testify about two specific inci-
dents: one in which the police were called to the house,
but the mother did not want the defendant arrested,
and a second one in which the defendant injured her
and she went to a hospital, but did not report that the
defendant had assaulted her.
The state also represented that G and K would testify
about the ‘‘discipline tactics’’ of the defendant, that
they often heard screaming and yelling between the
defendant and their mother, and that they observed
their mother injured after some of these screaming and
yelling incidents. The state also proffered evidence
about G and K’s half brother, who reported to the
Department of Children and Families (department) that
he had been assaulted by the defendant. The state repre-
sented that there would be testimony that the defen-
dant, and possibly the mother, instructed G and K not
to cooperate with the department’s investigation, and
that their half brother was sent back to Haiti as punish-
ment. The state represented that it did not intend to
‘‘go into too much detail’’ regarding the physical abuse,
and argued that because the alleged physical abuse was
happening contemporaneously with the sexual abuse,
this evidence was necessary to ‘‘complete the story of
what was happening in the home at the time.’’
Defense counsel argued that the alleged physical vio-
lence could not be admitted as bearing on G and K’s
late disclosures, because the defendant left the family
home in 2007 and the disclosures were not made until
2012. Defense counsel noted that the defendant was
not living in Connecticut in 2012, and argued that due
to the defendant’s absence from the state at the time
that G and K disclosed, they were not ‘‘under an immi-
nent fear of him at that point,’’ and were ‘‘not in immi-
nent danger at that point.’’ The defendant further argued
that because this was a case alleging sexual assault,
physical violence was irrelevant to the crimes charged
and had no probative value. As to the proffered testi-
mony regarding the department’s investigation, defense
counsel argued that because he believed that the half
brother still resided in Haiti, he would be unable to
call him as a witness to refute that testimony. Defense
counsel argued that the proffered evidence was prejudi-
cial, had no probative value, constituted ‘‘bad character
evidence,’’ and that despite any limiting instruction the
court might give, the jury would use the evidence to
conclude that the defendant was ‘‘a bad guy.’’
Defense counsel conceded that he planned to cross-
examine the witnesses on the issue of their late disclo-
sures. When the court asked whether such questioning
on cross-examination would open the door to this evi-
dence, defense counsel responded that in light of the
fact that G and K disclosed the sexual abuse five years
after the defendant moved out of the family home, he
hoped that it would not.10
The court ruled orally on the state’s motion. First,
on the issue of whether the evidence properly was char-
acterized as uncharged misconduct evidence, the court
observed that it was ‘‘not so sure it is uncharged miscon-
duct evidence, as opposed to evidence being offered
to explain the reasons why the complainants waited
for years to report the alleged assaults. Rather, it’s
related to their credibility.’’ The court relied on two
cases, State v. Cruz, 56 Conn. App. 763, 746 A.2d 196
(2000), aff’d, 260 Conn. 1, 792 A.2d 823 (2002),11 and
State v. Daniels, 42 Conn. App. 445, 681 A.2d 337, cert.
denied, 239 Conn. 928, 683 A.2d 397 (1996),12 and ruled
that ‘‘as a basis to aid the jury, perhaps, if it believes
the testimony, in assessing the credibility of the two
alleged victims in this case, under State v. Cruz [supra,
763] and State v. Daniels [supra, 445], that evidence
is admissible.’’
The court further ruled that even if this evidence
were categorized as uncharged misconduct evidence, it
would be admissible under § 4-5 (c) of the Connecticut
Code of Evidence to corroborate crucial prosecution
testimony, specifically, testimony about why G and K
waited to report the alleged sexual abuse. The court
noted that defense counsel was free to explore on cross-
examination the period of delay between when the
defendant left the home and when G and K reported
the sexual abuse, as ‘‘that argument goes to the weight
of the proposed testimony, not its admissibility.’’ The
court further noted that defense counsel twice indicated
that he would explore the issue of the delayed disclo-
sure on cross-examination.
The court concluded that the probative value of the
evidence outweighed its prejudicial effect, but noted
its intent to give the jury a limiting instruction
explaining that the evidence was to be used only for
the purpose of assessing the credibility of G and K as
to why they delayed in reporting. The court cautioned
counsel that it did not want ‘‘a collateral trial on the
details of the claims= they’re going to make about what
happened to them.’’ The court also ruled that evidence
about G and K’s half brother was inadmissible, and
limited the physical violence evidence to testimony
from the mother, G, and K about any incidents of alleged
violence that they personally witnessed or that were
inflicted on them.
During the state’s case-in-chief, G testified that while
she lived with the defendant, there were incidents when
he hit her. She testified that, more than once, a ‘‘couple
times a year,’’ the defendant would hit her with a belt.
She described one incident that occurred while the
family was living on Hope Street: ‘‘I was going to school,
and we—when we go to school, he drives us, and we
have to like, give him a kiss on the cheek. And for some
reason, that day I didn’t want to. So, when I got home
later on, he took off my underwear and my pants, and
he hit me with the belt because I didn’t kiss him on the
cheek when he dropped me off at school.’’ Immediately
following this testimony, the court gave a limiting
instruction to the jury.13 G further testified that she did
not disclose this to a teacher because she was scared
that the defendant would kill her mother, and that on
one occasion, after he had sexually abused G, he told
her to keep her ‘‘mouth shut’’ about the sexual abuse
and that if she told anyone about the sexual abuse,
‘‘bad things were going to happen.’’ Although G never
witnessed the defendant hit her mother, she testified
that she heard arguments between her mother and the
defendant and, after these arguments, observed swell-
ing on her mother’s face. Immediately following this
testimony, the court gave a limiting instruction.14 G also
testified that she observed the defendant hit K with a
belt as a form of discipline. She also testified that her
mother never protected her and K from being hit. Fol-
lowing this testimony, the court again gave a limiting
instruction.15
K testified that the defendant was physically abusive
toward her. She recalled a specific incident that
occurred on Roosevelt Avenue: ‘‘On one day I was living
in . . . Roosevelt and I was eating cereal and I didn’t
want to finish eating the cereal or something or I didn’t
like the cereal. And he said that I had to finish eating
it. And so I just sat there. He turned off all the lights
in the kitchen and I just sat there in the dark and I was
crying. And then, he came back into the kitchen and
took the bowl of cereal away. And then, when I got up
to go, he smacked me across my face so hard that I slid
from the kitchen table all the way against the cabinets
in the kitchen. And the kitchen was pretty big, too.’’
She further testified that the defendant disciplined her
and G by hitting them, smacking them across the face,
hitting them on the hands, and sometimes, making them
strip naked and hitting them with a belt or the back of
his hand. At the conclusion of K’s testimony, the court
gave a limiting instruction to the jury.16
The mother testified that while she was married to
the defendant, she observed him hitting the children.
She also testified that during their marriage, she and
the defendant would argue. She described one incident
in which an argument turned violent and she sustained
an injury to her face. Immediately following this testi-
mony, the court gave a limiting instruction to the jury.17
The mother then testified that when the defendant disci-
plined G and K, he would do so with a belt. Immediately
following this testimony, the court informed the jury:
‘‘In the instruction I just gave you on the last piece of
testimony goes for this testimony as well.’’ See footnote
16 of this opinion.
The state also presented the testimony of Dr. Larry
Rosenberg, a clinical psychologist and an expert in child
psychology, who testified that the majority of children
who are sexually abused in childhood do not disclose
the abuse until adulthood. He opined that this is usually
caused by fear, ‘‘but there are different types of fears.’’
Dr. Rosenberg explained that a victim may fear physical
threat, even where those threats have not been made
explicitly by the abuser, as a result of domestic violence
or physical abuse that has occurred in the home. He
also opined that children may fear ‘‘a threat to the
nonoffending parent with regard to the offending
parent.’’
After the close of evidence, the court charged the
jury with respect to this evidence as follows: ‘‘You will
recall on occasion I have ruled that some testimony
and evidence have been allowed for a limited purpose.
Any testimony or evidence which I identified as being
limited to a purpose, you will consider it only as it
relates to the limits for which it was allowed, and you
shall not consider such testimony and evidence in find-
ing any other facts as to any other issue.
***
‘‘Other alleged misconduct of the defendant, limited
use instruction. The state has offered evidence of other
acts of misconduct of the defendant. Specifically, the
state offered evidence of the defendant’s allegedly being
physically abusive toward one or more of his children
and their mother. This evidence was admitted for a
limited purpose only. The evidence is not being admit-
ted to prove any bad character, propensity or criminal
tendencies of the defendant. Such evidence, if you
believe it, is being admitted solely to explain why the
alleged victims delayed in their reporting of the sex-
ual—alleged sexual abuse. You may not consider such
evidence as establishing a predisposition on the part
of the defendant to commit any of the crimes charged
or to demonstrate any criminal propensity.
‘‘You may consider such evidence if you believe it and
further find that it logically, rationally and conclusively
supports the issues for which it was offered by the
state, but only as it may bear on the issue of the alleged
victims delayed reporting of their claimed abuse. This
evidence cannot be used by you for any other purpose.
‘‘On the other hand, if you do not believe such evi-
dence or, even if you do, if you find that it does not
logically, rationally and conclusively support the issue
for which it was offered by the state, namely, to explain
the delayed reporting by the alleged victims, then you
may not consider that testimony for any purpose. You
may not consider evidence of other misconduct of the
defendant for any purpose other than the ones I’ve just
told you because it may predispose your mind uncriti-
cally to believe that the defendant may be guilty of the
offense here charged merely because of the alleged
other misconduct. For this reason, you may consider
this evidence only on the limited issue I described and
for no other purpose.’’
We begin with the applicable standard of review and
principles of law that guide our analysis. ‘‘We review
the trial court’s decision to admit evidence, if premised
on a correct view of the law . . . for an abuse of discre-
tion.’’ (Internal quotation marks omitted.) State v.
Estrella J.C., 169 Conn. App. 56, 93, 148 A.3d 594 (2016).
‘‘As a general rule, evidence of prior misconduct is
inadmissible to prove that a defendant is guilty of the
crime of which he is accused. . . . Nor can such evi-
dence be used to suggest that the defendant has a bad
character or a propensity for criminal behavior.’’ (Inter-
nal quotation marks omitted.) State v. Martin V., 102
Conn. App. 381, 385, 926 A.2d 49, cert. denied, 284 Conn.
911, 931 A.2d 933 (2007); see also Conn. Code Evid. § 4-
5 (a). ‘‘In order to determine whether such evidence is
admissible, we use a two part test. First, the evidence
must be relevant and material to at least one of the
circumstances encompassed by the exceptions. Sec-
ond, the probative value of [the prior misconduct] evi-
dence must outweigh [its] prejudicial effect . . . . The
primary responsibility for making these determinations
rests with the trial court. We will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discre-
tion. . . .
‘‘Under the first prong of the test, the evidence must
be relevant18 for a purpose other than showing the
defendant’s bad character or criminal tendencies. . . .
Recognized exceptions to this rule have permitted the
introduction of prior misconduct evidence 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 testimony. Conn.
Code Evid. § 4-5 [(c)].’’ (Citations omitted; internal quo-
tation marks omitted; footnote in original.) State v. Mar-
tin V., supra, 102 Conn. App. 385–86.
‘‘The official commentary to § 4-5 (c) states in rele-
vant part: Admissibility of other crimes, wrongs or acts
evidence is contingent on satisfying the relevancy stan-
dards and balancing test set forth in Sections 4-1 and
4-3, respectively. For other crimes, wrongs or acts evi-
dence to be admissible, the court must determine that
the evidence is probative of one or more of the enumer-
ated purposes for which it is offered, and that its proba-
tive value outweighs its prejudicial effect. . . . The
purposes enumerated in subsection (c) for which other
crimes, wrongs or acts evidence may be admitted are
intended to be illustrative rather than exhaustive. Nei-
ther subsection (a) nor subsection (c) precludes a court
from recognizing other appropriate purposes for which
other crimes, wrongs or acts evidence may be admitted,
provided the evidence is not introduced to prove a
person’s bad character or criminal tendencies, and the
probative value of its admission is not outweighed by
any of the Section 4-3 balancing factors. . . . Conn.
Code Evid. § 4-5 (c), commentary.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) State v. Estrella
J.C., supra, 169 Conn. App. 96.
Here, the court determined that the challenged
uncharged misconduct evidence showing that the
defendant was physically abusive to his wife and chil-
dren was relevant to the issue of the credibility of G
and K, particularly as to why they delayed in reporting
the sexual abuse. The challenged testimony was mate-
rial to this issue, as G and K were the state’s key wit-
nesses at trial, and the state’s case hinged on their
credibility. As the court noted, defense counsel indi-
cated both during argument and in a pretrial filing that
she would explore the issue of G and K’s delayed disclo-
sures. The credibility of both G and K, and their behav-
ior, therefore, would be called into question by the
defense. We note the well recognized principle that
‘‘[i]ssues of credibility typically are determinative in
child sexual abuse prosecutions. This is so because in
sex crime cases generally, and in child molestation
cases in particular, the offense often is committed sur-
reptitiously, in the absence of any neutral witnesses.’’
(Internal quotation marks omitted.) Id., 98. We conclude
that this uncharged misconduct evidence provided an
explanation for why G and K delayed in disclosing the
sexual abuse and, therefore, the court was correct in
its determination that it was relevant because it bore
on the important issue of their credibility as witnesses.19
We now turn to the trial court’s determination that
the probative value of this evidence outweighed its prej-
udicial effect. ‘‘Section 4-3 of the Connecticut Code of
Evidence . . . provides that [r]elevant evidence may
be excluded if its probative value is outweighed by the
danger of unfair prejudice or surprise, confusion of the
issues, or misleading the jury, or by considerations of
undue delay, waste of time or needless presentation of
cumulative evidence. [T]he determination of whether
the prejudicial impact of evidence outweighs its proba-
tive value is left to the sound discretion of the trial
court judge and is subject to reversal only where an
abuse of discretion is manifest or injustice appears to
have been done. . . . [Our Supreme Court] has pre-
viously enumerated situations in which the potential
prejudicial effect of relevant evidence would counsel
its exclusion. Evidence should be excluded as unduly
prejudicial: (1) where it may unnecessarily arouse the
jury’s emotions, hostility or sympathy; (2) where it may
create distracting side issues; (3) where the evidence
and counterproof will consume an inordinate amount
of time; and (4) where one party is unfairly surprised
and unprepared to meet it.’’ (Internal quotation marks
omitted.) Id., 98–99.
We conclude that the court properly determined that
the probative value of the challenged testimony was
not outweighed by its prejudicial effect. This uncharged
misconduct evidence did not tend to arouse the emo-
tions of the jury, especially in light of the nature of the
crimes with which the defendant had been charged,
crimes that alleged his sexual abuse of his daughters.
See id., 99; see also State v. Vega, 259 Conn. 374, 398,
788 A.2d 1221 (‘‘evidence of dissimilar acts is less likely
to be prejudicial than evidence of similar or identical
acts’’ [internal quotation marks omitted]), cert. denied,
537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002).
This lack of prejudice is especially true in light of the
fact that the jury found the defendant guilty of only five
counts of a ten count information, suggesting that the
evidence did not ‘‘most certainly . . . arouse the emo-
tions and passions of the jury,’’ to the extent that the
defendant suggests. The evidence also did not create a
distracting side issue, as it ‘‘pertained to the credibility
of the state’s key witness[es], which was the essence
of the state’s case.’’ State v. Estrella J.C., supra, 169
Conn. App. 99–100. The evidence and counterproof of
it did not consume an inordinate amount of time, as it
occurred at the beginning of trial. Furthermore, the
defendant cannot claim that he was unfairly surprised
by this evidence. The state filed a motion in limine three
months prior to the start of trial, in which it notified
the defendant of its intention to elicit this testimony;
see id., 100; and, at argument on January 15, 2015, repre-
sented to the court and defense counsel the anticipated
substance of this testimony. See footnote 8 of this opin-
ion. Finally, the defendant had a full opportunity to
cross-examine G and K on whether the physical vio-
lence years before could have actually caused them to
delay reporting.
The court did not abuse its discretion in admitting
the uncharged misconduct evidence.
III
The defendant next claims that the court improperly
granted the state’s motion for joinder of the two sepa-
rate cases against him for trial. Specifically, the defen-
dant argues that he was substantially prejudiced by the
joinder of two informations, one charging the defendant
in connection with allegations of abuse made by G and
one charging the defendant in connection with allega-
tions of abuse made by K, because both cases
‘‘depended solely on the credibility of the witnesses,’’
and ‘‘the fact that there were two accusers increased
their credibility.’’ The defendant further argues that
‘‘none of the extreme prejudicial effect caused by the
joinder of the cases had been mitigated because the
trial court failed to give any cautionary instructions.’’
We disagree.
The following procedural history is relevant to our
resolution of this claim. The state initially charged the
defendant in two separate informations, one containing
the counts related to G’s allegations of abuse, and one
containing the counts related to K’s allegations of abuse.
On December 8, 2014, pursuant to Practice Book §§ 41-
3 and 41-19, the state filed a motion for joinder of the
cases for trial. In its motion, the state argued that the
defendant would not be substantially prejudiced by join-
der because the evidence satisfied the factors enunci-
ated by our Supreme Court in State v. Boscarino, 204
Conn. 714, 529 A.2d 1260 (1987), or alternatively,
because the evidence was cross admissible pursuant
to this court’s decision in State v. Webb, 128 Conn. App.
846, 19 A.3d 678, cert. denied, 303 Conn. 907, 32 A.3d
961 (2011). The state acknowledged that the court could
‘‘give a jury instruction at the time of the proposed
testimony and at the conclusion of trial so that the
evidence will be used for its proper purpose.’’
On January 12, 2015, the defendant filed a motion in
which he requested that the court ‘‘sever the two above
docket numbers and deny the state’s motion for join-
der.’’ The defendant also filed a memorandum of law
in opposition to, in relevant part, the state’s motion for
joinder, in which he argued that ‘‘by joining these cases
for trial there would be extreme prejudice to the defen-
dant in that there would be [a] strong likelihood of
the introduction of overlapping evidence, which could
improperly lead an otherwise fair and impartial jury to
convict the defendant based on cumulative evidence
introduced that has no relevance or bearing to an
offense of misconduct charged in each information.’’
The court heard argument on the motion for joinder
on January 15, 2015. In a memorandum of decision, the
court granted the state’s motion for joinder, overruled
the defendant’s objection to the motion for joinder, and
denied the defendant’s motion to sever. The court first
concluded that the state had met its burden of proving
that the defendant would not be substantially preju-
diced by the joinder because the evidence would be
cross admissible at separate trials pursuant to § 4-5 (b)
of the Connecticut Code of Evidence and our Supreme
Court’s decision in State v. DeJesus, 288 Conn. 418, 953
A.2d 45 (2008). The court then considered the Boscar-
ino factors. The court concluded that the defendant
would not be unfairly prejudiced by the joinder, and
ordered jury selection to begin on February 4, 2015.
On February 4, the state filed a ten count long form
information, which charged five counts as to G’s allega-
tions of abuse and five counts as to K’s allegations of
abuse. Before evidence began, the court instructed the
jury that ‘‘[e]ach charge against the defendant is set
forth in the information as a separate count, and you
must consider each count separately in deciding this
case.’’
The state called G to testify first. She testified that
the defendant began sexually abusing her in Haiti. She
testified that, beginning when she was three years old,
when the defendant returned to Haiti to visit the family,
while the rest of the family was asleep, he would place
her on his lap, on top of his shorts, and push her against
his penis.
She also testified about five specific incidents of
abuse. First, she testified that while the family was
living on Adams Avenue, the defendant would come
into her room early in the morning while everyone was
asleep, remove her underwear, rub his penis on her
vagina until he ejaculated, and then clean her with a wet
cloth. Second, she described an incident on Roosevelt
Avenue that occurred when she was approximately
twelve years old. She testified that the defendant came
into the room that G was in with her sisters, brought
her into his bedroom, locked the door, removed her
shorts and underwear, held her down, and engaged in
penile-vaginal intercourse with her. Third, G testified
about a time on Roosevelt Avenue when the defendant
took her into his bedroom, locked the door, laid her
down, took off her pants and underwear, and performed
oral sex on her. Fourth, she testified about an incident
on Roosevelt Avenue when the defendant French-
kissed her and touched her breasts. Finally, she testified
that when the family was living on Myano Lane, the
defendant came into her room, locked the door, lay
down next to her on the bed, and performed oral sex
on her.
While the family lived on Myano Lane, G began men-
struating. She was thirteen years old. G testified that
once she began menstruating, ‘‘the molestation
decreased drastically, and it was just mostly touching,
fondling; there was no penis to vagina touching any-
more after I started menstruating.’’
In addition to K’s testimony about the five charged
incidents of abuse, as set forth in the facts and part I
of this opinion, K also testified that when the family
lived in the Stratford home, the defendant would touch
her vagina with his hand, suck on her breasts, and
perform oral sex on her. She testified that this continued
until she began menstruating when she was eleven
years old.
Prior to the conclusion of the state’s case-in-chief,
the court instructed the jury as follows: ‘‘[J]ust to
remind you—and you’ll hear this instruction again later
on in the case, at the end of the case, that you are going
to be required to independently evaluate each and every
[count] of the information; so, there’s ten. You’re going
to have to evaluate each one independently and sepa-
rately and make an independent determination of your
verdict on each count independently from the others.
So, I want to remind you of that.’’ In its final instructions,
the court instructed the jury that it must make a ‘‘sepa-
rate and independent determination’’ of guilt as to each
of the ten counts, it must deliberate on each count
separately, the total number of counts charged did not
add to the strength of the state’s case, and that ‘‘[e]ach
count is a separate entity.’’20 After deliberation, the jury
returned a verdict of not guilty on counts one through
five of the information, all counts related to the allega-
tions of abuse alleged by G, and returned a verdict of
guilty on counts six through ten of the information, all
counts related to the allegations of abuse made by K.
We begin with the applicable standard of review and
principles of law that guide our analysis. ‘‘The principles
that govern our review of a trial court’s ruling on a
motion for joinder or a motion for severance are well
established. Practice Book § 41-19 provides that, [t]he
judicial authority may, upon its own motion or the
motion of any party, order that two or more informa-
tions, whether against the same defendant or different
defendants, be tried together. . . . In deciding whether
to [join informations] for trial, the trial court enjoys
broad discretion, which, in the absence of manifest
abuse, an appellate court may not disturb. . . . The
defendant bears a heavy burden of showing that [join-
der] resulted in substantial injustice, and that any
resulting prejudice was beyond the curative power of
the court’s instructions.’’ (Internal quotation marks
omitted.) State v. Payne, 303 Conn. 538, 543–44, 34 A.3d
370 (2012).
‘‘A long line of cases establishes that the paramount
concern is whether the defendant’s right to a fair trial
will be impaired. Therefore, in considering whether
joinder is proper, this court has recognized that, where
evidence of one incident would be admissible at the
trial of the other incident, separate trials would provide
the defendant no significant benefit. . . . Under such
circumstances, the defendant would not ordinarily be
substantially prejudiced by joinder of the offenses for
a single trial. . . . Accordingly, we have found joinder
to be proper where the evidence of other crimes or
uncharged misconduct [was] cross admissible at sepa-
rate trials. . . . Where evidence is cross admissible,
therefore, our inquiry ends.
‘‘Substantial prejudice does not necessarily result
from [joinder] even [if the] evidence of one offense
would not have been admissible at a separate trial
involving the second offense. . . . Consolidation
under such circumstances, however, may expose the
defendant to potential prejudice for three reasons: First,
when several charges have been made against the defen-
dant, the jury may consider that a person charged with
doing so many things is a bad [person] who must have
done something, and may cumulate evidence against
him . . . . Second, the jury may have used the evi-
dence of one case to convict the defendant in another
case even though that evidence would have been inad-
missible at a separate trial. . . . [Third] joinder of
cases that are factually similar but legally unconnected
. . . present[s] the . . . danger that a defendant will
be subjected to the omnipresent risk . . . that
although so much [of the evidence] as would be admissi-
ble upon any of the charges might not [persuade the
jury] of the accused’s guilt, the sum of it will convince
them as to all. . . .
‘‘[Accordingly, the] court’s discretion regarding join-
der . . . is not unlimited; rather, that discretion must
be exercised in a manner consistent with the defen-
dant’s right to a fair trial. Consequently, [in State v.
Boscarino, supra, 204 Conn. 722–24] we have identified
several factors that a trial court should consider in
deciding whether a severance or [denial of joinder] may
be necessary to avoid undue prejudice resulting from
consolidation of multiple charges for trial. These factors
include: (1) whether the charges involve discrete, easily
distinguishable factual scenarios; (2) whether the
crimes were of a violent nature or concerned brutal or
shocking conduct on the defendant’s part; and (3) the
duration and complexity of the trial. . . . If any or all
of these factors are present, a reviewing court must
decide whether the trial court’s jury instructions cured
any prejudice that might have occurred.’’ (Citations
omitted; internal quotation marks omitted.) State v.
LaFleur, 307 Conn. 115, 155–56, 51 A.3d 1048 (2012).
We begin our analysis by determining whether the
evidence in the cases concerning G and K was cross
admissible, such that evidence in each case would have
been admissible as prior misconduct in the other case.
‘‘[A]s 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) . . . .
In State v. DeJesus, supra, 288 Conn. 470, 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 propensity to engage in aberrant and compulsive
criminal sexual behavior. . . . 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) of the Connecticut Code of Evidence
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 criminal sexual behavior
with which he or she is charged.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Daniel W.,
180 Conn. App. 76, 88–89, 182 A.3d 665, cert. denied,
328 Conn. 929, 182 A.3d 638 (2018). Such evidence is
admissible if: ‘‘(1) the case involves aberrant and com-
pulsive sexual misconduct; (2) the trial court finds that
the evidence is relevant to a charged offense in that
the other sexual misconduct is not too remote in time,
was allegedly committed upon a person similar to the
alleged victim, and was otherwise similar in nature and
circumstances to the aberrant and compulsive sexual
misconduct at issue in the case; and (3) the trial court
finds that the probative value of the evidence outweighs
its prejudicial effect.’’ Conn. Code Evid. § 4-5 (b).
‘‘In assessing the relevancy of such evidence, and
in balancing its probative value against its prejudicial
effect, the trial court should be guided by this court’s
prior precedent construing the scope and contours of
the liberal standard pursuant to which evidence of
uncharged misconduct previously was admitted under
the common scheme or plan exception. Lastly, prior to
admitting evidence of uncharged sexual misconduct
under the propensity exception . . . the trial court
must provide the jury with an appropriate cautionary
instruction . . . .
‘‘Recognizing the difficulties of balancing the proba-
tive value of the evidence against its prejudicial effect,
we have held that the trial court’s decision will be
reversed only whe[n] abuse of [its] discretion is mani-
fest or whe[n] an injustice appears to have been done.
. . . On review by this court, therefore, every reason-
able presumption should be given in favor of the trial
court’s ruling.’’ (Citations omitted; internal quotation
marks omitted.) State v. Devon D., 321 Conn. 656, 666,
138 A.3d 849 (2016).
Applying these standards in the present case, we con-
clude that the trial court properly exercised its discre-
tion in permitting the cases to be tried together because
the evidence in both cases was cross admissible. On
appeal, the defendant does not challenge the trial
court’s finding that the cases involved aberrant and
compulsive sexual misconduct, so we turn first to the
question of relevancy. It is undisputed that the incidents
alleged by both G and K were not too remote in time
from each other, and were allegedly committed upon
similar persons (i.e., the defendant’s prepubescent
daughters). See, e.g., id., 667 (‘‘[a]ll three victims are
prepubescent children of similar age who are the defen-
dant’s biological children’’). The gravamen of the defen-
dant’s argument on appeal is that his conduct with
respect to G and K was not sufficiently similar in nature
and circumstances. Specifically, he argues that G’s
claims were more severe and ‘‘of a slightly different
nature’’ than K’s claims. We disagree.
With respect to the similarity of conduct, our
Supreme Court repeatedly has recognized that it ‘‘need
not be so unusual and distinctive as to be like a signature
. . . [but] [r]ather, the question is whether the evidence
is sufficiently similar to demonstrate a propensity to
engage in the type of aberrant and compulsive criminal
sexual behavior with which he . . . [was] charged.’’
(Citation omitted; internal quotation marks omitted.)
Id., 668. We find our Supreme Court’s decision in State
v. Devon D., supra, 321 Conn. 656, instructive on this
issue. There, the defendant was charged with crimes
in connection with the sexual abuse of his three chil-
dren, one girl and two boys. Id., 658–59. On appeal, the
defendant argued that the trial court erred in denying
his motion to sever the three cases against him. Id.,
662. Our Supreme Court rejected that argument and
held that pursuant to DeJesus, the evidence concerning
all three of the defendant’s children was cross admissi-
ble. Id., 666.
The court in Devon D. concluded that the defendant’s
conduct as to each victim was ‘‘sufficiently similar to
demonstrate that he had a propensity toward aberrant
sexual behavior.’’ Id., 667. The daughter claimed that
the defendant placed his penis on her stomach; touched
her vagina with his fingers; poured lotion on her body;
ejaculated on her body; inserted his finger into her
vagina while bathing her and using a rag, causing her
to bleed; forced her to watch a pornographic movie
with her siblings; warned her not to tell anyone about
the abuse; penetrated her vaginally with his penis;
attempted to penetrate her anally with his penis; forced
her to perform fellatio on him, causing her to vomit;
put vinegar, or a substance that stung, on her vagina
and in her ear; and tried to put his penis in her ear,
causing it to bleed. Id., 659–60. One of the sons claimed
that the defendant: inserted a rag-covered finger into
his anus; rubbed his penis; forced him to watch a porno-
graphic movie with his siblings; and warned him not
to tell anyone about the abuse. Id., 660. The other son
claimed that the defendant inserted his finger into his
anus, and that he had been using a rag but the rag
‘‘ ‘slipped’ ’’; squeezed his penis; pulled back his fore-
skin; made him shower with his brother; forced him
to watch a pornographic movie with his siblings; and
warned him not to tell his mother about the bathing.
Id. The abuse occurred during the defendant’s unsuper-
vised visitation with the children at his home or his
mother’s home. Id., 667.
As to the similarity of the conduct with respect to
each of the victims, the court noted the following simi-
larities: (1) the abuse occurred when the defendant had
time alone with each of the victims; (2) the defendant
had forced all of the victims to watch a pornographic
movie; (3) the defendant abused each victim in the
shower under the guise of bathing them with a rag; (4)
the purported bathing of the victims resulted in digital
vaginal or anal penetration; (5) the defendant touched
each of the victims inappropriately when he was not
using the rag; and (6) the defendant warned each of
the victims not to tell anyone about his conduct. Id.,
667–68. As to the fact that his abuse of his daughter
varied from the abuse of his sons, the court concluded:
‘‘As we discussed previously in this opinion, the defen-
dant engaged in multiple types of similar conduct with
all three victims. The fact that the defendant was
unclothed during his abuse of [his daughter] and
engaged in additional types of sexual misconduct with
her does not outweigh these numerous similarities or
erode the probative value of that evidence.
‘‘In addition, the fact that the defendant engaged in
additional types of sexual misconduct with [his daugh-
ter] does not render his conduct with her so much more
severe and shocking than his conduct with [his sons]
that severance is required. As the trial court correctly
noted, the allegations in all three cases were shocking,
and the defendant’s inappropriate touching and digital
penetration of all three victims can only be character-
ized as severe. The fact that the defendant engaged in
additional types of sexual misconduct with [his daugh-
ter] does not render the defendant’s conduct toward
[his sons] any less severe. Even if the conduct toward
[the daughter] was significantly more egregious than
his conduct toward [the sons], however, this court pre-
viously has upheld the admission of uncharged sexual
misconduct when it differed in degree from the charged
conduct.’’ Id., 669.
Here, there were numerous similarities between the
allegations of G and K, including: (1) the abuse began
at a young, prepubescent age; (2) the abuse occurred
when the defendant was alone with his children, or
when other family members slept; (3) all of the abuse
occurred in the family home; (4) on some occasions,
the defendant would bring both G and K to his bedroom,
lay them on the bed, and sexually abuse them; (5) the
abuse involved the defendant touching G’s and K’s vagi-
nas, performing oral sex on each of them, and touching
their breasts with either his mouth or his hands; and (7)
both G and K claimed that the abuse either drastically
decreased or ceased when they began menstruating. As
our Supreme Court concluded in Devon D., we similarly
conclude here that the fact that G claimed that the
defendant began abusing her at a younger age and
engaged in additional types of sexual misconduct with
her does not outweigh the numerous similarities, nor
does it render his misconduct with respect to G more
severe and shocking than his misconduct with respect
to K. Given the similarities between the conduct toward
G and K, and in view of the standard of admissibility
governing the use of prior misconduct evidence in sex-
ual assault cases, we conclude that the trial court’s
conclusion that the alleged conduct of the defendant
toward G and K was similar was proper.
Having determined that the evidence was relevant to
prove that the defendant had a propensity to engage
in aberrant sexual behavior, we turn to whether the
probative value of the evidence outweighed its prejudi-
cial effect. The defendant argues that because ‘‘both of
the joined cases depended solely on the credibility of
the witnesses and lacked any physical or other corrobo-
rating evidence,’’ it was unduly prejudicial to join the
cases because ‘‘the danger is great that the jury would
have used the evidence cumulatively.’’ We are not per-
suaded.
‘‘We previously have held that the process of balanc-
ing probative value and prejudicial effect is critical to
the determination of whether other crime[s] evidence
is admissible. . . . At the same time, however, we . . .
do not . . . requir[e] a trial court to use some talis-
manic phraseology in order to satisfy this balancing
process. Rather . . . in order for this test to be satis-
fied, a reviewing court must be able to infer from the
entire record that the trial court considered the prejudi-
cial effect of the evidence against its probative nature
before making a ruling. . . . In conducting this balanc-
ing test, the question before the trial court is not
whether [the evidence] is damaging to the defendant
but whether [the evidence] will improperly arouse the
emotions of the jur[ors].’’ (Citation omitted; internal
quotation marks omitted.) State v. Devon D., supra, 321
Conn. 673.
We are satisfied that the trial court weighed the preju-
dicial effect of the evidence against its probative value
before ruling on the cross admissibility of this evidence.
After hearing argument from both parties, the court
acknowledged in its memorandum of decision that evi-
dence of child sex abuse was harmful to the defendant,
but also noted that prior acts of similar sexual abuse
of children are highly probative. ‘‘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
in original; internal quotation marks omitted.) State v.
Daniel W., supra, 180 Conn. App. 94–95. On appeal,
the defendant does not explain how this evidence, if
admitted as uncharged sexual misconduct at separate
trials, would have been unduly prejudicial by showing
more than his propensity to sexually assault his daugh-
ters. We note that ‘‘propensity is the precise purpose
for which our legislature and courts have allowed such
evidence to be admitted and considered.’’ Id., 95. We
conclude that the court correctly found that the prejudi-
cial effect of the evidence did not outweigh its probative
value, and that the evidence was cross admissible.
Therefore, we need not consider whether the trial court
properly applied the Boscarino factors.21 See State v.
Devon D., supra, 321 Conn. 666 n.6.
In sum, we conclude that the trial court properly
exercised its discretion in permitting the two cases
against the defendant to be tried jointly. The defendant
cannot demonstrate that he was substantially preju-
diced by the joinder because the evidence in both cases
would have been cross admissible to show that he had
a tendency or a propensity to engage in aberrant and
compulsive sexual misconduct.
IV
The defendant finally claims that the trial court
improperly denied his motion to allow him to make an
opening statement to the jury. Although he acknowl-
edges that Connecticut law does not guarantee counsel
the right to make an opening statement, the defendant
argues that ‘‘[d]enying the defendant’s request pre-
vented the defendant a fair opportunity to present his
case.’’ We are not persuaded.
The following procedural history is relevant to our
resolution of this claim. On February 26, 2015, defense
counsel Richard P. Silverstein filed a written motion
requesting that the court permit him to give an opening
statement. On the first day of trial, prior to the com-
mencement of evidence, the court heard argument on
this motion. The court stated its intention to allow coun-
sel to introduce themselves to the jury, but ‘‘not get
into any of the facts of the case.’’ Defense counsel
responded: ‘‘Well, I was hoping you’d let me go a little
further than that. What I would like to do, if there’s no
objection, was to indicate what I would do, you know,
I didn’t pick this jury, but in voir dire I cover a number
of areas and that maybe cocounsel wouldn’t have gone
into. What I would like to be able to say to this jury is
that the allegations themselves are poison, that the only
thing worse than being a child molester is being accused
of being a child molester, that I understand in cases
such as this it is very difficult to afford the defendant
the presumption of innocence. I know this. And it’s also
very hard to hold them to their burden of proof.
‘‘And I want to explain to them that the burden of
proof in a sexual assault case is the same burden of
proof in [a] disorderly conduct case. I want to explain
to them that probability is here and beyond a reasonable
doubt is up here, and it’s the—that what keeps criminal
defense attorneys up at night is, we worry that the
closer they come to reaching their burden, the harder
it is for the jury to return a not guilty verdict, should
they fall just short in reaching that burden, that they
may be in the unenviable position of thinking my client
is probably guilty, but are mandated by law, should they
have a doubt based upon a reason found in the evidence
or a lack of evidence, to acquit my client, and that they
have taken an oath to do so; something like that.’’
The state responded that defense counsel’s proposed
opening statement was more akin to closing argument.
The state also noted that many of the areas that defense
counsel wanted to address in his opening statement
already had been covered by his cocounsel, Attorney
Samantha Kretzmer, during jury selection.
In an oral ruling, the court denied the defendant’s
motion to give an opening statement. The court noted
that it planned to ‘‘give preliminary instructions to the
jury before the evidence starts that touch upon certain
of the items just referenced by counsel for the defen-
dant,’’ and that ‘‘much of the items just referenced by
Mr. Silverstein were adequately covered by Attorney
Kretzmer’s more than thorough jury selection process,’’
and that Attorney Silverstein had previously requested
that the court permit him to conduct the evidentiary
portion of the trial and Attorney Kretzmer the jury selec-
tion. The court stated that it would allow defense coun-
sel and the state to introduce themselves to the jury,
and that ‘‘all of the other items referenced by counsel
can be addressed during closing argument.’’
After the jury entered the courtroom, the court
informed it: ‘‘Before I go over some preliminary instruc-
tions, before the evidence starts, it’s been a few weeks
since you were all here, I’m going to have each attorney
just briefly introduce themselves, so you know who
the players are, again, and then I’ll give you my brief
instructions.’’ After the state briefly addressed the jury,
defense counsel addressed it as follows: ‘‘Good morn-
ing. I don’t know any of you people. As you are aware,
I’ve been called down to try the case. My trial schedule
prevented me from doing the voir dire, [as] I was on
trial in New Haven. I usually like to get to know the
people that are gonna sit on the case. In this case, it was
impossible; however, I do appreciate you all showing
up today, even though jurors were cancelled from what
I understand.
‘‘I’m from New Haven, Connecticut. I try cases all
over the state. And I’ve been doing this for thirty years.
It’s all I do, is criminal defense work. I understand this
is—this particular case is going to be difficult. You’re
gonna hear a lot of difficult testimony. It’s the type of
case that elicits an emotional response for most people.
I would only ask you to maintain your objectivity, be
dispassionate and objective when (indiscernible) the
facts of this case. And I would just ask you to be fair
and abide by your oath as a juror, which indicates that
you will decide this case fairly and impartially, based
solely on the facts that you find in this courtroom and
the law the judge gives you. Toward that end, I look
forward to working with you. Thank you.’’
In its preliminary instructions, the court instructed
the jury, inter alia, as to the presumption of innocence,
the state’s burden of proof, and the jury’s role in decid-
ing the facts of the case and applying the law as provided
by the court. Following these preliminary instructions,
the evidentiary portion of the trial commenced.
We begin with the applicable standard of review and
the principles of law that guide our analysis. In Connect-
icut, ‘‘the right to make an opening statement to the
jury by a defendant in a criminal case is not guaranteed
by law or rule. Whether to allow an opening statement
is a decision to be left to the sound discretion of the
trial court, taking into consideration the number and
nature of the charges, the complexity of the issues, the
number of defendants and their interrelationship, and
similar factors which, when put into proper perspective
by an opening statement, would serve to clarify the
issues and focus the attention of the jury upon the
matters it must decide.’’ State v. Ridley, 7 Conn. App.
503, 506, 509 A.2d 546, cert. denied, 201 Conn. 803, 513
A.2d 698 (1986).
Under this standard, the court did not abuse its dis-
cretion when it denied the defendant’s motion to make
an opening statement. Defense counsel sought to
address the jury, because he did not have the opportu-
nity to do so during voir dire, about the nature of the
allegations against the defendant, the difficulty in
affording the presumption of innocence in ‘‘cases such
as this,’’ and the state’s burden of proof. The court
observed that cocounsel, Attorney Kretzmer, covered
much of this material during jury selection, and further
noted that Attorney Silverstein himself had requested
that the court permit Attorney Kretzmer to conduct
jury selection and Attorney Silverstein to conduct the
evidentiary portion of the trial. Furthermore, the court’s
statement that ‘‘all of the other items referenced by
counsel’’ could be addressed during closing argument
indicated its belief that defense counsel intended to
offer argument more appropriate for closing arguments.
It is well within the trial court’s discretion to prohibit
defense counsel from making legal argument in an open-
ing statement. See State v. Book, 155 Conn. App. 560,
577, 109 A.3d 1027 (concluding that trial court acted well
within discretion in limiting defense counsel’s opening
remarks because it anticipated that defense counsel
would present jury with legal argument), cert. denied,
318 Conn. 901, 122 A.3d 632 (2015), cert. denied,
U.S. , 136 S. Ct. 2029, 195 L. Ed. 2d 219 (2016).
Furthermore, the defendant is unable to show that
he was harmed by any claimed error. Although the court
permitted counsel to introduce themselves to the jury,
defense counsel in fact went beyond mere introduction
and robustly addressed the jury regarding: (1) his inabil-
ity to conduct voir dire in this case; (2) the nature of
his practice; (3) the ‘‘difficult’’ testimony that the jury
would hear during this case; and (4) the jury’s duty to
be objective and ‘‘decide this case fairly and impartially,
based solely on the facts that you find in this courtroom
and the law the judge gives you.’’ In light of this state-
ment, the court’s observation that many of the topics
that Attorney Silverstein wished to address were cov-
ered by cocounsel during voir dire, and the court’s pre-
liminary instructions to the jury, we conclude that the
defendant was not deprived, in any meaningful way,
from addressing the jury prior to the receipt of evidence.
The court did not abuse its discretion.
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 the crimes of sexual assault and risk of injury to a child, we
decline to identify the victim or others through whom the identity of the
victim may be ascertained. See General Statutes § 54-86e.
1
The defendant’s son from a previous relationship also moved to the
United States at this time.
2
Although K testified that the defendant began abusing her when she was
five or six years old, both she and the mother testified that she was born
in 1993. Since the family moved to Roosevelt Avenue in 2001, K must have
been at least six or seven years old when the abuse began. We note this
discrepancy, but conclude that it is immaterial to our disposition of the
defendant’s claims on appeal.
3
Count six of the information charged that ‘‘at . . . Roosevelt Ave, Stam-
ford, CT between the years of 2000 to 2004, [the defendant] engaged in
sexual intercourse with a child under the age of 13 years, specifically [K],
and the accused was more than two years older [than] said child . . . .’’
4
The court in Albert defined the labia majora as ‘‘the outer fatty folds
bounding the vulva.’’ (Internal quotation marks omitted.) State v. Albert,
supra, 252 Conn. 798 n.5.
5
In State v. Scott, 256 Conn. 517, 534, 779 A.2d 702 (2001), our Supreme
Court again noted its conclusion in Albert that ‘‘a touching of the labium
majora satisfies the penetration requirement . . . because penetration of
the labia majora constitutes penetration of the body . . . .’’ (Internal quota-
tion marks omitted.)
6
The defendant cites two cases to support his assertion that the evidence
before the jury was insufficient to convict him of sexual assault in the first
degree. First, he cites State v. Albert, supra, 252 Conn. 798. The defendant
points to physical evidence in that case, specifically, scrapes on the inside
fold of the victim’s labia majora that easily bled when touched, and argues
that ‘‘[t]he quantum of evidence in this case does not match that in Albert;
there is only [K’s] testimony that her recollection was that the defendant
‘tried to’ but was not successful in any type of digital penetration.’’ The
defendant also cites State v. Merriam, 264 Conn. 617, 621–22, 835 A.2d 895
(2003), in which our Supreme Court affirmed the judgment of conviction
of sexual assault in the first degree, sexual assault in the second degree,
and risk of injury to a child. The defendant again points to the physical
evidence in that case, specifically, that an examination by the victim’s pedia-
trician revealed redness of the victim’s labia majora. Id., 628.
In essence, the defendant argues that because there was physical evidence
to support the verdicts in those cases, and here, there only was the testimony
of K, the evidence was insufficient to support his conviction of sexual assault
in the first degree. We reject this argument. Physical evidence is not required
to convict a defendant of sexual assault in the first degree. See, e.g., State
v. Pedro S., 87 Conn. App. 183, 201, 865 A.2d 1177 (concluding that there
was sufficient evidence presented at trial to support defendant’s conviction
and noting that ‘‘[t]he defendant’s claim is based solely on the flawed premise
that the state bore the burden of proving its case with physical evidence’’),
cert. denied, 273 Conn. 924, 871 A.2d 1033 (2005). Indeed, K’s testimony
alone, if credited by the jury, is sufficient to sustain the conviction. See
State v. Madore, 96 Conn. App. 271, 283 n.12, 900 A.2d 64, cert. denied, 280
Conn. 907, 907 A.2d 93 (2006); see also State v. Gene C., 140 Conn. App.
241, 247, 57 A.3d 885 (‘‘[o]ur Supreme Court has recognized that a jury
reasonably can find a defendant guilty of sexual assault on the basis of the
victim’s testimony alone’’), cert. denied, 308 Conn. 928, 64 A.3d 120 (2013).
7
For the first time, on appeal, the defendant also claims that the trial
court erred in admitting, through the testimony of G and K, evidence of
uncharged sexual misconduct. Although the defendant argues that ‘‘[t]rial
counsel’s motions, arguments and the court’s rulings have preserved this
claim for review,’’ our review of the record reveals that defense counsel
never objected to the admission of this evidence. ‘‘[T]he standard for the
preservation of a claim alleging an improper evidentiary ruling at trial is
well settled. This court is not bound to consider claims of law not made at
the trial. . . . In order to preserve an evidentiary ruling for review, trial
counsel must object properly. . . . In objecting to evidence, counsel must
properly articulate the basis of the objection so as to apprise the trial court
of the precise nature of the objection and its real purpose, in order to form
an adequate basis for a reviewable ruling. . . .
‘‘These requirements are not simply formalities. They serve to alert the
trial court to potential error while there is still time for the court to act.
. . . Assigning error to a court’s evidentiary rulings on the basis of objections
never raised at trial unfairly subjects the court and the opposing party to
trial by ambush.’’ (Internal quotation marks omitted.) State v. Jose G., 102
Conn. App. 748, 755–56, 929 A.2d 324 (2007), aff’d, 290 Conn. 331, 963 A.2d
42 (2009). The defendant’s claim as to the uncharged sexual misconduct
evidence, therefore, is unpreserved for appeal, and the defendant has not
requested review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015), or requested reversal pursuant to the plain error doctrine.
See Practice Book § 60-5; see also State v. Jose G., supra, 756 (‘‘[w]here a
defendant fails to seek review of an unpreserved claim under either Golding
or the plain error doctrine, this court will not examine such a claim’’ [internal
quotation marks omitted.]). Accordingly, we decline to review this claim.
8
Although, in its motion, the state cited to § 4-5 (b) of the Connecticut Code
of Evidence, § 4-5 (c) contains the exception to which the state was referring.
9
At the January 15 hearing, the state represented that G and K would
testify that they observed the defendant be physically violent toward their
mother on a regular basis, and that they were fearful of what the defendant
would do to them and their mother. The state further represented that the
mother would testify that the defendant was physically abusive throughout
their marriage and that she sought medical treatment at least once, but the
defendant intimidated her into not saying ‘‘what actually happened to her.’’
The state explained that this evidence was needed to help the jury understand
the atmosphere in the home, the intimidation that was going on in the home,
the power and control that the defendant had over the family, the fear that
the children would feel about reporting the sexual abuse, and why G and
K would not go to the mother for protection, because she ‘‘was not even
able to protect herself.’’ The state argued that delayed disclosure was an
important issue in this case, that this evidence would help the jury under-
stand G and K’s delayed disclosures, and that this evidence would corrobo-
rate crucial prosecution testimony about the witnesses’ reasons for their
late disclosures. The state acknowledged that if the court permitted this
testimony, it could also give a limiting instruction to the jury that would
minimize any prejudicial effect.
In response, the defendant argued that this evidence was prejudicial and
uncorroborated, and that, if the jury was permitted to hear this evidence,
it would ‘‘assume this guy is a wife beater’’ and consequently think that ‘‘he
probably is guilty of these sexual assaults as well.’’ The defense further
argued that the delayed reporting was unrelated to the alleged domestic
abuse because it was too far removed in time from the 2012 reporting dates.
Defense counsel did concede, however, that she intended to cross-examine
G and K on the issue of delayed disclosure, but maintained that it should
not ‘‘be brought up that they [reported] it later because they saw their father
beating on their mother,’’ and that she did not think ‘‘that has anything to
do with this delayed disclosure.’’
10
Defense counsel responded: ‘‘Well, I hope it doesn’t—open the door to
that type of evidence, Your Honor, because, as I said, it—it very well could
be that had they come forward a year later, a year after he left the house,
and they were still at a tender age of eight, nine, ten, eleven years old, we’re
talking about grown women now. They’re no longer in fear of him. This
mother has moved on. He got remarried. He lives in Boston. They haven’t
seen him for five years. So, the idea that they’re still in fear of him and
that’s why the late disclosure, well, that would be fine if the late disclosure
was a year after he left—left the house. But five years, five years after he’s
led the—left the house and they’ve had no contact with him, they’re claiming
that they’re still in imminent fear of him and what he would do to their
mother and use that to describe why this late disclosure occurred as it did?
That dog don’t hunt.’’
11
In State v. Cruz, supra, 56 Conn. App. 764, a jury found the defendant
guilty of five counts of sexual assault in the first degree and two counts of
risk of injury to a child. On appeal, the defendant claimed that the trial
court erred in allowing the victim to testify that she did not report the sexual
abuse for more than two years because she feared the defendant because
she believed him to be a gang member. Id., 771. This court concluded that
‘‘[t]his evidence was relevant to aid the trier to determine why [the victim]
had waited two years before reporting the crimes, an issue directly involving
[the victim’s] credibility,’’ and affirmed the judgments of conviction. Id.,
771–72.
12
In State v. Daniels, supra, 42 Conn. App. 446–47, a jury found the
defendant guilty of one count each of sexual assault in the first degree,
assault in the third degree, and unlawful restraint in the first degree. On
appeal, the defendant claimed that the trial court erred in allowing the victim
to testify about past incidents of sexual abuse. Id., 449–50. Specifically, the
victim testified that she was twice sexually assaulted in the past by other
men, and that on both occasions, nothing was done after she reported those
incidents. Id., 450. Because of this, she was reluctant to report the sexual
assault by the defendant and delayed in reporting. Id. This court concluded
that ‘‘the proffered testimony clearly had a tendency to aid the jury in its
determination as to why she delayed before reporting the incident to the
police’’; id., 451; and affirmed the judgment of conviction. Id., 460.
13
The court instructed: ‘‘So, ladies and gentlemen, it’s my job now to give
you another instruction. You just heard the witness testify about being
struck, allegedly, by the defendant. I must instruct you that this evidence
may be used by you, if you decide to use it at all, for one purpose and one
purpose only; that is, to assess the credibility of the alleged victim’s testimony
on the issue of the alleged sexual assaults only. It can be used for no other
purpose, including as substantive evidence that the defendant is guilty of
the crimes charged. Rather, it may only be used to assess the credibility of
the alleged victim’s testimony. But you cannot use that evidence that the
defendant allegedly struck this witness in determining that the defendant
is guilty of the crimes charged. Again, it’s only related to the credibility of
the witness.’’
14
The court instructed: ‘‘I’m going to interrupt one moment and give one
more instruction on this last piece about the witness’ alleged observations
of swelling on her mother’s face and her allegedly hearing the arguments
between her mother and father. Just like I just mentioned a few moments
ago, this evidence is being offered to explain the alleged failure to report
in a timely manner. And I must instruct you that this evidence may be used,
again, if you decide to use it at all, for one purpose and one purpose only,
namely, to assess the credibility of the alleged victim’s testimony. It can
be used for no other purpose, including as substantive evidence that the
defendant is guilty of the crimes charged in the information. Rather, it may
only be used to assess the credibility of the alleged victim’s testimony.’’
15
The court instructed: ‘‘Ladies and gentlemen of the jury, the instruction
I gave you before about the use of the alleged domestic violence type
evidence is solely for the purpose of credibility, also applies to the testimony
you just heard from the witness about allegedly observing her sister being
struck by her father. Same type of instruction; that evidence is solely to
assess the credibility of the alleged victim’s testimony, particularly on the
issue of when it was reported, the sexual assaults were reported. And it
can’t be used for any other purpose, including as substantive evidence that
the defendant is guilty of the crimes charged in the information. It’s only
to be used to assess the credibility of the alleged victim’s testimony on the
issue of when she reported these alleged sexual assaults.’’
16
The court instructed: ‘‘All right. Before we proceed with the cross-
examination, I’m going to tell the jury one other cautionary instruction. You
just heard the testimony from this witness about alleged—her being allegedly
physically struck by the defendant, as well as the testimony regarding her
older sister’s allegedly being physically struck by the defendant. I must
instruct you, as I think I did earlier during the testimony of the first witness,
that this evidence of the defendant’s alleged behavior as just described may
be used by you, if at—if you decide to use it at all—for one purpose and
one purpose only, namely, to assess [the] credibility of the testimony from
this witness. It can be used for no other purpose, including as substantive
evidence that the defendant is guilty of the crimes charged.
‘‘The defendant is not charged with any of the physical abuse type evidence
you just heard. And the testimony from this witness may be used only to
assess the credibility of this witness’ testimony and not as substantive
evidence that the defendant is guilty of the crimes charged in the infor-
mation.’’
17
The court instructed: ‘‘I’m just going to tell the jury; I know you might
be getting tired of me, hearing this, but what you just heard about this
alleged injury that this witness suffered, as I said before, you can use that for
one purpose and one purpose only. And that’s only to assess the credibility
of the alleged victims on the issue of why they delayed to report the incident.
‘‘You can’t use it for any other purpose. So, for example, you can’t, if you
believe this testimony, you can’t say, well, I believe that this witness was
injured, and, therefore, the defendant must be guilty of the crimes charged
in the information. That you can’t do. But you can use this to assess the
credibility of the alleged victims as to the issue of why they delayed in
their report.’’
18
‘‘Relevant evidence’’ means evidence having any tendency to make the
existence of any fact that is material to the determination of the proceeding
more probable or less probable than it would be without the evidence. Conn.
Code Evid. § 4-1.
19
The defendant also argues that evidence of his violence toward the
mother and children was irrelevant to the issue of delayed disclosure. Specifi-
cally, he argues that, in light of the facts that he moved out of the family
home in 2007 and subsequently moved to another state, eventually divorced
from the mother, and maintained very little contact with G and K, ‘‘[t]here
was no evidence that they were in [a] situation or [in] circumstances that
the defendant could harm them or their mother since 2007.’’ We conclude
that the trial court was correct in its determination that such an argument
goes to the weight of the evidence, not its admissibility. Furthermore, having
suffered through the years of abuse that they alleged occurred at the hands
of the defendant, it was not unreasonable that G and K would fear for their
safety and the safety of their mother years after the abuse had ceased.
20
The entirety of the court’s instruction was as follows: ‘‘Multiple charges
and/or informations. The defendant is charged with ten counts. To the extent
that there have been any changes regarding the content of the information,
it is of no concern to your deliberations. You are to consider only the specific
charges submitted to you and not concern yourself with how the information
may have read when it was read to you at the start of trial.
‘‘The defendant is entitled to and must be given by you a separate and
independent determination of whether he is guilty or not guilty as to each
of the counts. Each of the counts charged is a separate crime. The state is
required to prove each element in each count beyond a reasonable doubt.
Each count must be deliberated upon separately. The total number of counts
charged does not add to the strength of the state’s case. You may find that
some evidence applies to more than one count of the information. The
evidence, however, must be considered separately as to each element in
each count. Each count is a separate entity. You must consider each count
separately and return a separate verdict for each count. This means that
you may reach opposite verdicts on different counts. A decision on one
count does not bind your decision on another count.’’
21
We also note that, even if we were to assume arguendo that the joinder
of the informations resulted in prejudice to the defendant, we would con-
clude that the court’s repeated and detailed jury instructions cured any
prejudice. First, after the jury was impaneled and sworn in, the court
instructed the jury that the charges set forth in the information were to
be considered as separate counts. Second, during trial, the court again
emphasized that the jury was required to ‘‘independently evaluate each and
every [count] of the information,’’ and make independent determinations
of guilt or innocence on each count. Third, the court reiterated these instruc-
tions during its final charge. ‘‘It is well established that [t]he jury [is] pre-
sumed to follow the court’s directions in the absence of a clear indication
to the contrary.’’ (Internal quotation marks omitted.) State v. Davis, 98 Conn.
App. 608, 624, 911 A.2d 753 (2006), aff’d, 286 Conn. 17, 942 A.2d 373 (2008),
overruled in part on other grounds by State v. Payne, 303 Conn. 538, 549,
34 A.3d 370 (2012).
Nonetheless, the defendant argues that ‘‘[a]lthough the defendant was
acquitted of the allegations brought by [G], that doesn’t necessarily resolve
whether the defendant was prejudiced by the joinder,’’ and cites our Supreme
Court’s decision in Boscarino for the proposition that ‘‘[a]cquittal of some
charges doesn’t necessarily guarantee that the jury considered the evidence
in each case separately.’’ We are not persuaded.
In Davis, the defendant was charged with crimes relating to three separate
incidents in three informations. State v. Davis, supra, 98 Conn. App. 611.
Those informations were joined for trial. Id. The jury returned verdicts of
guilty on all charges related to two of those incidents, but a verdict of not
guilty on all charges related to the third incident. Id., 624–25. This court
affirmed the judgments of conviction, and on appeal, our Supreme Court
noted that ‘‘by acquitting the defendant of all of the offenses charged in
[one] case, the jury evidently was able to keep the three cases separate and
did not blindly condemn the defendant on the basis of the evidence adduced
in the [other] case.’’ State v. Davis, 286 Conn. 17, 37, 942 A.2d 373 (2008),
overruled in part on other grounds by State v. Payne, 303 Conn. 538, 549,
34 A.3d 370 (2012). Here, the jury returned verdicts of not guilty on all
charges related to the allegations made by G, and of guilty on all charges
related to the allegations made by K. We conclude that acquittal of the
charges related to G’s allegations demonstrates that the jury properly consid-
ered each information separately. See also State v. Rodriguez, 91 Conn.
App. 112, 120–21, 881 A.2d 371 (acquittal of one of eight counts charged
demonstrated that jury was able to consider each count separately), cert.
denied, 276 Conn. 909, 886 A.2d 423 (2005).