State v. Shaw

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. CHRISTOPHER SHAW
(SC 18207)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh,
McDonald and Espinosa, Js.*
Argued May 13, 2013—officially released June 10, 2014
Alice Osedach, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Stacey Haupt Miranda, senior assistant
state’s attorney, for the appellee (state).
Opinion
ZARELLA, J. The defendant, Christopher Shaw,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (2),1
and one count of risk of injury to a child in violation
of General Statutes (Rev. to 2005) § 53-21 (a) (2).2 The
defendant claims that the trial court improperly (1)
denied him the opportunity to introduce evidence of
prior sexual conduct that was admissible under General
Statutes § 54-86f,3 commonly known as the rape shield
statute, in violation of his constitutional rights to con-
frontation, to present a defense, and to due process,
(2) admitted into evidence a laboratory report without
the testimony of the analyst who performed the tests,
in violation of the defendant’s constitutional right to
confrontation, (3) admitted into evidence a hearsay
statement under the hearsay exception for spontaneous
utterances, (4) permitted an emergency room physician
to testify as an expert witness over defense counsel’s
objection, and (5) declined the defendant’s request to
give a jury instruction on the credibility of child wit-
nesses. We reverse the judgment of the trial court and
remand the case for a new trial.
I
The jury reasonably could have found the following
facts. On January 28, 2006, the victim, A,4 age eleven,
was living with her mother, B, her fifteen year old
brother, K, her eight year old sister, and the defendant
in B’s apartment in New Haven. Around 11 p.m. that
evening, while A’s older sister, M, was visiting the fam-
ily, the defendant came home in search of his identifica-
tion card (ID) so that he could go out to a club. The
defendant believed that the ID was in his coat, but when
B saw that he was intoxicated, she took the ID from
his coat, without his knowledge, and hid it in her purse
so that he would not go out.
After a minor altercation during which the defendant
took B’s purse and said he would not give it back until
she gave him the ID, M retrieved the coat and handed
it to the defendant. He then apologized for the argument
and proceeded to leave the apartment, unaware that
the ID no longer was in his coat. Shortly thereafter, B
also left the apartment to drive M back to her home.
After she dropped M off, she called her three younger
children and asked A if the defendant had returned.
When A replied that the defendant had returned in
search of his ID but, after failing to find it, ‘‘stormed
back out’’ looking for B, B decided to stay out for a
while before returning home.
At approximately 1:20 a.m., B returned to the apart-
ment. She immediately noticed that the defendant’s
boots were on the floor and his coat was on the sofa,
where he normally slept. When she went to her bed-
room, she found the door closed and difficult to open
because two large garbage bags filled with clothing
had been pushed up against the other side. After she
managed to open the door, she observed two shadows,
one of which appeared to be on top of the other, near
the head of the bed. Upon turning on the light, the
shadows ‘‘jumped,’’ and she saw the defendant sitting
toward the foot of the bed and A sitting up in the middle.
The defendant was wearing a shirt and appeared to
have nothing on below his waist. A was wearing a night-
gown, and her underwear was around her ankles. B
immediately ran to the kitchen and called 911. When
the police arrived shortly thereafter, she accused the
defendant of raping A, and the police arrested him.
While the police detained the defendant in the living
room, Officer Nancy Jordan questioned A in the kitchen.
Jordan then accompanied A and B to the emergency
department at Yale-New Haven Hospital (hospital),
where A was examined by Mark Cicero, a physician
specializing in pediatric emergency medicine. Emer-
gency department personnel utilized a sexual assault
evidence collection kit in accordance with the state
protocol prescribed for alleged sexual assaults. See
General Statutes § 19a-112a. Later that day, B went to
the New Haven Police Department and gave a formal
statement regarding the assault.
The defendant was charged with sexual assault in
the first degree in violation of § 53a-70 (a) (2) and risk
of injury to a child in violation of General Statutes (Rev.
to 2005) § 53-21 (a) (2). A jury found him guilty of
both offenses, and the trial court rendered judgment
imposing a total effective sentence of thirty years, exe-
cution suspended after twenty years, with ten years
probation. This appeal followed.
II
The defendant first claims that the trial court improp-
erly excluded evidence that was admissible under the
rape shield statute in violation of his constitutional
rights to confrontation, to present a defense, and to due
process under the sixth and fourteenth amendments to
the United States constitution, and article first, § 8, of
the Connecticut constitution. He claims that his consti-
tutional rights were violated because, in order to rebut
the inference that he was the cause of vaginal injuries
to A that were identified and reported by Cicero, he
should have been allowed to show an alternative source
of the injuries and a motivation for A and B to fabricate
the assault through the introduction of evidence that
the defendant had caught A and her older brother, K,
engaging in sexual intercourse three days earlier.5 The
state responds that the trial court properly excluded
the evidence because the defendant failed to make an
adequate showing of relevance. We agree with the
defendant.
A
A testified that, sometime after B left the apartment
on the evening of January 28, 2006, to take M back to
her home, the defendant entered A’s bedroom, awak-
ened her, and told her to go into the living room, where
he directed her to remove her underwear. A then went
with the defendant, while still clad in her nightgown,
into B’s bedroom, where they engaged in sexual inter-
course on the floor and on the bed for thirty to forty-
five minutes. A further testified that the defendant was
on top of her and had put his penis in her vagina.
Cicero, the emergency department physician who
subsequently examined A at the hospital, testified that
A gave him a similar but more detailed account of what
had happened in the bedroom that night. He testified
that A told him that the defendant had put his mouth
on her vagina and then had put his penis in her mouth
and her vagina. With respect to A’s physical condition,
he testified that he observed no lesions or injuries on
A’s external genitalia but noted the presence of six
superficial tears on the internal structures that lead into
and surround the vagina, known as the ‘‘fossa navicu-
laris’’ or ‘‘vestibular fossa.’’ He opined that the injuries
had been sustained within the past seventy-two hours
and that it was ‘‘quite possible that they had been sus-
tained within the last few hours’’ before Cicero’s exami-
nation of A. He also testified that he had detected no
semen, substance or debris on A that could be attributed
to the defendant and had observed no other bruises or
injuries on A’s body. On cross-examination, he added
that the vaginal tears were not likely to have been
caused by consensual sexual intercourse and that A
told him that she had not been exposed to any sexual
activity within the past three days other than the
alleged assault.
The defendant filed a motion two days before the
start of the trial requesting the court’s permission to
present evidence that A had engaged in sexual inter-
course with K three days before the alleged assault.
The defendant explained that he wanted to introduce
the evidence for use in his case-in-chief or to rebut
evidence presented by the state concerning the vaginal
tears identified by Cicero during his examination of A.
The defendant offered the evidence under three excep-
tions to inadmissibility set forth in the rape shield stat-
ute. He offered the evidence under § 54-86f (1) to show
that he was not the source of the vaginal tears. He
also offered the evidence under § 54-86f (2) and (4) to
challenge A’s credibility and to establish a motive for
her to fabricate evidence in support of her claim that
he was the source of her injuries, which was that she
wanted to conceal the fact that she had been having a
consensual sexual relationship with K.
The following day, the court held a hearing on the
defendant’s offer of proof. Defense counsel first dis-
cussed her reasons for seeking admission of the evi-
dence. The state then objected on relevancy grounds.
The state relied on the five part test articulated in State
v. Rolon, 257 Conn. 156, 183–84, 777 A.2d 604 (2001), for
determining the admissibility of prior sexual conduct
evidence offered to demonstrate an alternative source
of the victim’s sexual knowledge where the victim may
be confused over the identity of the perpetrator. The
state argued that it did not believe that the defendant
could satisfy the first two prongs of the test, namely,
that A clearly had engaged in sexual activity with K and
that the prior alleged conduct resembled the alleged
conduct in the present case. Defense counsel responded
that, in addition to the defendant’s testimony, a social
worker’s report contained information that A had told
the social worker that K and the defendant did not get
along because the defendant had alleged that K was
inappropriately touching A. Defense counsel thus urged
the court, under the provisions of the rape shield stat-
ute, to accept the defendant’s written offer of proof at
that time and to hold an evidentiary hearing, outside the
presence of the jury, for each of its proposed witnesses
following commencement of the trial to determine
whether the witnesses should be allowed to testify in
support of the defendant’s theory. The court responded
that it was prepared to rule on the motion before com-
mencement of the trial and that the issues could be
revisited, if necessary, later in the proceedings. When
the court suggested that the defendant testify that day
as to the alternative source of A’s injuries, counsel
responded that the defendant was not prepared to tes-
tify and that his testimony, standing alone, would be
insufficient to support his defense.
Following a recess, defense counsel changed her
mind, and the defendant took the stand. The defendant
testified in support of his offer of proof that, ‘‘[t]hree
days before [he] was arrested,’’ he observed a sexual
encounter between A and K. He elaborated that, around
3 p.m. on January 25, 2006, before B returned home
from work, he came out of the bathroom and noticed
A and K in an adjacent room in ‘‘an awkward position’’
and engaged in ‘‘[i]nappropriate touching.’’ As soon as
A saw the defendant, she jumped out from in front of
K. The defendant then set his cell phone to record mode,
laid it down on a nearby table, and went to take a
shower. The defendant later listened to the recording
and heard what ‘‘sounded like intercourse, moaning,
sex . . . .’’ After the defendant told A what he had
done and let her listen to the recording, she admitted
that she and K were ‘‘having sex’’ while the defendant
was in the shower. The defendant also let B hear the
recording after she came home from work and told her
what he had seen. B then had a private conversation
with A, during which A denied having sex with K. Fol-
lowing her conversation with A, B went with the defen-
dant to a department store and purchased a video sur-
veillance camera.
The court asked if there was any further evidence
the parties wanted to offer, and the state referred to
certain information it had received from a testing labo-
ratory during the court recess. According to the state,
a laboratory technician had reported that certain
recordings on the defendant’s cell phone did not
‘‘match’’ what the defendant was claiming had been
recorded while he was in the shower, but the technician
was unable to testify in court at that time. Defense
counsel objected to the evidence on the ground that
she ‘‘[had] been asking for [the] cell phone information
for [the past] nine months’’ and had never received
it. Defense counsel also contended that the reported
information would not be useful unless accompanied
by information regarding the date of the recordings
identified by the laboratory and whether the recordings
had been made over the alleged recording of A and K.
The trial court rendered no decision on the cell phone
evidence, and the parties never referred to it during the
subsequent proceedings.
In her final argument on the offer of proof, defense
counsel reiterated that the prior sexual conduct evi-
dence was essential to the defendant’s right of confron-
tation and was admissible under the rape shield statute
to explain (1) an alternative source of the vaginal tears
that were purportedly caused within three days of Cice-
ro’s examination of A, and (2) the motivation of A and
B to fabricate the alleged assault so that the defendant
would be arrested and removed from the household
and no longer privy to what was happening within the
family. Defense counsel further stated that she would
seek testimony from A and B, and that, if they denied the
defendant’s claims, their testimony would be subject to
impeachment by the defendant’s testimony. The state
repeated its earlier argument that the defense had failed
to prove under Rolon that the prior acts clearly had
occurred and that they closely resembled the acts
alleged in the present case, especially given A’s claim
that the defendant had engaged in both oral penetration
and vaginal intercourse.
In an oral ruling on the motion the next day, the trial
court initially noted that prior sexual conduct evidence
must be relevant in order to be admissible. It then stated
that the defendant’s offer of proof did not support a
continuing evidentiary hearing or admission of the pro-
posed evidence because the defense had not made the
required preliminary showing that the evidence sought
to be explored in a further hearing was relevant.6 The
court concluded that the evidence was not relevant to
a material issue in the case or necessary to the defense
because the prior sexual conduct between A and K had
not been clearly defined or shown to closely resemble
the defendant’s alleged conduct under the principles
articulated in Rolon and State v. Kulmac, 230 Conn. 43,
61–63, 644 A.2d 887 (1994). The court also concluded
that the probative value of the evidence did not out-
weigh its prejudicial effect because it involved sex
between siblings, and that a discussion of such conduct
would not be allowed at trial. The court stated: ‘‘There
is no reference to sibling sex among these children
unless you say, Judge, I have to ask it, I will excuse
the jury, and [I will] hear your offer at the time.’’ The
court then denied the motion.
Following a recess, the jury entered the courtroom
and began hearing evidence. B was the third witness to
testify. On cross-examination, defense counsel elicited
testimony that (1) she and the defendant previously
had considered each other ‘‘boyfriend and girlfriend’’
but had broken up several months prior to January 28,
2006, (2) she would sometimes leave K alone with the
other children, (3) the apartment was not very sound-
proof, and she could hear voices in the adjacent bed-
room from her own bedroom, (4) she saw only shadows
when she first entered her bedroom at the time of the
incident and thus did not actually see the defendant on
top of A, (5) she saw the defendant sitting at the foot
of the bed after she turned on the light, (6) she did not
know if the defendant was wearing underwear, (7) A
was wearing a nightgown when she was sitting on the
bed, (8) the defendant did not try to leave the apartment
after the incident, (9) she left the defendant alone with
A when she went downstairs to open the door for the
police, and (10) she never saw the defendant act inap-
propriately toward A during the many months he had
lived with the family prior to January 28.
In the midst of this testimony, defense counsel
requested the court’s permission to ask B certain addi-
tional questions relating to the facts alleged in the defen-
dant’s motion to admit the prior sexual conduct evi-
dence. Outside the presence of the jury, defense counsel
explained that she wanted to ask B about the defen-
dant’s concern regarding the behavior of her children,
whether B also was concerned about the behavior of
her children, without getting into the reasons why, and
whether B was so concerned about her children that
she bought a video surveillance camera to monitor their
behavior. Counsel argued that the answers to these
questions would be relevant to B’s motive, bias and
interest in testifying against the defendant, apparently
referring to the defendant’s claim that A had sexual
intercourse with K. The state objected on the ground
that the proposed testimony was not admissible under
the court’s prior ruling, and, in any event, it was not
relevant to B’s testimony as to what she had observed
in the apartment at the time of the alleged assault.
The court agreed with the state and denied counsel’s
request, explaining that the suggested line of ques-
tioning had no bearing on, or relevance to, the issues
in the case.
When the court reconvened three days later, the
defendant filed a written motion for reconsideration of
the trial court’s ruling barring admission of the prior
sexual conduct evidence.7 The motion also contained
a request for permission to present the testimony of
the defendant, A, B and K in support of the defendant’s
claim of third party culpability for A’s injuries. The
defendant explained, as defense counsel had done in
connection with the previous motion, that the theory
of the defense was that A and B had contrived the
accusation against the defendant to cover up his discov-
ery that A was having sexual intercourse with K. The
defendant thus sought to (1) question B about what the
defendant had told her regarding the incident involving
A and K, as well as her subsequent actions in arranging
for the surveillance of her children, (2) question K about
the source of A’s injuries, the fact that K was alone
with A during the three days before the alleged assault,
and what he may have heard and seen on the date of
the alleged assault, and (3) question A about having
sexual intercourse with K, being alone with K during
the three days before the incident, her awareness that
the defendant had made accusations that she had sexual
intercourse with K, and about whether the foregoing
accusations motivated her to fabricate the claim against
the defendant so that he would no longer be able to
make future accusations.8 The defendant argued that
to rule otherwise would deny him his constitutional
rights to present a defense, to testify, and to confront
witnesses.
In its oral ruling on the motion for reconsideration,
the court stated, with respect to K, that it was not
barring the defense from calling anybody from testifying
but that the testimony must be relevant and material
to the issues in the case. The court asked defense coun-
sel to explain the relevance of K’s proposed testimony
because it had not yet heard anything that would sup-
port counsel’s position that the testimony was admissi-
ble. Defense counsel reiterated that K’s testimony was
intended to show that K had a sexual relationship with
A three days before the alleged assault and that this
was both the source of A’s injuries and the motivation
for A and B to cover up that relationship by making
accusations against the defendant. The state character-
ized the proposed line of questioning as self-serving,
and the court, after stating that it had heard the same
argument before, denied the defendant’s request to
reconsider its prior ruling because ‘‘there’s nothing
coming into this court regarding any incestual relation-
ships with this person and her brother, none.’’ The court
added that, if the defense wanted to bring K in ‘‘to make
an offer of proof to preserve it for the appellate record,’’
that would be up to counsel. The court repeated that
the proposed testimony had no relevance or bearing
on the issues in the case and that the only relevant
evidence was evidence relating to what had happened
in B’s bedroom in the early morning hours of January
29. The court characterized the evidence offered by
the defense as ‘‘speculation and . . . hearsay and not
admissible . . . .’’9
Defense counsel then requested and was granted per-
mission to make a record of the questions that she
wanted to ask K if he was brought in to testify.10 There-
after, counsel also asked the court if she could make
an offer of proof with respect to certain questions she
wanted to ask A on cross-examination that might be
covered by the court’s denial of the initial motion to
admit the prior sexual conduct evidence.11 The court
allowed counsel to put the questions on the record but
denied counsel’s request to cross-examine A, stating
that the questions would improperly focus the jury’s
attention on areas that the court found immaterial, irrel-
evant, confusing, and in no way supported the defen-
dant’s theory of relevance. The court further explained
that the rape shield statute protected those areas of
inquiry and repeated that the focus should be on what
had happened in B’s bedroom during the early morning
hours of January 29, and on the people who were there,
namely, the defendant, A, B, and any other person who
might have been in the room before B arrived. Accord-
ingly, the defendant was unable to present his proposed
defense that A’s injuries were caused by sexual inter-
course with K three days before the alleged assault.12
B
We begin our analysis with the standard of review.
‘‘It is well established that a trial court has broad discre-
tion in ruling on evidentiary matters, including matters
related to relevancy. . . . Accordingly, the trial court’s
ruling is entitled to every reasonable presumption in
its favor . . . and we will disturb the ruling only if the
defendant can demonstrate a clear abuse of the court’s
discretion.’’ (Citations omitted; internal quotation
marks omitted.) State v. Cerreta, 260 Conn. 251, 260,
796 A.2d 1176 (2002). If we conclude, however, that the
evidentiary ruling was improper and that the evidentiary
impropriety ‘‘is of constitutional [proportion], the state
bears the burden of proving that the error was harmless
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) State v. Osimanti, 299 Conn. 1, 16, 6 A.3d
790 (2010).
‘‘Whether such error is harmless in a particular case
depends [on] a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . Most importantly, we must examine the
impact of the evidence on the trier of fact and the result
of the trial. . . . If the evidence may have had a ten-
dency to influence the judgment of the jury, it cannot
be considered harmless.’’ (Internal quotation marks
omitted.) State v. Wilson, 308 Conn. 412, 426, 64 A.3d
91 (2013).
With respect to the governing legal principles, ‘‘[i]t
is well established that a defendant has the right to
confront witnesses against him as guaranteed by the
confrontation clauses of both our federal and state con-
stitutions. . . . [T]he right of an accused in a criminal
trial to due process is, in essence, the right to a fair
opportunity to defend against the [s]tate’s accusations.
The rights to confront and cross-examine witnesses and
to call witnesses in one’s own behalf have long been
recognized as essential to due process. . . .
‘‘We are mindful, however, that the right to confront
and to cross-examine is not absolute and may, in appro-
priate cases, bow to accommodate other legitimate
interests in the criminal trial process. . . . For exam-
ple, the trial court has a right, indeed, [a] duty, to
exclude irrelevant evidence. . . . The rules excluding
evidence from criminal trials, however, may not be arbi-
trary or disproportionate to the purposes they are
designed to serve. . . .
‘‘We [likewise] recognize that, in cases involving sex-
ual crimes, [t]he rape shield statute . . . was enacted
specifically to bar or limit the use of prior sexual con-
duct of an alleged victim of a sexual assault because
it is such highly prejudicial material. . . . [T]he state
. . . [relies on] the legislative intent behind the rape
shield statute in [seeking to exclude] the prior sexual
abuse evidence in order to [protect] the victim’s sexual
privacy . . . [shield] her from undue harassment . . .
and [enable her] to testify in court with less fear of
embarrassment. . . . [Nonetheless], [a]lthough the
state’s interests in limiting the admissibility of this type
of evidence are substantial, they cannot by themselves
outweigh the defendant’s competing constitutional
interests.’’ (Citations omitted; internal quotation marks
omitted.) State v. Rolon, supra, 257 Conn. 174–76.
‘‘In order to determine whether evidence of prior
sexual abuse properly was excluded in the context of
[a] sexual assault case, therefore, we refer to the stric-
tures of Connecticut’s rape shield statute. . . . [Sec-
tion] 54-86f prohibits the admission of a victim’s prior
sexual conduct . . . unless such evidence is . . .
offered by the defendant on the issue of whether the
defendant was, with respect to the victim, the source
of . . . injury, or . . . offered by the defendant on the
issue of credibility of the victim, provided the victim
has testified on direct examination as to his or her
sexual conduct . . . or . . . otherwise so relevant and
material to a critical issue in the case that excluding
it would violate the defendant’s constitutional rights.’’
(Internal quotation marks omitted.) Id., 178.
The rape shield statute ‘‘provides for a two step pro-
cess before evidence proffered by a defendant as falling
under one of the statute’s exceptions may be admitted.
First, if the defendant has satisfied his preliminary bur-
den in his offer of proof to show that the evidence is
potentially relevant, pursuant to the statute the trial
court must conduct a hearing to determine the admissi-
bility of the evidence. Second, [i]f, after [a] hearing, the
court finds that the evidence meets the requirements of
this section and that the probative value of the evidence
outweighs its prejudicial effect on the victim, the court
may grant the motion. . . .
‘‘In the first step of this two part process, the defen-
dant bears the burden of showing that the proffered
evidence overcomes the presumption, inherent in § 54-
86f, that evidence of the sexual conduct of a [sexual
assault] victim is inadmissible and satisfies the statute’s
requirement that only evidence relevant to the case,
rather than evidence relevant merely to demonstrate the
unchaste character of the victim, be admissible. . . .
‘‘If the trial court determines that the evidence is
relevant and admissible under one of the exceptions
enumerated in § 54-86f, the trial court must proceed to
the second part of the two part process outlined in the
statute. That is, the evidence is admissible only if its
probative value outweighs the prejudicial impact on the
victim. . . .
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . One fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable. . . . Evidence is irrele-
vant or too remote if there is such a want of open and
visible connection between the evidentiary and princi-
pal facts that, all things considered, the former is not
worthy or safe to be admitted in the proof of the latter.
. . . In considering whether evidence [is] sufficiently
relevant to fall under one of the exceptions enumerated
in § 54-86f, we have drawn a distinction between, on
the one hand, evidence that is relevant to establish some
portion of the theory of defense or rebut some portion
of the state’s case, which is admissible if the court
determines that the probative value of the evidence
outweighs its prejudicial impact on the victim, and, on
the other hand, evidence that is offered as an impermis-
sible attempt to establish the victim’s general unchaste
character [which is] prohibited by [§ 54-86f].’’ (Internal
quotation marks omitted.) State v. Crespo, 303 Conn.
589, 602–603, 35 A.3d 243 (2012). ‘‘A clear statement of
the defendant’s theory of relevance is all important
in determining whether the evidence is offered for a
permissible purpose.’’ (Internal quotation marks omit-
ted.) State v. Rolon, supra, 257 Conn. 179. ‘‘When the
trial court excludes defense evidence that provides the
defendant with a basis for cross-examination of the
state’s witnesses, [despite what might be considered a
sufficient offer of proof] such exclusion may give rise
to a claim of [a] denial of the right to confrontation
and to present a defense.’’ (Internal quotation marks
omitted.) Id., 177.
We emphasize that, ‘‘[i]n order to carry [the] thresh-
old burden of establishing relevance, a defendant must
make an offer of proof13 as a prerequisite to obtaining
an evidentiary hearing to determine the admissibility
of evidence . . . . The preliminary showing must be
sufficient to demonstrate that the evidence sought to
be explored in the evidentiary hearing is relevant . . .
[and] to enable the trial court to make an informed
ruling in connection with the exercise of its discretion
on the issue.’’ (Citation omitted; footnotes altered; inter-
nal quotation marks omitted.) State v. Sullivan, 244
Conn. 640, 649–50, 712 A.2d 919 (1998). When a defen-
dant’s core constitutional rights are implicated, a trial
court is obligated to order, sua sponte, an evidentiary
hearing on an offer of proof to determine whether the
evidence is admissible. Id., 650–51 n.14.
C
Mindful of these principles, we first conclude that
the trial court improperly excluded the proffered evi-
dence of prior sexual conduct on relevancy grounds.
The defendant’s initial motion to introduce the evidence
and his motion for reconsideration both made clear
that he was not offering the evidence to suggest that
A, who was eleven years old at the time of the alleged
assault, had an unchaste reputation or character.
Rather, the motions explicitly stated, and the defen-
dant’s allegations unmistakably demonstrated, that the
evidence of prior sexual conduct was offered to show
a possible alternative source of A’s injuries under the
exception set forth in § 54-86f (1), to challenge A’s credi-
bility under the exception set forth in § 54-86f (2), and
to show a possible motivation on the part of A and B
to fabricate the accusations against the defendant under
the exception set forth in § 54-86f (4).
Moreover, ‘‘[§] 54-86f encompasses inferential as well
as direct evidence of sexual conduct.’’ State v. Rinaldi,
220 Conn. 345, 354, 599 A.2d 1 (1991). In the present
case, the relationship between the proffered evidence,
both inferential and direct, and the sexual conduct
sought to be proved were such that a jury could con-
clude that A and K had engaged in sexual intercourse
three days before the alleged assault. The defendant
testified that he had observed A and K in an awkward
position, had seen them inappropriately touching, had
heard ‘‘moaning’’ and other sounds on the cell phone
recording suggesting they were having sexual inter-
course, had been told by A that she and K were ‘‘having
sex’’ while the defendant was in the shower, and, after
informing B about what he had seen and heard, had
accompanied B to a department store where she pur-
chased a video surveillance camera. These allegations,
if proven, could have allowed the jury to conclude that
A’s injuries were caused by K and not by the defendant.
The evidence therefore was relevant under the rape
shield statute because there was a visible connection
between the facts alleged in the defendant’s offer of
proof and the facts on which the charges against him
were based.14
Our conclusion that the evidence was relevant, how-
ever, does not end the inquiry. We also must examine
whether the probative value of the evidence outweighed
its prejudicial effect. The trial court ultimately con-
cluded that the evidence was unduly prejudicial and,
therefore, inadmissible because, in addition to failing
the relevancy test, it involved sex between siblings.15
We disagree.
Evidence should be excluded as unduly prejudicial
when (1) it may unnecessarily arouse the jurors’ emo-
tions, hostilities or sympathies, (2) it may create dis-
tracting side issues, (3) it will consume an undue
amount of time, or (4) one party is unfairly surprised
and unprepared to meet it. E.g., State v. Rinaldi, supra,
220 Conn. 356.
We first note that, when evidence is proffered under
one of the exceptions in the rape shield statute to sup-
port an alternative theory concerning the source of the
victim’s injuries, it will almost always be deemed more
probative than prejudicial because it implicates the
defendant’s constitutional right of confrontation. Thus,
although incestual relationships may inspire a negative
emotional response, the fact that A and K are siblings
does not outweigh the probative value of evidence that
they had engaged in sexual intercourse three days
before the alleged assault because such evidence sup-
ported the defendant’s claim that the sexual encounter
between A and K could have been an alternative source
of A’s injuries and a motivation for A and B to accuse the
defendant of sexual assault. Moreover, the potentially
prejudicial effect of the evidence was lessened by the
fact that its significance had nothing to do with the
sibling relationship but, rather, with the fact that A’s
injuries may have resulted from sexual intercourse with
someone other than the defendant three days before
the alleged assault. Any prejudicial effect of the evi-
dence also was limited because it was not overly
graphic. Accordingly, we conclude that the probative
value of the proffered evidence outweighed its prejudi-
cial effect and that the trial court abused its discretion
in precluding its admission.
To the extent the trial court concluded that the facts
did not support a continuing evidentiary hearing or
admission of the evidence because the prior sexual
conduct had not been clearly defined or shown to
closely resemble the alleged assault, we disagree. In
reaching that conclusion, the trial court relied on Rolon,
in which the defendant claimed that ‘‘he was denied
his constitutional rights to confrontation, to present a
defense and to a fair trial when the trial court prohibited
him from presenting evidence of [the victim’s] prior
sexual abuse where the factual similarities between the
present and previous instances could have: (1) demon-
strated an alternative source for [the victim’s] sexual
knowledge; and (2) resulted in [the victim’s] confusion
over the identity of the perpetrator.’’ State v. Rolon,
supra, 257 Conn. 160. To resolve that claim, we adopted
the five part test first articulated by the Wisconsin
Supreme Court in State v. Pulizzano, 155 Wis. 2d 633,
656, 456 N.W.2d 325 (1990), for determining whether
a defendant has established ‘‘a constitutional right to
present otherwise excluded evidence of a child [sexual
abuse victim’s] prior sexual conduct for the limited
purpose of proving an alternative source for sexual
knowledge . . . .’’ State v. Rolon, supra, 183. Under
that test, ‘‘[a] defendant must make an offer of proof
to the trial court showing: ‘‘(1) that the prior acts clearly
occurred; (2) that the acts closely resembled those of
the present case; (3) that the prior act is clearly relevant
to a material issue; (4) that the evidence is necessary
to [the] defendant’s case; and (5) that the probative
value of the evidence outweighs its prejudicial effect.’’
(Internal quotation marks omitted.) Id., 184, quoting
State v. Pulizzano, supra, 656.
We conclude that the trial court improperly relied on
the test set forth in Rolon to preclude admission of the
proffered evidence. Unlike in the present case, it was
undisputed in Rolon that the victim had been subjected
to prior sexual abuse by someone other than the defen-
dant; see State v. Rolon, supra, 257 Conn. 161 and n.10;
and, therefore, the defendant had no need to prove that
the prior sexual abuse occurred. In Rolon, the abuse
began when the victim was eight months old and contin-
ued until she was five years old; see id., 161–63; and
the issue before the court was whether the victim,
because of her very young age, could have confused
the defendant with the perpetrator of the prior abuse
because of similarities in the type of abuse and in the
characteristics of the former perpetrator and the defen-
dant, both of whom were older men and grandfather
figures. See id., 159–60, 166–67.
In contrast, the defendant in the present case does
not claim that A was confused as to the identity of the
perpetrator because of prior sexual abuse similar to
the sexual abuse at issue, but, rather, that she was not
telling the truth about what had happened in the early
morning hours of January 29. Thus, insofar as the trial
court excluded the proffered evidence by relying on
the first two prongs of the Rolon test, which require
that ‘‘the prior acts clearly occurred’’ and that ‘‘the acts
closely resembled those of the present case’’; (internal
quotation marks omitted) id., 184; its reliance was mis-
placed because the defendant’s theory that A had sexual
intercourse with K three days before the alleged assault
does not fall within the exception in the rape shield
statute described in Rolon, which is applicable to evi-
dence admitted for the limited purpose of proving an
alternative source of sexual knowledge.16 See State v.
Brisco, 84 Conn. App. 120, 138–39, 852 A.2d 746
(rejecting application of Rolon test because source of
sexual knowledge not at issue), cert. denied, 271 Conn.
944, 861 A.2d 1178 (2004).
The state argues that the trial court properly declined
to admit the proffered evidence because the defendant
failed to allege facts that would have supported a finding
that the ‘‘inappropriate touching’’ and recording of the
‘‘moaning’’ he attributed to A and K was capable of
causing A’s injuries, which Cicero testified were the
likely product of nonconsensual, forcible penetration
of A’s vagina. The state thus contends that only by
means of impermissible speculation could the jury have
found that A’s injuries were the result of prior sexual
conduct with K. We disagree.
We first note that Cicero did not testify before the
trial court rendered its decision on the defendant’s
motion, and, therefore, the court did not consider his
testimony in reaching its conclusion as to whether the
jury should have been allowed to hear the defendant’s
proposed defense. Even if Cicero had already testified,
however, the defendant made allegations in support of
his defense other than those concerning the inappropri-
ate touching and the cell phone recording. These allega-
tions included that A admitted, after he allowed her to
hear the cell phone recording, that she and K were
‘‘having sex’’ while the defendant was in the shower,
that the defendant informed B about this incident, and
that B purchased a video surveillance camera after the
defendant had informed her. As previously noted, the
rape shield statute ‘‘encompasses inferential as well as
direct evidence of sexual conduct.’’ State v. Rinaldi,
supra, 220 Conn. 354. Consequently, the defendant was
not required to allege more detailed facts or rebut possi-
ble contrary evidence or testimony in order to satisfy
his burden of showing that the proffered evidence was
relevant and admissible.17
We therefore conclude that the trial court abused its
discretion by improperly precluding the defendant from
introducing the prior sexual conduct evidence in viola-
tion of his federal and state constitutional rights to
confrontation. We further conclude that, if the evidence
had been admitted, the outcome of the trial could have
been different because it was related to issues of critical
importance in the case, namely, the source of A’s injur-
ies, her credibility, and her motivation for accusing
the defendant of sexually assaulting her. Moreover, the
state’s case was not particularly strong because there
was no direct evidence that A was sexually assaulted
by the defendant. B testified on cross-examination that,
when she first entered her bedroom at the time of the
alleged assault, she saw only shadows and thus did not
actually see the defendant on top of A or having sexual
intercourse with A. B also testified that the defendant
was sitting at the foot of the bed and that A was wearing
a nightgown and sitting in the middle of the bed when
she turned on the light, that she assumed but did not
know if the defendant was wearing underwear, that
the defendant made no attempt to leave the apartment
following the incident, that she sometimes left K alone
with her other children, and that she never had seen
the defendant acting inappropriately toward A during
the many months he had lived with the family prior to
January 28. Furthermore, if the jurors heard and
believed the defendant’s testimony regarding A and K,
they also might have believed that A and B were moti-
vated to fabricate the alleged assault for the purpose
of removing the defendant from the household and cov-
ering up A’s and K’s allegedly inappropriate behavior.
Accordingly, the trial court’s preclusion of the evidence
was not harmless beyond a reasonable doubt,18 and we
reverse the judgment on that ground.19
The judgment is reversed and the case is remanded
for a new trial.
In this opinion ROGERS, C. J., and NORCOTT,
PALMER, EVELEIGH and McDONALD, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 53a-70 (a) provides in relevant part: ‘‘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 . . . .’’
2
General Statutes (Rev. to 2005) § 53-21 (a) provides in relevant part:
‘‘Any person who . . . (2) has contact with the intimate parts, as defined
in section 53a-65, of a child under the age of sixteen years or subjects a
child under sixteen years of age to contact with the intimate parts of such
person, in a sexual and indecent manner likely to impair the health or morals
of such child . . . shall be guilty of . . . a class B felony . . . .’’
3
General Statutes § 54-86f, which pertains to the admissibility of evidence
of sexual conduct, provides: ‘‘In any prosecution for sexual assault under
sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of
the sexual conduct of the victim may be admissible unless such evidence
is (1) offered by the defendant on the issue of whether the defendant was,
with respect to the victim, the source of semen, disease, pregnancy or injury,
or (2) offered by the defendant on the issue of credibility of the victim,
provided the victim has testified on direct examination as to his or her
sexual conduct, or (3) any evidence of sexual conduct with the defendant
offered by the defendant on the issue of consent by the victim, when consent
is raised as a defense by the defendant, or (4) otherwise so relevant and
material to a critical issue in the case that excluding it would violate the
defendant’s constitutional rights. Such evidence shall be admissible only
after a hearing on a motion to offer such evidence containing an offer of
proof. On motion of either party the court may order such hearing held in
camera, subject to the provisions of section 51-164x. If the proceeding is a
trial with a jury, such hearing shall be held in the absence of the jury. If,
after hearing, the court finds that the evidence meets the requirements of
this section and that the probative value of the evidence outweighs its
prejudicial effect on the victim, the court may grant the motion. The testi-
mony of the defendant during a hearing on a motion to offer evidence under
this section may not be used against the defendant during the trial if such
motion is denied, except that such testimony may be admissible to impeach
the credibility of the defendant if the defendant elects to testify as part of
the defense.’’
4
In accordance with our policy of protecting the privacy interests of
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.
5
We note that the issue at trial was whether the prior sexual conduct
had occurred within seventy-two hours, or three days, before the alleged
sexual assault, and not within forty-eight hours, as the defendant suggests
in his brief.
6
To the extent the dissent claims that the defendant satisfied his prelimi-
nary burden of proof under the first step of the two step process set forth
in § 54-86f and that the trial court held an evidentiary hearing, as required
under the second step, it misconstrues the record. Accordingly, any of the
dissent’s conclusions that are based on this misunderstanding are necessarily
suspect. For example, the dissent’s conclusion that there was a ‘‘disconnect
between what was proffered in [the defendant’s] motion and what was
presented to the court during the hearing’’; footnote 8 of the dissenting
opinion; apparently because the defendant was the only witness to testify,
is without merit because the trial court decided not to allow a further hearing
in which the defense could have questioned A, B and K about what had
happened three days before the alleged assault. Moreover, even if the dissent
is correct in concluding that the trial court conducted such a hearing, the
defendant should have been allowed to present his theory as to an alternative
source of A’s injuries for the reasons set forth in part II C of this opinion.
7
The evidence to which the motion referred was the defendant’s proposed
testimony that he observed A and K engaging in inappropriate sexual behav-
ior three days before the alleged assault, that he recorded A and K, that the
recording was consistent with the sound of persons engaging in sexual
intercourse, that he confronted A with the recording, that she admitted to
the defendant that she had just had sexual intercourse with K, that he told
B about A’s admission, and that previous statements by B confirmed that
she would testify that the defendant had told her about these events.
8
The defendant also sought permission to query A and B regarding A’s
sexual relationship with another older brother two years earlier, which A
admitted but is not relevant to the defendant’s claim regarding the admission
of the prior sexual conduct evidence involving A and K.
9
Thus, despite the trial court’s prior statement that it was not barring
anyone from testifying, its ruling that the evidence proffered by the defendant
was irrelevant and immaterial prevented the defendant from calling A, B
and K to testify at a further evidentiary hearing regarding the facts alleged
in support of his defense.
To the extent the dissent disagrees with this conclusion, it distorts the
record. The trial court made clear that it would not allow the jury to hear
any testimony by A, B and K relating to any sexual conduct between A and
K because the only relevant evidence, in the view of the court, was evidence
relating to what had happened in B’s bedroom in the early morning hours
of January 29. Given that decision and other repeated statements by the
court that the defendant’s allegations as to what had happened between A
and K three days earlier were irrelevant and immaterial, the defendant’s
only remaining option was to place the questions he wanted to ask A, B
and K on the record for appellate review, which defense counsel proceeded
to do.
Moreover, whether the court would have allowed defense counsel to
query A, B and K about sexual conduct between A and K outside the presence
of the jury, as the dissent claims; see footnote 20 of the dissenting opinion;
is of no significance. Following commencement of the trial, when defense
counsel stated that she wanted to call K as a witness, the court reiterated
that any testimony regarding what had happened three days before the
alleged assault was irrelevant and would not be admitted at trial but that,
if counsel wanted to preserve K’s testimony for appellate review, she would
be permitted to do so. The trial court thus had no interest in hearing K’s
testimony before making its decision on the defendant’s motion for reconsid-
eration, and K’s testimony would have had no effect on the trial court’s
ultimate ruling. The dissent either overlooks or fails to appreciate this fact.
10
The proposed questions to K included (1) whether K had sexual inter-
course with A any time during the three days prior to the defendant’s arrest,
(2) whether K had an ongoing sexual relationship with A, (3) whether B
was aware of the relationship, (4) whether the relationship was brought to
B’s attention by the defendant, (5) whether there was video surveillance in
the apartment, (6) whether K was aware that the video surveillance was
instituted because the defendant had discovered and confronted A and K
about their inappropriate sexual behavior, and (7) whether that was the
reason why A accused the defendant of committing the alleged assault.
11
The proposed questions to A included (1) whether the defendant ever
had accused A of engaging in inappropriate behavior with K without saying
what the inappropriate behavior was, and, if he had, (2) whether she was
aware that the defendant and K did not get along, (3) whether she was
angry at the defendant because of what he had said about A and K, (4)
whether the defendant’s claims were untrue, (5) whether A was aware that
he had told B about the allegedly inappropriate behavior, (6) whether she
knew how B had reacted to this information, (7) whether she thought the
defendant would lie about her if he no longer was living in the apartment,
and (8) whether she had had sex with anyone other than the defendant
during the three days before the alleged assault.
12
As the foregoing recitation of facts makes clear, the dissent’s claim that
the trial court did not prevent defense counsel from questioning A, B and
K regarding the defendant’s theory that K was the source of A’s injuries,
either during the initial offer of proof or later in the proceedings, is belied
by the record. The court repeatedly stated that it would not allow testimony
referring to sexual conduct between siblings and that the only relevant
testimony was that which pertained to what had happened in B’s bedroom
in the early morning hours of January 29.
13
‘‘Offers of proof are allegations by the attorney . . . in which he repre-
sents to the court that he could prove them if granted an evidentiary hearing.
. . . The purpose of an offer of proof has been well established by our
courts. First, it informs the court of the legal theory under which the evidence
is admissible. Second, it should inform the trial [court] of the specific nature
of the evidence so that the court can judge its admissibility. Third, it creates
a record for appellate review. . . . Additionally, an offer of proof should
contain specific evidence rather than vague assertions and sheer specula-
tion.’’ (Citation omitted; internal quotation marks omitted.) State v. Marti-
nez, 295 Conn. 758, 771, 991 A.2d 1086 (2010); see also State v. Conrod, 198
Conn. 592, 597, 504 A.2d 494 (1986). The offer of proof may be made in
the absence of the jury by the testimony of a witness or by a good faith
representation by counsel of what the witness would say if questioned. C.
Tait & E. Prescott, Tait’s Handbook of Connecticut Evidence (5th Ed. 2014)
§ 1.29.4, p. 94.
14
In claiming that the proposed evidence was inadmissible, the dissent
appears to focus solely on the defendant’s allegation that A admitted that
she and K were having sexual intercourse while the defendant was in the
shower. The dissent specifically claims that ‘‘the majority relies on this
inadmissible hearsay to determine that the proposed testimony was both
relevant and more probative than prejudicial.’’ Text accompanying footnote
12 of the dissenting opinion. We disagree that this evidence was not admissi-
ble. If A testified initially that she did not tell the defendant that she had
had sexual intercourse with K while the defendant was in the shower, the
defendant could have impeached her testimony with his testimony that she
admitted to having sex with K after the defendant confronted her with
the cell phone recording. See Conn. Code Evid. § 6-10 (prior inconsistent
statements admissible to impeach credibility of witness). Indeed, defense
counsel specifically argued this point during the offer of proof. Accordingly,
the trial court incorrectly concluded, as does the dissent, that A’s statement
to the defendant was inadmissible.
Moreover, we do not rely solely on the defendant’s testimony regarding
A’s admission in concluding that the defendant should have been allowed
to present his defense that he did not sexually assault A and that he was
not the cause of her injuries. Defense counsel intended to call A and K as
witnesses in the defendant’s case-in-chief and to query them directly as to
what they had been doing while the defendant was in the shower. Lastly,
and as the dissent itself acknowledges, there was other documentary and
testimonial evidence suggesting that A and K had engaged in sexual inter-
course three days before the alleged assault. See footnote 17 of this opinion.
Consequently, this evidence was relevant and admissible under the excep-
tions in the rape shield statute cited by the defendant.
The dissent further claims that the trial court made ‘‘an unchallenged
[evidentiary] ruling’’ that the defendant’s testimony regarding what A had
told him was inadmissible hearsay. Footnote 11 of the dissenting opinion.
The dissent again misreads the record. After counsel asked the defendant
to describe A’s response when she heard the cell phone recording, the state
objected on hearsay grounds, and defense counsel replied that A’s response
went to A’s state of mind and also constituted an admission. The court then
allowed the testimony, and the defendant stated that A had told him that
a ‘‘couple [of] months’’ earlier, K had come into her room, that they had
sexual intercourse at that time, and that they had been doing so ever since.
The court immediately struck this testimony without further comment.
Defense counsel next asked the defendant what A had said about the sounds
on the cell phone recording, to which the defendant responded that A stated
that she and K had sexual intercourse while the defendant was in the shower.
When the state objected to this testimony, defense counsel noted that she
had not finished her question, and the court allowed her to continue. Defense
counsel next asked the defendant if he had done anything in response to
A’s admission. At that point, a brief discussion ensued between the court
and the attorneys, and the question regarding A’s response to the cell phone
recording was played back for the court and counsel to hear. When the
court asked the state if it objected to this testimony, the state told the
court it would ‘‘withdraw [its] objection at [that] point.’’ (Emphasis added.)
Defense counsel then asked the defendant a series of questions as to what
he had done after hearing A’s admission. He replied that he had played the
recording for B, that B had then questioned A about the recording, and
that B subsequently went out to a department store with the defendant to
purchase a video surveillance camera. On cross-examination, the state asked
the defendant when he had learned that A and K were having sexual inter-
course, and he replied that it was on the day he made the cell phone
recording. During subsequent argument on the offer of proof, defense coun-
sel stated that, if A and B did not confirm the defendant’s version of events
that day, they could be impeached by his testimony. The court ultimately
concluded that the evidence was inadmissible because it was not relevant
and that it would not allow any evidence involving sex between siblings.
Accordingly, the trial court did not exclude the defendant’s testimony regard-
ing A’s admission on hearsay grounds but on relevancy grounds.
15
Even though the trial court denied the defendant’s motion on relevancy
grounds, it considered whether the proposed evidence was prejudicial,
which is typically considered only after the court has accepted an offer of
proof and conducted an evidentiary hearing to specifically address that issue.
16
The trial court also relied on State v. Kulmac, supra, 230 Conn. 43. In
that case, the defendant contended that ‘‘the multiplicity of people who
sexually abused the victims created a risk of confusion between, and mis-
identification of, the various perpetrators.’’ Id., 55. The defendant thus
claimed that ‘‘the victims may have confused which person committed which
act, and that precluding cross-examination [with respect to] this possibility
violated his right to confrontation.’’ Id. We concluded, however, that the
issue was not of constitutional magnitude because ‘‘[w]hether there is a
sufficient basis for a claim that a witness is confused, so as to permit cross-
examination that would otherwise be inadmissible, is a question of fact that
is properly left to the discretion of the trial court.’’ Id. Moreover, the trial
court in Kulmac had found that the victims did not appear confused and
that the prior abuses were too remote in time from the abuses at issue to
have caused any confusion. Id. Finally, the record did not support the
defendant’s claim in Kulmac that excluding evidence of prior abuses pre-
vented him from eliciting evidence of the victim’s bias and motive to testify
to protect the other abusers. Id., 56. Accordingly, we determined that the
trial court did not violate the defendant’s right of confrontation when it
precluded him from introducing evidence of prior sexual abuse by others.
Id. In the present case, there is no claim by the victim of multiple incidents
of sexual abuse, of confusion, or that the prior incidents of sexual abuse
were too remote in time from the incident in question. The reasoning in
Kulmac thus fails to support the trial court’s decision in this case.
17
We disagree with the dissent that, because some of the proposed evi-
dence was inferential, ‘‘no relevant evidence [was] submitted to support the
defendant’s contention that K was the source of A’s injuries.’’ As this court
noted in Rinaldi, the trial court may consider inferential evidence of sexual
conduct in determining whether the proposed evidence is relevant. See State
v. Rinaldi, supra, 220 Conn. 354. In addition, the defense planned to query
A, B and K regarding the events that transpired three days before the alleged
assault. Their testimony, which the trial court did not allow when the defen-
dant made his offer of proof because it involved sex between siblings, could
have corroborated the defendant’s testimony, in whole or in part. Finally,
after stating that the defendant must allege detailed facts to satisfy his
preliminary burden of showing that the proffered evidence was relevant,
the dissent concludes that ‘‘the defendant proffered documentary and testi-
monial evidence to support his position that A and K had engaged in sexual
intercourse three days prior to the incident for which he was charged and
that his revelation of this inappropriate sexual contact between the siblings
prompted A and B to fabricate the story that the defendant had sexually
assaulted A so that they could hide the accusations. In the motion, [the
defendant] identified a medical report and expert witness disclosure that
indicated that A’s injuries had occurred within three days of the [alleged
assault], and a social worker’s report [that] stated that B . . . informed
[the social worker] that the defendant had made such accusations, as well
as making the representation that a [video] surveillance camera had been
purchased by B to monitor her children’s behavior.’’ (Footnote omitted.)
The dissent has thus conceded that not all of the evidence the defendant
intended to introduce would have been inferential and uncorroborated and,
even more significantly, that the evidence was sufficiently detailed to satisfy
the defendant’s preliminary burden of proof.
18
The dissent claims that ‘‘[t]his decision eviscerates the rape shield stat-
ute’’ because all a defendant now must do to overcome the heavy presump-
tion against the admission of evidence pertaining to the prior sexual conduct
of an alleged victim of a sexual assault is to state that ‘‘he believes that
the victim had sexual intercourse with another person and that she made
statements to him confirming this belief, without submitting or even prof-
fering any evidence that the prior sexual conduct or the victim’s alleged
admission actually took place. A defendant can now concoct an unverified
narrative, knowing or, as in the present case, having a good faith belief,
that the victim will deny the unsubstantiated allegations’’; (emphasis in
original); thus ‘‘diluting the defendant’s burden under the rape shield statute
to the detriment of all victims of sexual assault.’’ We disagree.
Putting aside the unnecessary hyperbole in which these sentiments are
clothed, we previously have noted, and the dissent has concluded, that the
defendant satisfied his preliminary burden of showing that the proposed
evidence was potentially relevant to his defense. The only remaining issue,
from the dissent’s point of view, appears to be that the evidence was not
sufficiently precise to prove conclusively that A engaged in sexual inter-
course with K three days before the alleged sexual assault. The defendant,
however, is not required to provide conclusive evidence at such an early
stage in the proceedings. He simply must show that the proposed evidence
is relevant and admissible and that its probative value outweighs its prejudi-
cial effect.
The dissent appears to equate unverified narrative with untrue narrative,
and to ask the trial court to determine whether the evidence is sufficient
to convict the defendant. This understanding of the rape shield statute is
incorrect. It is not within the province of the trial court to decide whether
the evidence is sufficient to support the defendant’s claim that he was not
responsible for the victim’s injuries. It is within the province of the jury to
decide that question following the presentation of evidence by both parties.
Accordingly, the dissent’s fears are misplaced, and our decision today does
not eviscerate the rape shield statute or dilute the defendant’s burden
because the statute, in addition to protecting the character and reputation
of sexual assault victims, expressly protects a defendant’s constitutional
right to present a defense by permitting him to introduce relevant evidence
of the victim’s prior sexual conduct to establish that he was not the source
of her injuries. See General Statutes § 54-86f (1).
19
The defendant also claims that the trial court committed reversible error
when it improperly (1) precluded defense counsel from cross-examining A
regarding a prior, false claim of sexual assault, (2) precluded counsel from
cross-examining A regarding her prior sexual knowledge, (3) admitted into
evidence Officer Jordan’s testimony regarding B’s statement that the defen-
dant raped A under the spontaneous utterance exception to the hearsay
rule, (4) admitted into evidence a laboratory report without the testimony
of the analyst who performed the tests, in violation of the defendant’s
constitutional right of confrontation, (5) permitted Cicero to give his expert
opinion, over defense counsel’s objection, in the absence of a foundation
to testify as an expert, and (6) declined to give an instruction on the credibil-
ity of child witnesses. In light of our decision to remand the case for a new
trial, we decline to review these claims. The first and second claims involve
evidentiary matters over which the trial court exercises broad discretion.
At the defendant’s new trial, the court may make such determinations on
the basis of the then existing circumstances. Therefore, to decide these
issues as presented on appeal will not necessarily aid those determinations
at a new trial. The third claim is based on a factual determination by the
trial court as to whether there was time for reflection between the startling
occurrence and the spontaneous utterance; see State v. Kirby, 280 Conn.
361, 374, 908 A.2d 506 (2006) (‘‘Whether an utterance is spontaneous and
made under circumstances that would preclude contrivance and misrepre-
sentation is a preliminary question of fact to be decided by the trial [court].
. . . The trial court has broad discretion in making that factual determina-
tion, which will not be disturbed on appeal absent an unreasonable exercise
of discretion.’’ [Internal quotation marks omitted.]); and it is not possible
to predict how the trial court will rule at a new trial if the record should
contain different or additional testimony as to how long it was after B
discovered the defendant and A in her bedroom that she made her statement
to Jordan. The fourth and fifth claims allege procedural improprieties that
are unlikely to arise at a new trial, and the sixth claim raises an issue that
will no longer be relevant in the new trial because the witness, A, will be
at least eighteen years old.
We further note that, on retrial, testimony by A, B and K regarding the
prior sexual conduct between A and K may be elicited only after a proper
foundation has been established, most likely during the defendant’s case-
in-chief. See State v. Lugo, 266 Conn. 674, 700–701, 835 A.2d 451 (2003)
(defense counsel’s questions to state’s witnesses on cross-examination
regarding reputation of gang to corroborate defense theory that he lacked
requisite intent to commit crime of attempted robbery lacked proper founda-
tion because, until defendant had testified about his theory, which he had
not yet done, any information concerning reputation of gang was irrelevant,
and, consequently, trial court properly sustained state’s objection to this
line of questioning). Thus, insofar as the defense did not do this on direct
examination of A in the defendant’s trial, the defense could not have
advanced its theory through its cross-examination of A.