State v. Daniel M.

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STATE OF CONNECTICUT v. DANIEL M.*
(AC 44355)
Alvord, Cradle and Lavine, Js.
Syllabus
Convicted of the crimes of sexual assault in the fourth degree and risk of
injury to a child, the defendant appealed to this court. At trial, the trial
court admitted the testimony of the victim, W, and W’s mother, that the
defendant physically abused W’s mother. The state offered this testimony
to explain W’s alleged delayed disclosure of sexual abuse by the defen-
dant when she was a minor. On appeal, the defendant claimed that the
court erred in admitting the allegations of domestic violence as evidence
of uncharged prior misconduct. Held that the defendant could not prevail
on his claim that the trial court abused its discretion in admitting the
uncharged misconduct evidence because it incorrectly determined that
the probative value of that evidence was not substantially outweighed
by its prejudicial effect: the evidence was relevant because, when
assessed in light of the expert testimony offered at trial regarding domes-
tic violence as a reason a victim may delay disclosure of abuse, it was
probative of W’s credibility, as it provided an explanation as to why
she delayed in disclosing the sexual abuse against her, although the
defendant did not hit W or threaten her with violence, W testified that
she observed the violence between the defendant and her mother, which
occurred on a near weekly basis, and it scared her; moreover, the
probative value of the challenged testimony was not outweighed by its
prejudicial effect, as the evidence of domestic violence between the
defendant and W’s mother was less extreme and therefore less prejudi-
cial than the uncharged domestic violence evidence considered by this
court in State v. Gerald A. (183 Conn. App. 82), and it did not tend to
unnecessarily arouse the jurors’ emotions, especially in light of the
nature of the crimes with which the defendant had been charged, namely,
sexual abuse of a child, did not create a distracting side issue as it
pertained to the credibility of the state’s key witnesses, and presentation
of the evidence did not consume an inordinate amount of time during the
trial; furthermore, the fact that the court provided a contemporaneous,
limiting instruction during the testimony about the domestic violence,
as well as a limiting instruction in its final charge to the jury, reduced
any prejudicial impact the evidence might have had.
Argued January 3—officially released March 1, 2022
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of sexual assault in the
fourth degree and risk of injury to a child, brought to
the Superior Court in the judicial district of Stamford-
Norwalk, geographical area number one, and tried to
the jury before Blawie, J.; verdict and judgment of
guilty, from which the defendant appealed to this court.
Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (defendant).
Sydney Geer, certified legal intern, with whom were
Matthew A. Weiner, assistant state’s attorney, and, on
the brief, Paul J. Ferencek, state’s attorney, Daniel
Cummings, assistant state’s attorney, Elizabeth K.
Moran, assistant state’s attorney, and Jennifer F.
Miller, former assistant state’s attorney, for the appel-
lee (state).
Opinion
ALVORD, J. The defendant, Daniel M., appeals from
the judgment of conviction, rendered after a jury trial,
of two counts of sexual assault in the fourth degree in
violation of General Statutes § 53a-73a (a) (2)1 and two
counts of risk of injury to a child in violation of General
Statutes § 53-21 (a) (2).2 On appeal, the defendant
claims that the trial court erred in admitting evidence
of uncharged prior misconduct. We disagree and, there-
fore, affirm the judgment of conviction.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of this appeal. In or about 2007,3 the defen-
dant met M. R., the victim’s mother, at a party. Although
the defendant was married with children, M. R. and the
defendant began a sexual relationship.4 Early in their
relationship, M. R. became pregnant with the defen-
dant’s daughter, M. At around the same time, M. R.
traveled to the Philippines, in order to move her daugh-
ter, W, who was born in 2002 and was five or six at the
time of the move, to the United States.5
Initially, the family, which included W, M. R., W’s
grandmother, and W’s half-sister M, lived in a very small
apartment in Norwalk. Because W’s grandmother did
not like the defendant, he would ‘‘sneak in’’ to the apart-
ment at night to be with M. R. When W was in fifth
grade, the family moved to an apartment in Stamford.
At this point, the defendant began to spend more time
in the apartment and no longer covertly arrived at night.
While the family lived in Stamford, when W was
twelve or thirteen years old, the defendant began sexu-
ally abusing W. ‘‘It started with little subtle things’’ at
first, and W became ‘‘uncomfortable physically’’ around
the defendant. ‘‘During car rides, [the defendant] would
place his hand on [W’s] upper inner thigh and force
[her] to hold his hand.’’6 This would happen every time
the defendant gave her a ride. The defendant would
also ‘‘hug [W] from behind and press himself against
[her].’’ ‘‘The feeling of him’’ made her uncomfortable
because she testified: ‘‘I would just feel that he was
aroused behind me.’’
Additionally, on weekends when her mother and
grandmother were at work and W was still in bed,7 the
defendant would climb up to her top bunk, get in the
bed, hug her from behind, and touch her breasts. As
he ‘‘cuddle[d]’’ her, she would ‘‘feel that he was
aroused.’’ In an attempt to make him stop, W would
tell the defendant that he was going to break the bunk
bed, but he would reply that it was fine. W testified
that when the defendant would do this ‘‘[it] felt like my
whole body went numb. I—even if I could try to scream
for help my mouth wouldn’t open.’’
On one occasion, in or around the summer of 2016,
M. R. and W’s grandmother were at work—watching
television in the living room. The family kept a mattress
in the living room, which they would pull out in front
of the couch when watching television. On this evening,
M was on the couch and W and the defendant were
laying on the pullout mattress (pullout mattress). While
watching television, after checking to see that M was
not looking, the defendant pulled a blanket over himself
and W and moved closer to W. He then put his hand
under W’s shirt and ‘‘grop[ed]’’ her breasts, commenting
that ‘‘[they] were coming in nicely’’ and were ‘‘a nice
shape.’’ He then ‘‘placed his hand under [W’s] pants and
underwear and touched [her] vagina’’ and whispered
to her ‘‘that it was his.’’ The defendant then forced W
to touch his erect penis and told her to ‘‘shake it.’’ W
then pretended to fall asleep, and the defendant left
the room.
Another incident occurred around the same date. W
was sitting on the pullout mattress watching television
when the defendant came into the room and laid down
on the couch. He then asked W if she could keep a
secret, grabbed W’s hand, forced her to touch his erect
penis, and asked her how it felt. W did not respond and
pretended to fall asleep, at which point the defendant
left. Although the defendant continued to touch W’s
leg and hold her hand during car rides, no subsequent
incidents of sexual abuse occurred.
At around this time, M. R. noticed a change in W’s
behavior when she was around the defendant. M. R.
testified about two incidents when W began to cry for
no clear reason. One night, when out to dinner with
the defendant and M, W began to cry and would not
tell M. R. what she was upset about. Later, on a trip to
New York City, the family was taking a ferry to see the
Statue of Liberty and W started crying and again told
her mother that she did not want to talk about what
was wrong. M. R. expressed concern to the defendant,
who responded, ‘‘she’s fine, she’s just like jealous that
we’re together with [M]. And she just want[s] attention.’’
In late September, 2016, W told her mother about
the defendant’s abuse.8 M. R. immediately called the
defendant and told him to come to the apartment right
away. When he arrived, M. R. told the defendant that
W had told her that he had ‘‘touch[ed] her private part.’’9
Initially, the defendant claimed that W was lying
because she ‘‘didn’t want him around anymore.’’ 10 He
eventually admitted to touching W and claimed that he
did it because he wanted to break up with M. R. He
later told M. R. that he did it because he wanted to get
close to W and said that ‘‘if he and [W] had like sexual
thing . . . she will feel comfortable around him.’’ M.
R. did not tell anyone about the abuse.11 The defendant
did not cease living in the apartment.12
In November, 2016, the family moved to Greenwich,
and the defendant began to spend even more time living
with the family. In early 2017, W told her aunt about
the abuse and her aunt encouraged her to tell someone
at school.13 W then told her school’s social worker, who
reported the abuse to the Stamford Police Department.
Following the police investigation, the defendant was
arrested.
Prior to trial, on July 15, 2019, the state filed a notice
of its intent to present evidence of uncharged miscon-
duct pursuant to § 4-5 (c) of the Connecticut Code of
Evidence.14 Specifically, the state notified the defendant
that it intended to present evidence ‘‘of the defendant’s
acts of domestic violence toward the mother of the
victim at times prior to the victim reporting the events
from which the current case arises.’’ The state asserted
that ‘‘[t]his evidence is relevant to corroborate crucial
prosecution testimony, to complete the story, and to
explain any alleged delay in disclosure of sexual abuse.’’
The defendant filed a written objection to the
uncharged misconduct evidence, arguing that ‘‘[t]he
probative value of such evidence is outweighed by its
prejudicial value’’ and that ‘‘the evidence would also
prolong the trial as evidence may be introduce[d] to
counter the allegation of domestic violence.’’
On September 9, 2019, a hearing was held before the
court, Blawie, J. The state argued that the uncharged
misconduct evidence would ‘‘corroborate crucial prose-
cution testimony, and [would] explain any delayed dis-
closure.’’ The state relied on State v. Gerald A., 183
Conn. App. 82, 106–10, 191 A.3d 1003 (concluding that
court did not abuse its discretion in admitting evidence
of domestic violence as uncharged misconduct evi-
dence in child sex abuse case as explanation for delayed
disclosure of abuse), cert. denied, 330 Conn. 914, 193
A.3d 1210 (2018), for the proposition that evidence of
domestic violence can show that W ‘‘had reason to fear
the defendant because he would regularly commit acts
of violence in front of her against her mother causing
injuries to her mother, and that explains in part why
she did not make an immediate disclosure when the
alleged abuse occurred.’’ Defense counsel objected to
the uncharged misconduct, arguing that the evidence
was more prejudicial than probative. Defense counsel
acknowledged, however, that Gerald A. ‘‘seem[ed] to
be on point.’’
The court then made the following oral ruling: ‘‘I
think it is pretty much on point. I understand that there’s
also maybe some statements made by either the com-
plaining witness or a family member that would under-
mine the allegations. And again it may be irrelevant on
multiple points.
‘‘But I think that I will await the evidence, but I’m
inclined to allow it if there’s an adequate foundation.
If I do allow it, I intend on using language similar, if
not identical, to the limiting instruction offered by the
trial court in State v. Gerald A. . . .
‘‘So again, I’m not necessarily granting the motion. I
am going to ask you to excuse—that the jury be excused
at the time you intend to proffer it, and then I will make
a ruling on the basis of the record as it exists at that
time. . . .
‘‘All right. If there’s an adequate foundation, I’m
inclined to allow it, but I’ll have to await the evidence.’’
On September 11, 2019, the first day of evidence, the
state called W as a witness. W testified that the defen-
dant and her mother would get into fights that often
turned physical.15 She testified that the defendant
‘‘would grab [M. R.] by the hair, grab her by the arm
and twist her arm . . . pull her hair, choke her.’’ W
testified that this violence scared her and was the rea-
son she ‘‘never liked’’ the defendant. Following this
testimony, the court gave a limiting instruction.16 W
then testified that she had observed bruises on her
mother’s arms and stomach as a result of the violence.
W also testified that once, when she was twelve years
old, she yelled at the defendant to stop hitting her
mother, and he ‘‘grabbed [W] and raised his voice . . .
and started yelling . . . .’’
The state also called M. R. during its case-in-chief.
M. R. testified that she and the defendant fought every
week, that the fights sometimes became physical, and
that the defendant would grab her, pull her hair, and
choke her.17 She also testified that W and M had wit-
nessed these verbal fights become physical. The court
then provided a limiting instruction.18
The state also presented the testimony of Lynn Nich-
ols, the director of victim’s services at the Women’s
Center of Greater Danbury and a forensic interviewer.
Nichols testified that domestic violence can be a reason
for delayed disclosure of abuse and that a victim could
‘‘fear that another family member might get hurt’’ if
they were to disclose the abuse. In addition, when asked
by the prosecutor, Nichols agreed that ‘‘if . . . the per-
son’s primary caregiver was a victim of violence by
the abuser’’ it could ‘‘affect their willingness to come
forward.’’
After the close of evidence, the court instructed the
jury with respect to this evidence as follows: ‘‘Now,
you will recall that I told you at the start of this trial
that some testimony may be admitted for a limited
purpose. Any testimony which I’ve identified as being
limited to a purpose must be considered by the jury
only as it relates to the limits for which it was allowed.
And you should not consider such testimony in finding
any other facts as to any other issue.
‘‘In this case the state has offered evidence through
both the complainant, [W], and the complainant’s
mother, [M. R.], about the defendant’s alleged acts of
domestic violence with [M. R.]. This evidence was not
admitted to prove the bad character, propensity, or
criminal tendency of the defendant. Such evidence was
admitted solely in an attempt to show or to establish a
possible reason why the complainant may have delayed
reporting the allegations of sexual assault. However,
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 a criminal
propensity. You may consider such evidence if you
believe it and if you further find that it logically, ratio-
nally, and conclusively supports the issues for which
it is being offered by the state but only as it may bear
on the issues of a possible delay in reporting.
‘‘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 issues
for which it was offered by the state, then you may not
consider that testimony for any purpose. Otherwise it
may predispose your mind uncritically to believe that
the defendant [may be] guilty of the offenses charged
merely because of alleged acts of domestic violence.
For this reason, you may consider the evidence only
on the issues of a possible reason for a delayed reporting
by [W] and for no other purposes.’’
The jury found the defendant guilty of all four counts:
two counts of sexual assault in the fourth degree in
violation of § 53a-73a (a) (2) and two counts of risk of
injury to a child in violation of § 53-21 (a) (2). The court
sentenced the defendant to a total effective term of
twenty years of incarceration suspended after eight
years followed by twenty years of probation. In addi-
tion, the court entered a standing protective order with
respect to W and M. R. and ordered lifetime registration
as a sex offender. This appeal followed.
On appeal, the defendant claims that the trial court
improperly admitted evidence of uncharged miscon-
duct in the form of the testimony of M. R. and W that
the defendant physically abused M. R. Specifically, the
defendant asserts that ‘‘[t]he trial court incorrectly
determined that the probative value of this evidence
was not substantially outweighed by its prejudicial
effect.’’ We are not persuaded.
We begin by setting forth the applicable standard of
review and legal principles 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 discretion. . . .
‘‘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. . . .
In order to determine whether such evidence is admissi-
ble, we use a two part test. First, the evidence must be
relevant and material to at least one of the circum-
stances encompassed by the exceptions.19 Second, the
probative value of [the prior misconduct] evidence 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 discretion.’’
(Citations omitted; footnote added; internal quotation
marks omitted.) State v. Gerald A., supra, 183 Conn.
App. 106.
We first address the relevance of the challenged evi-
dence. The defendant argues that the evidence had ‘‘lit-
tle to no’’ probative value for the purposes of the balanc-
ing test, suggesting that ‘‘[o]vercoming the probative
value of this evidence with undue prejudice would be
easier than ripping through a wet paper bag.’’ In making
this argument, the defendant attempts to distinguish
State v. Gerald A., supra, 183 Conn. App. 82, by compar-
ing the nature of the domestic violence evidence in that
case to the domestic violence evidence in the present
case.
In Gerald A., this court addressed the use of domestic
violence as uncharged misconduct evidence in child
sexual abuse cases and determined that the ‘‘uncharged
misconduct evidence provided an explanation for why
[the children] delayed in disclosing the sexual abuse
and, therefore, the court was correct in its determina-
tion that it was relevant because it bore on the important
issue of their credibility as witnesses.’’ Id., 108.
The defendant points out that the domestic violence
in Gerald A. included violence against the victim of the
sexual abuse, was long-standing, and involved threats
of violence against the victim if she were to disclose
the abuse. Therefore, because the defendant in this case
did not threaten W, he never hit W, and the violence
was not as ‘‘long-standing,’’20 the defendant argues that
‘‘the entire issue of domestic violence did not shed any
light on whether [W] was credible or whether there
was a legitimate reason for her delayed disclosure.’’
We disagree. Assessed in light of the expert testimony
regarding delayed disclosure, that the defendant did
not hit W or threaten her with violence does not dimin-
ish the fact that W observed the violence between the
defendant and her mother and it scared her. The evi-
dence of the domestic violence between the defendant
and M. R., which occurred on a near weekly basis, is
probative of W’s credibility as it provided an explana-
tion as to why W delayed in disclosing the sexual
abuse.21 See State v. Gerald A., supra, 183 Conn. App.
108. Therefore, we disagree with the defendant’s con-
tention that the evidence had ‘‘little to no’’ probative
value.
We next turn to whether the probative value of the
prior misconduct evidence outweighed its prejudicial
effect. See id., 106. ‘‘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 it 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., 108–109.
The defendant argues that the evidence was ‘‘danger-
ously prejudicial’’ because it unnecessarily aroused the
jurors’ emotions and created a secondary issue that
became ‘‘a side show.’’ Therefore, he asserts that
‘‘[g]iven the evidence’s scant probative value, this preju-
dicial impact outweighed its probative value and the
trial court erred in granting the state’s motion to admit
it into evidence.’’ The state contends that the probative
value of the evidence outweighed any prejudicial effect,
especially in light of the nature of the case and the
court’s limiting instructions.22 We agree with the state.
We conclude that the court did not abuse its discre-
tion in determining that the probative value of the chal-
lenged testimony was not outweighed by its prejudicial
effect. At the outset, we note that this court previously
considered uncharged misconduct evidence in State v.
Gerald A., supra, 183 Conn. App. 109, and concluded
that the trial court properly determined that the proba-
tive value of the evidence outweighed its prejudicial
effect. In that case, the state presented evidence of the
defendant hitting his children with a belt on multiple
occasions, hitting their mother in front of them, and
threatening them with violence if they disclosed the
sexual abuse as relevant to why the two children
delayed reporting the sexual abuse that they suffered
at the hands of their father. Id., 101–104. Because the
uncharged misconduct evidence was dissimilar from
the charged crimes, went to the essence of the state’s
case (i.e., the credibility of the victim-witnesses), and
did not consume an inordinate amount of time at trial,
this court concluded that the trial court did not abuse
its discretion in admitting the evidence. Id., 109–10.
Here, as the defendant points out, the evidence of
domestic violence is less extreme and, therefore, less
prejudicial, than the domestic violence evidence in Ger-
ald A., supporting our conclusion that the uncharged
misconduct evidence was properly admitted in this
case.
Furthermore, the uncharged misconduct evidence
did not tend to unnecessarily arouse the jurors’ emo-
tions, especially in light of the nature of the crimes with
which the defendant had been charged, namely sexual
abuse of a child. See id., 109; see also State v. Vega,
259 Conn. 374, 398, 788 A.2d 1221 (‘‘evidence of dissimi-
lar 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).
Moreover, despite the defendant’s assertions to the
contrary, the evidence 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., 169 Conn. App. 56, 99–100,
148 A.3d 594 (2016). Additionally, presentation of the
uncharged misconduct evidence and counterproof of it
did not consume an inordinate amount of time during
the trial.23 Therefore, the court did not abuse its discre-
tion in admitting the uncharged misconduct evidence.
Finally, the fact that the court provided a contempo-
raneous limiting instruction during both W’s and M. R.’s
testimony about the domestic violence, as well as in
its final charge to the jury, reduced any prejudicial
impact the evidence might have had.24 See State v. Gon-
zalez, 167 Conn. App. 298, 310, 142 A.3d 1227 (‘‘[w]here
. . . [t]he court also [gives] a limiting instruction imme-
diately, the prejudicial impact is lessened and the evi-
dence is more likely admissible’’ (internal quotation
marks omitted)), cert. denied, 323 Conn. 929, 149 A.3d
500 (2016); see also State v. Pereira, 113 Conn. App.
705, 715, 967 A.2d 121 (‘‘Proper limiting instructions
often mitigate the prejudicial impact of evidence of
prior misconduct. . . . Furthermore, a jury is pre-
sumed to have followed a court’s limiting instructions,
which serves to lessen any prejudice resulting from the
admission of such evidence.’’ (Internal quotation marks
omitted.)), cert. denied, 292 Conn. 909, 973 A.2d 106(2009).
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018); we decline to identify any party protected or sought to be protected
under a protective order or a restraining order that was issued or applied
for, or others through whom that party’s identity may be ascertained.
1
General Statutes § 53a-73a (a) (2) provides in relevant part: ‘‘A person
is guilty of sexual assault in the fourth degree when . . . such person
subjects another person to sexual contact without such other person’s con-
sent . . . .’’
2
General Statutes § 53-21 (a) (2) (B) provides in relevant part: ‘‘Any person
who . . . 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 for a violation of subdivision
(2) of this subsection, except that, if the violation is of subdivision (2) of
this subsection and the victim of the offense is under thirteen years of age,
such person shall be sentenced to a term of imprisonment of which five years
of the sentence imposed may not be suspended or reduced by the court.’’
General Statutes § 53a-65 (8) defines ‘‘[i]ntimate parts’’ as ‘‘the genital
area or any substance emitted therefrom, groin, anus or any substance
emitted therefrom, inner thighs, buttocks or breasts.’’
3
The defendant testified that he met M. R. in 2009. The testimony of W
and M, however, coupled with the defendant’s testimony, establishes that
they met in 2007. Given that W arrived in the United States when she was
five or six years old and was born in 2002, and because her arrival coincided
with the start of the defendant’s relationship with M. R., the two must have
met in 2007 or 2008, at the latest. We note this discrepancy but conclude
that it is immaterial to our disposition of the defendant’s claim on appeal.
4
Shortly after the defendant began the relationship with M. R., his wife
discovered the affair. The defendant then made no effort to hide that he has
dividing his time between the two women and their children. The marriage
continued until 2013. The defendant’s sexual relationship with his wife
continued after the dissolution of their marriage.
5
The defendant was unaware of W’s existence until M. R. left to pick up
W from the Philippines.
6
The defendant testified that W used to sit in the back seat of the car
whenever he gave her a ride, but she moved to the front when he encouraged
her to sit closer to him.
7
Due to the small size of the apartment, the living room also functioned
as W’s bedroom. W shared a bunk bed with her half sister, M.
8
M. R. testified that W told her that she no longer wanted the defendant
in the house because he had been touching ‘‘her private part.’’
9
The defendant testified that he assumed that M. R. had discovered his
relationship with a third woman and that was why she had called him to
the apartment.
10
Even as late as the investigation into the defendant’s conduct, the defen-
dant maintained that W was lying and told M. R. that she should send W
back to the Philippines.
11
After the confrontation, M. R. took W shopping with her grandmother.
M. R. said nothing about the abuse. W understood this as meaning the
information should be kept between the two of them.
12
In fact, the defendant only stopped living in the apartment when he was
arrested in July, 2017.
13
W testified that an incident that occurred on New Year’s Eve of 2016
impacted her decision to tell her aunt about the abuse: ‘‘We were coming
home from a New Year’s Eve party . . . . [The defendant] was drunk but
he insisted that he was going to drive. The house [we were leaving] was all
the way on top of a hill. And when he was pulling out of the driveway, he
sped all the way down the hill and we almost crashed into the tree.’’ The
defendant and M. R. then got into a ‘‘huge fight’’ which became verbal
and physical.
Although W testified that she told her aunt about the abuse in December,
2016, given this testimony about the New Year’s Eve incident, she likely
spoke to her aunt in January, 2017, and not December, 2016. We note this
discrepancy but conclude that it is immaterial to our disposition of the
defendant’s claim on appeal.
14
Section 4-5 (c) of the Connecticut Code of Evidence provides: ‘‘Evidence
of other crimes, wrongs or acts of a person is admissible for purposes other
than those specified in subsection (a), such as to prove intent, identity,
malice, motive, common plan or scheme, absence of mistake or accident,
knowledge, a system of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony.’’
15
W also testified that many of these fights were provoked by the fact
that the defendant continued to have a sexual relationship with his wife
(later ex-wife) and M. R. She also testified that M. R., and not the defendant,
was sometimes the initial aggressor.
16
The court instructed the jury as follows: ‘‘[T]he evidence that you’re
hearing, I must instruct you, that evidence is to be used by you if you decide
to use it at all, for one purpose. And that is to assess the credibility of this
witness’ testimony.
‘‘It cannot be used for any other purpose, including as substantive evidence
that the defendant is guilty or not guilty of the crimes charged in this case.
It only may be used to assess the credibility of this witness.
‘‘And you cannot use that evidence that the defendant allegedly attacked
the witness’ mother in determining whether the defendant is guilty or not
guilty of the crimes charged in this case. I will give you more instructions
on this in a moment.
‘‘But understand that this evidence is offered for a limited purpose.’’
17
M. R. testified that she and the defendant fought over the situation with
his other family and her jealousy. She also testified that sometimes she was
the one who became violent and would ‘‘scratch’’ the defendant.
18
The court instructed: ‘‘[T]his evidence is being offered for a limited
purpose and I will explain that to you more fully in my final instructions.
But recall, the defendant’s not on trial for domestic violence. All right.’’
19
‘‘Under the first prong of the test, the evidence must be relevant 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.’’ (Footnote omitted; internal quotation marks
omitted.) State v. Gerald A., supra, 183 Conn. App. 106–107.
20
We note that M. R. testified that she fought with the defendant every
week and that the relationship between M. R. and the defendant lasted
‘‘[a]bout nine years.’’
21
‘‘Issues 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 surrepti-
tiously, in the absence of any neutral witnesses.’’ (Internal quotation marks
omitted.) State v. Estrella J.C., 169 Conn. App. 56, 98, 148 A.3d 594 (2016);
see also footnote 19 of this opinion.
22
The state also argues that that the defendant’s claim is not preserved
because ‘‘the trial court expressly deferred its ruling on the admissibility of
the uncharged misconduct evidence until the state presented such evidence’’
and the defendant was required to object to the evidence when it was
presented at trial in order to preserve the claim of evidentiary error. Thus,
the state asserts that the defendant’s claim is unreviewable for lack of a
final ruling. The defendant, however, argues that the court’s ‘‘ruling was
unambiguous that the evidence was coming in subject to the state’s ability
to lay foundation’’ and that because he objected and the objection was
overruled, he ‘‘had no further role in this procedure.’’
Here, the defendant objected to the evidence and the court held a hearing,
ruled that, barring a lack of foundation, the evidence was admissible, noted
that it would provide a limiting instruction along with the evidence, and
provided such a limiting instruction. Further, we agree with the defendant’s
assertion in his reply brief that the cases on which the state relies fail to
support its contention that the defendant’s claim is not preserved. Therefore,
we conclude that the defendant’s claim is reviewable.
23
Further, there was no surprise because the state notified the defendant
of its intent to present this evidence and court held a hearing and gave the
defendant the opportunity to be heard on the issue. See State v. Gerald A.,
supra, 183 Conn. App. 109–10.
24
The defendant asks us to disregard our long-standing rule that a jury
is presumed to have followed a court’s limiting instruction. The defendant
argues that ‘‘[s]omewhere, in sorting out these salacious details and watching
this drama play out in the courtroom, the jury was supposed to limit their
consideration of evidence of domestic violence to explain why [W] should
be believed and why she delayed her disclosure. That would have been next
to impossible. The jury was put on a street corner at the time of a car crash
and told to look away. The jury’s task was beyond the limits of human nature,
they could not have been expected not to be offended by this evidence.’’
According to the defendant, the ‘‘noxious cocktail of the facts of the case’’
was ‘‘too much for the jury to bear.’’ As the state correctly points out in its
brief to this court, however, ‘‘[t]hat argument finds no support in either the
law or the record.’’ See State v. Pereira, 113 Conn. App. 705, 715, 967 A.2d
121, cert. denied, 292 Conn. 909, 973 A.2d 106 (2009). Consequently, we
reject it.