State v. Dionne

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STATE OF CONNECTICUT v.
CHRISTOPHER J. DIONNE
(AC 43775)
Prescott, Moll and Lavery, Js.
Syllabus
Convicted, after a jury trial, of the crimes of sexual assault in the fourth
degree and risk of injury to a child, the defendant appealed to this
court. Held:
1. The defendant could not prevail on his unpreserved claim that the trial
court committed plain error by permitting the victim’s mother to testify
as a constancy of accusation witness regarding statements the victim
made to her disclosing the assault perpetrated by the defendant: the
defendant’s counsel raised the issue of the victim’s delayed disclosure
of the assault at trial during his cross-examination of the victim, thus,
the court’s admission of the mother’s constancy of accusation testimony
was consistent with the procedures established by our Supreme Court
in State v. Daniel W. E. (322 Conn. 593) and contained in the applicable
provision (§ 6-11) of the Connecticut Code of Evidence; moreover, the
defendant’s claim that the victim’s disclosure of the assault within
twenty-four hours should have precluded the use of constancy of accusa-
tion testimony was an issue of first impression and, thus, the defendant
failed to establish the existence of an error so obvious it affected the
fairness and integrity of and public confidence in the judicial proceed-
ings.
2. The defendant could not prevail on his unpreserved claim that the trial
court committed plain error by admitting into evidence a videotape of the
victim’s forensic interview under the constancy of accusation doctrine
or pursuant to the medical diagnosis or treatment exception to the
rule against hearsay evidence; nothing in the record indicates that the
videotape was admitted pursuant to the constancy of accusation doc-
trine, and, as the defendant did not object to the admissibility of the
videotape on any grounds or question the victim regarding her under-
standing of the purpose of the interview during trial, the record was
inadequate to determine whether the victim understood that what she
said during the interview was for the purpose of receiving medical
diagnosis or treatment.
Argued May 10—officially released August 31, 2021
Procedural History
Substitute information charging the defendant with
one count 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 New London,
geographical area number ten, and tried to the jury
before Jongbloed, J.; verdict and judgment of guilty,
from which the defendant appealed to this court.
Affirmed.
Norman A. Pattis, for the appellant (defendant).
Samantha L. Oden, deputy assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, state’s
attorney, and Theresa Ferryman, senior assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Christopher J. Dionne,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of sexual assault in the fourth
degree in violation of General Statutes § 53a-73a (a) (1)
(A) and one count of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2). On appeal, the defen-
dant claims that the trial court improperly (1) permitted
the victim’s mother1 to testify as a constancy of accusa-
tion witness regarding statements made by the victim
to her that disclosed the sexual abuse perpetrated by the
defendant, and (2) admitted a videotape of the victim’s
forensic interview under the constancy of accusation
doctrine or pursuant to the medical diagnosis or treat-
ment exception to the rule against hearsay evidence.
The defendant concedes that both of these claims are
unpreserved and are not of constitutional magnitude.
Accordingly, he seeks to prevail under the plain error
doctrine. We conclude that the defendant has failed to
meet his high burden of demonstrating plain error and,
accordingly, affirm the judgment of conviction.
The jury reasonably could have found the following
facts. The victim was ten years old at the time the
defendant sexually assaulted her. She was best friends
with the defendant’s daughter. The defendant and his
family lived on the same street as the victim.
On November 25, 2017, the victim slept over at the
defendant’s house. At 1:30 a.m., the defendant returned
home and entered the living room where the victim was
sleeping. After awaking the victim by his presence, he
proceeded to touch and rub the victim’s buttocks and
her breasts. He also asked the victim to kiss his penis
to which she responded, ‘‘No.’’ He warned the victim
not to tell anyone about what he had done to her.
On November 26, 2017, the victim disclosed to her
mother that the defendant had touched her buttocks
and breasts. She also repeated the disclosure to a family
therapist, during which time she became physically ill.
On the following day, the victim’s mother reported
the victim’s disclosure to the Department of Children
and Families (DCF), spoke to a resident state trooper,
Kazimera Morse, and turned over to Morse clothing that
the victim had been wearing during her sleepover at the
defendant’s house. Morse informed the victim’s mother
that DCF would contact her regarding what to do next
with the ‘‘medical process.’’ DCF contacted the victim’s
mother later that day to schedule a forensic interview
of the victim.
A forensic interview of the victim was conducted on
November 29, 2017, at Yale New Haven Hospital by a
licensed clinical social worker. During the interview,
the victim disclosed in greater detail the sexual assault
committed by the defendant. Immediately following the
tion of the victim, the results of which were normal.
The defendant later admitted to the police that he
had physical contact with the victim during the
sleepover but represented that the contact had not been
sexual in nature. Subsequent DNA analysis of swabs
taken from the victim’s pajama shorts further incul-
pated, albeit not conclusively, the defendant. As a result,
the defendant was arrested in January, 2018.
At the defendant’s jury trial, the victim was the first
witness to testify. She described the sexual abuse perpe-
trated on her by the defendant, explained why she did
not disclose the abuse immediately the following morn-
ing, and stated that she first disclosed the abuse to her
mother late the following day after taking a bath. During
his cross-examination of the victim, defense counsel
asked a series of questions that suggested that she had
had various opportunities throughout the day to tell
her mother what had happened but failed to do so.
The state subsequently offered, and the court admit-
ted without objection, testimony by the victim’s mother
regarding the disclosure made to her by the victim about
the abuse the previous night. This testimony was elic-
ited in compliance within the strictures regarding con-
stancy of accusation testimony set forth in § 6-11 (c)
of the Connecticut Code of Evidence.2 The court also
gave a limiting instruction to the jury regarding the
proper use of constancy of accusation testimony.
The court also admitted without objection a video-
tape of the forensic interview of the victim. During the
interview, the victim provided additional information
regarding the sexual abuse perpetrated on her by the
defendant. This evidence was admitted for substantive
purposes. The defendant was expressly asked by the
court on two separate occasions whether he had any
objection to the admission of the videotape, and his
counsel stated that he did not.
The jury subsequently found the defendant guilty of
both charges. The court imposed a total effective sen-
tence of seven years of incarceration, suspended after
three years, followed by ten years of probation and a
$7500 fine. This appeal followed.
I
The defendant first claims that the court committed
plain error by admitting, without objection, the testi-
mony of the victim’s mother, pursuant to the constancy
of accusation doctrine, that the victim had disclosed
to her, on the day following the sleepover, that the
defendant had sexually assaulted her. Specifically, the
defendant asserts that the admission of the mother’s
testimony under the constancy of accusation doctrine
was plain error because that doctrine should not apply
in cases in which the victim’s delay in disclosing the
sexual abuse is less than twenty-four hours. We con-
clude that the defendant has failed to demonstrate that
the trial court committed plain error.
‘‘It is well established that the plain error doctrine
. . . is an extraordinary remedy used by appellate
courts to rectify errors committed at trial that, although
unpreserved [and nonconstitutional in nature], are of
such monumental proportion that they threaten to
erode our system of justice and work a serious and
manifest injustice on the aggrieved party. . . . That is,
it is a doctrine that this court invokes in order to rectify
a trial court ruling that, although either not properly
preserved or never raised at all in the trial court, none-
theless requires reversal of the trial court’s judgment
. . . for reasons of policy. . . . In addition, the plain
error doctrine is reserved for truly extraordinary situa-
tions [in which] the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . Plain error
is a doctrine that should be invoked sparingly. . . .
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernable] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable.
. . . [A] complete record and an obvious error are
prerequisites for plain error review . . . . [An appel-
lant] cannot prevail under [the plain error doctrine]
. . . unless he demonstrates that the claimed error is
both so clear and so harmful that a failure to reverse the
judgment would result in manifest injustice.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Moon, 192 Conn. App. 68, 97–99, 217
A.3d 668 (2019), cert. denied, 334 Conn. 918, 222 A.3d
513 (2020).
We next briefly summarize the constancy of accusa-
tion doctrine. ‘‘The constancy of accusation doctrine
traces its roots to the fresh complaint rule . . . [t]he
narrow purpose of [which] . . . was to negate any
inference that because the victim had failed to tell any-
one that she had been [sexually assaulted], her later
assertion of [sexual assault] could not be believed. . . .
[B]ecause juries were allowed—sometimes even
instructed—to draw negative inferences from the wom-
an’s failure to complain after an assault . . . the doc-
trine of fresh complaint evolved as a means of counter-
balancing these negative inferences. Used in this way,
the fresh complaint doctrine allowed the prosecutor to
introduce, during the case-in-chief, evidence that the
victim had complained soon after the [sexual assault].
Its use thereby forestalled the inference that the victim’s
silence was inconsistent with her present formal com-
plaint of [assault]. . . . In other words, evidence admit-
ted under this doctrine effectively served as anticipa-
tory rebuttal, in that the doctrine often permitted the
prosecutor to bolster the credibility of the victim before
her credibility had first been attacked. . . . The fresh
complaint doctrine thus constituted a rare exception
to the common-law rule that prohibited rehabilitative
evidence in the absence of an attack on the [witness’]
credibility. . . .
‘‘Presently, the constancy of accusation doctrine, as
modified by our Supreme Court in [State v. Daniel W.
E., 322 Conn. 593, 618–19, 142 A.3d 265 (2016)], permits
the victim in a sexual assault case . . . to testify on
direct examination regarding the facts of the sexual
assault and the identity of the person or persons to
whom the incident was reported. . . . Thereafter, if
defense counsel challenges the victim’s credibility by
inquiring, for example, on cross-examination as to any
out-of-court complaints or delayed reporting, the state
will be permitted to call constancy of accusation wit-
nesses subject to [certain] limitations . . . . If defense
counsel does not challenge the victim’s credibility in
any fashion on these points, the trial court shall not
permit the state to introduce constancy testimony but,
rather, shall instruct the jury that there are many rea-
sons why sexual assault victims may delay in officially
reporting the offense, and, to the extent the victim
delayed in reporting the offense, the delay should not
be considered by the jury in evaluating the victim’s
credibility. . . . A constancy of accusation witness is
limited to testifying only with respect to the fact and
timing of the victim’s complaint; any testimony by the
witness regarding the details surrounding the assault
must be strictly limited to those necessary to associate
the victim’s complaint with the pending charge, includ-
ing, for example, the time and place of the attack or the
identity of the alleged perpetrator.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
State v. Prince A., 196 Conn. App. 413, 417–19, 229 A.3d
1213, cert. denied, 335 Conn. 949, 238 A.3d 20 (2020).
The defendant’s claim of plain error regarding the
admission of the testimony of the victim’s mother war-
rants only a brief discussion. First, the defendant con-
ceded at oral argument before this court that his trial
counsel raised the issue of delayed disclosure when he
cross-examined the victim about her opportunities to
speak to her mother throughout the day following the
sexual assault. Thus, the court’s admission of the con-
stancy of accusation testimony by the victim’s mother
was entirely consistent with the procedures established
by our Supreme Court in State v. Daniel W. E., supra,
322 Conn. 593, and that are contained in § 6-11 (c) of
the Connecticut Code of Evidence. If this case plainly
did not involve a question of delayed disclosure, as the
defendant now argues, then it would have been entirely
unnecessary for his counsel to attack the victim’s credi-
bility on cross-examination by suggesting that she had
prior opportunities to disclose the sexual assault but
had not done so. Indeed, his trial counsel stated at the
charge conference that ‘‘while this may not be your
traditional late disclosure case, there is an element of
it,’’ and he agreed that the court should provide a con-
stancy of accusation instruction to the jury.
Second, the defendant’s claim on appeal that con-
stancy of accusation testimony should not have been
permitted in a case like the present one, in which the
victim disclosed the assault within twenty-four hours of
its occurrence, is not readily answered by our existing
jurisprudence. The defendant has failed to cite to any
cases holding that the constancy of accusation doctrine
is inapplicable in cases in which the delay in disclosing
the sexual assault is less than twenty-four hours. In
fact, the defendant conceded at oral argument before
this court that there was no guidance in our case law
regarding how much time must pass before a victim’s
disclosure of sexual abuse is deemed to be a delayed
disclosure. Simply put, the defendant on appeal charac-
terized this issue as being one of first impression. See
State v. Fagan, 280 Conn. 69, 88, 905 A.2d 1101 (2006)
(defendant could not prevail under plain error doctrine
with respect to issue of first impression), cert. denied,
549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).
Under these circumstances, the defendant has fallen
far short of establishing that ‘‘the existence of the error
is so obvious that it affects the fairness and integrity
of and public confidence in the judicial proceedings.’’3
(Internal quotation marks omitted.) State v. Moon,
supra, 192 Conn. App. 98. Accordingly, we reject the
claim.
II
We next address the defendant’s claim that the court
committed plain error by admitting the videotape of the
victim’s forensic interview. Specifically, the defendant
asserts that the videotape was plainly inadmissible
under (1) the constancy of accusation doctrine, or (2)
the well established exception to the hearsay rule for
statements made for purposes of obtaining medical
diagnosis or treatment because there was no medical
purpose for the forensic interview. We are not per-
suaded on this record that the court committed plain
error in admitting the videotape of the forensic inter-
view.
Because we previously set forth the standard govern-
ing claims of plain error, we need not repeat it here.
The defendant’s first contention that the trial court com-
mitted plain error by admitting the videotape of the
forensic interview under the constancy of accusation
doctrine is meritless because its underlying premise
finds no support in the record. Nothing in the record
suggests that the videotape was admitted under that
doctrine. At the time the court admitted the videotape,
it did not instruct the jury that it may not consider
the victim’s statements on the videotape as substantive
evidence as would have been required if it were con-
stancy of accusation evidence. It also did not mention
this evidence when it did provide a constancy of accusa-
tion instruction to the jury regarding the use of the
testimony of the victim’s mother about the victim’s dis-
closure to her of the sexual assault. Finally, the contents
of the victim’s statements were not limited to the per-
mitted subjects set forth in § 6-11 (c) of the Connecticut
Code of Evidence. See footnote 1 of this opinion.
Accordingly, we turn to the defendant’s second con-
tention that the trial court committed plain error by
admitting the videotape under the medical treatment
and diagnosis exception to the hearsay rule. With
respect to the admissibility of forensic interviews in
sexual assault cases, our Supreme Court recently con-
cluded that statements obtained during such interviews
are admissible for substantive purposes if the state-
ments meet the foundational requirements of the excep-
tion to the hearsay rule for statements made for pur-
poses of obtaining medical diagnosis or treatment. See
State v. Manuel T., 337 Conn. 429, 446, A.3d
(2020); see also Conn. Code Evid. § 8-3 (5); State v.
Griswold, 160 Conn. App. 528, 551–52, 127 A.3d 189,
cert. denied, 320 Conn. 907, 128 A.3d 952 (2015).
We recently described the standards of admissibility
of such interviews under the medical diagnosis and
treatment exception as follows: ‘‘A statement made for
purposes of obtaining a medical diagnosis or treatment
and describing medical history, or past or present symp-
toms, pain, or sensations, or the inception or general
character of the cause or external source thereof, inso-
far as reasonably pertinent to the medical diagnosis or
treatment. Admissibility of such statements turns on
whether the declarant was seeking medical diagnosis
or treatment, and the statements are reasonably perti-
nent to achieving those ends. . . . The rationale under-
lying the medical treatment exception to the hearsay
rule is that the patient’s desire to recover his [or her]
health . . . will restrain him [or her] from giving inac-
curate statements to a physician employed to advise or
treat him [or her]. . . .
‘‘[S]tatements may be reasonably pertinent . . . to
obtaining medical diagnosis or treatment even when
that was not the primary purpose of the inquiry that
prompted them, or the principal motivation behind their
expression. . . . Although [t]he medical treatment
exception to the hearsay rule requires that the state-
ments be both pertinent to treatment and motivated by
a desire for treatment . . . in cases involving juveniles,
our cases have permitted this requirement to be satis-
fied inferentially. . . .
‘‘[T]he statements of a declarant may be admissible
under the medical treatment exception if made in cir-
cumstances from which it reasonably may be inferred
that the declarant understands that the interview has
a medical purpose. Statements of others, including the
interviewers, may be relevant to show the circum-
stances. . . . In [State v. Manuel T., 186 Conn. App.
51, 62, 198 A.3d 648 (2018), rev’d on other grounds, 337
Conn. 429, A.3d (2020)], this court explained
that the focus of the medical treatment exception is
the declarant’s understanding of the purpose of the
interview . . . . Accordingly, the inquiry must be
restricted to the circumstances that could be perceived
by the declarant, as opposed to the motivations and
intentions of the interviewer that were not apparent to
the declarant. . . . This focus accords with the ratio-
nale for the medical diagnosis and treatment exception
that patients are motivated to speak truthfully to their
medical care providers when their own well-being is
at stake.
‘‘Under our case law, the state need only show that
the forensic interview had a medical purpose that the
declarant reasonably understood. . . . This court on
numerous occasions has upheld the admission of foren-
sic interviews where the purpose of the interview was
primarily investigative.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) State v.
Freddy T., 200 Conn. App. 577, 590–93, 241 A.3d 173(2020).
‘‘Finally, the focus on the understanding of the declar-
ant that there is a medical purpose for the interview
remains even when the declarant is a young child. The
law in Connecticut is that, although statements made
by young children are admissible under the medical
diagnosis and treatment exception to the hearsay rule,
the principle holds true that ‘[s]tatements made [in sex-
ual assault cases] . . . reciting history, causation, and
the identity of the person causing the injury should be
scrutinized to ensure that they are generated for the
proper purpose, namely treatment and not litigation.’
E. Prescott, Tait’s Handbook of Connecticut Evidence
(6th Ed. 2019) § 8.17.4 (b), p. 569 . . . . Consequently,
our case law recognizes that the age of a child some-
times necessitates allowing an inference, rather than
direct evidence, to conclude that the declarant under-
stood the purpose of the interview to be medical.’’ (Cita-
tions omitted.) State v. Freddy T., supra, 200 Conn.
App. 596–97.
In the present case, because the defendant did not
raise an objection to the admissibility of the forensic
interview, the record is mostly barren regarding evi-
dence relating to the victim’s subjective understanding
of the purpose of the interview, including whether it
was for medical diagnosis or treatment. In fact, the
defendant did not ask the victim any questions on cross-
examination regarding her understanding of the pur-
pose or purposes of the interview. Moreover, because
the defendant did not object to the admissibility of the
videotape on any grounds, the state was never put on
notice that it needed to develop further the record
regarding the victim’s subjective understanding of
whether there was a medical purpose to the interview.
At best, the record shows, as the defendant concedes,
that the victim was told at the beginning of the interview
by the social worker that ‘‘I am here to make sure that
you’re safe and that your body is healthy. . . . Some
of the people I work with are doctors and nurses and
they give the kids I talk to check-ups . . . . Everything
that I talk to kids about, the doctors and nurses can
hear . . . .’’
Under these circumstances, the defendant’s claim of
plain error founders on the requirement that ‘‘the error
is indeed plain in the sense that it is patent [or] readily
[discernable] on the face of a factually adequate record
. . . . [A] complete record and an obvious error are
prerequisites for plain error review . . . .’’ (Internal
quotation marks omitted.) State v. Moon, supra, 192
Conn. App. 98. Because the record is inadequate to
determine whether the victim understood that what
she said during the interview was for the purpose of
receiving medical diagnosis or treatment, the defen-
dant’s claim of plain error fails.4
The judgment is affirmed.
In this opinion the other judges concurred.
1
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.
2
Section 6-11 (c) of the Connecticut Code of Evidence provides in relevant
part: ‘‘[Constancy of accusation] witnesses may testify that the allegation
was made and when it was made, provided that the complainant has testified
to the facts of the alleged assault and to the identity of the person or persons
to whom the alleged assault was reported. Any testimony by the witnesses
about details of the alleged assault shall be limited to those details necessary
to associate the complainant’s allegations with the pending charge. The
testimony of the witnesses is admissible only with regard to whether the
complaint was made and not to corroborate the substance of the complaint.’’
3
We express no opinion as to how this claim may have been resolved
had it been properly preserved. See State v. Fagan, supra, 280 Conn. 89 n.14.
4
Indeed, in his brief on appeal, the defendant recognizes the weakness
of his claim by stating: ‘‘[The defendant’s] claim on this issue is easily
defeated if this court concludes that the forensic interview was not constancy
evidence at all, but was, in fact, introduced under the exception to the
hearsay rule permitting statements to medical providers.’’