State v. Ezequiel R.

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STATE OF CONNECTICUT v. EZEQUIEL R. R.*
(AC 40846)
Keller, Elgo and Beach, Js.
Syllabus
Convicted of the crimes of aggravated sexual assault of a minor, sexual
assault in the first degree, risk of injury to a child, and sexual assault
in the fourth degree in connection with his alleged sexual abuse of the
minor victim, the defendant appealed. The trial court held a hearing on
the admissibility of a video recording of a forensic interview of the
victim by a clinical child interview specialist, C, and ruled that certain
statements made during that interview were admissible pursuant to the
medical diagnosis or treatment exception to the hearsay rule. On appeal,
the defendant claimed, inter alia, that the trial court erred by admitting
into evidence the video recording of the forensic interview because the
primary purpose of the interview was to obtain from the victim facts
of the alleged sexual abuse to assist in a criminal investigation, and
medical treatment was merely a secondary motive. Held:
1. The trial court properly determined that the victim’s statements made
during the forensic interview fell within the medical diagnosis or treat-
ment exception to the hearsay rule and, thus, did not abuse its discretion
in admitting the video recording of the forensic interview into evidence:
the defendant’s reliance on the ‘‘primary purpose’’ standard for determin-
ing the admissibility of the victim’s statements under the medical diagno-
sis or treatment exception to the hearsay rule was misplaced, as
statements during a forensic interview of a child that are offered solely
under the medical diagnosis and treatment exception are admissible if
such statements are reasonably pertinent to obtaining medical diagnosis
or treatment, even if the primary purpose of the declarant’s statements
was not to obtain medical diagnosis and treatment, and in the present
case there was sufficient evidence in the record to demonstrate that
the victim’s statements to C were reasonably pertinent to obtaining
medical diagnosis and treatment to satisfy the requirement of that excep-
tion to the hearsay rule in light of the circumstances leading up to the
victim’s interview, the fact that the interview took place in a hospital,
C’s statements to the victim during the interview, including C’s statement
informing the victim that their conversation would be video recorded
in case C or a doctor had any questions later on, and the fact that the
victim did obtain a medical examination and was referred for therapy;
furthermore, the presence of a police officer behind a one-way mirror
during the interview, or the victim’s knowledge that a police officer was
observing the forensic interview, did not preclude the victim’s state-
ments from falling within the medical diagnosis or treatment exception
to the hearsay rule.
2. The defendant’s unpreserved claim that the trial court improperly allowed
C to render an expert opinion that appeared to be based on the facts
of the case was not reviewable: defense counsel’s initial objection to
C’s testimony in the absence of the jury did not sufficiently raise the
issue that the testimony was indirectly vouching for the credibility of
the victim, as defense counsel emphasized that the testimony regarding
the victim’s delayed disclosure did not corroborate that the alleged
abuse actually occurred and did not adequately apprise the court that
C’s use of hypotheticals impermissibly suggested that she was indirectly
vouching for the victim’s credibility, and, thus, the defendant was not
relieved of his duty to make further objections if he thought C impermis-
sibly related her testimony to the facts of the case; furthermore, after
the jury reentered the courtroom, defense counsel objected for the first
time to C’s testimony on the ground that C was relating her testimony
to the facts of the case, the trial court addressed that objection by
providing a curative instruction, defense counsel subsequently objected
again to an answer given by C but immediately withdrew his objection
and did not object when C then provided an answer that is the subject
of the present appeal, and, thus, defense counsel’s failure to object to
the portions of C’s testimony challenged on appeal demonstrated that
defense counsel did not believe that C’s statements were improper or
that he was satisfied with the curative instruction the court pre-
viously provided.
Argued May 17—officially released August 7, 2018
Procedural History
Substitute information charging the defendant with
the crimes of aggravated sexual assault of a minor and
sexual assault in the fourth degree, and with two counts
of the crime of sexual assault in the first degree and
four counts of the crime of risk of injury to a child,
brought to the Superior Court in the judicial district of
New Britain, where the court, D’Addabbo, J., denied
the defendant’s motion to preclude certain evidence;
thereafter, the matter was tried to the jury; subse-
quently, the court granted in part the defendant’s
amended motion to preclude certain evidence; there-
after, the court denied the defendant’s motions for a
judgment of acquittal; verdict of guilty; subsequently,
the court denied the defendant’s motion for a new trial,
granted in part the defendant’s amended motion for a
judgment of acquittal, and vacated the verdict of guilty
as to one count of sexual assault in the first degree and
one count of risk of injury to a child; judgment of guilty
of aggravated sexual assault of a minor, sexual assault
in the first degree, sexual assault in the fourth degree
and three counts of risk of injury to a child, from which
the defendant appealed. Affirmed.
Justin T. Smith, for the appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Christian M. Watson, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Ezequiel R. R., appeals
from the judgment of conviction, rendered following a
jury trial, of one count of aggravated sexual assault of
a minor in violation of General Statutes § 53a-70c (a)
(1), one count of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2), three
counts of risk of injury to a child in violation of General
Statutes § 53-21 (a) (2), and one count of sexual assault
in the fourth degree in violation of General Statutes
§ 53a-73a (a) (1) (A).1 On appeal, the defendant claims
that the trial court erred by (1) admitting into evidence
a video recording of a forensic interview between a
clinical child interview specialist and the child victim,
and (2) allowing the clinical child interview specialist
to render an expert opinion that appeared to be based
on the facts of the case. We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. The victim was born on December 22, 2000, in
Buffalo, New York. The victim’s biological mother and
biological father ended their relationship when she was
two years old and the victim’s mother began a relation-
ship with the defendant shortly thereafter. During their
near decadelong relationship, the defendant moved in
with the victim and her mother, and the defendant and
the victim’s mother had two daughters together, one
born in 2006 and one in 2009. Between approximately
2009 and 2012, the defendant sexually assaulted the
victim in different residences that the defendant shared
with the victim, the victim’s mother, and the victim’s
two younger siblings.
In 2009, when the assaults first began, the family
was living in a two bedroom apartment in Rocky Hill.
Around this time, on a few different occasions, the
defendant asked the victim to play the ‘‘ah game’’ with
him when her mother was at work and her younger
siblings were napping. On the first occasion, the victim
thought the defendant was asking her to play a board
game with him. Instead, the defendant led the victim
to his bedroom, proceeded to pull down his pants, and
lay with her on the bed. He instructed her ‘‘to open up
[her] mouth and say ah and put [her] mouth on his
penis,’’ and then told her ‘‘that all boys and girls . . .
played the game . . . .’’ The victim followed the defen-
dant’s demands and stopped a couple minutes later
when she no longer wanted to do it. The defendant
made the victim do this on multiple occasions.
In September, 2010, the family moved into another
two bedroom apartment in Rocky Hill. At this new
apartment, the defendant routinely climbed into the
victim’s bed with her in the morning and proceeded to
inappropriately touch her.2 He would lie behind the
victim with her back to his chest and would touch her
breasts and vagina under her clothes with his hand.
During this time, the victim could feel the defendant’s
erect penis against her back as he lay behind her.
On a different occasion, while the victim’s mother
was in the shower and the victim was eating lunch in
the kitchen of the apartment, the defendant threw the
victim over his shoulder and carried her into his bed-
room. Against her will, he ‘‘pinned [her] onto the bed,’’
pulled down her pants, and proceeded to lick her vagina.
The victim tried to use her hands to push him away,
but she was not strong enough to do so. After a couple
of minutes, the defendant stopped holding her down;
the victim pulled her pants up and yelled at the defen-
dant. The defendant threatened the victim by telling
her that she was ‘‘going to go out there and act happy
or else he was going to drown [her] and [her] mom in
a river.’’ The victim did not report this incident to any-
one at the time because she was ‘‘scared that he would
hurt [her] and [her] mom.’’
The defendant and the victim’s mother eventually
ended their relationship. The victim, her mother, and
her two siblings moved into an apartment in Hartford
without the defendant, and in June, 2014, the then thir-
teen year old victim disclosed to her mother some of
the things that the defendant had done to her beginning
when she was eight or nine years old.
The next day, on June 27, 2014, the victim’s mother
brought her to the Connecticut Children’s Medical Cen-
ter in Hartford. The victim spoke with the doctors and
told them about the defendant’s sexual interactions
with her. At the conclusion of that consultation, the
emergency room doctor referred her to the Greater
Hartford Children’s Advocacy Center at Saint Francis
Hospital and Medical Center.
On July 9, 2014, the victim was interviewed at the
Greater Hartford Children’s Advocacy Center by Lynd-
sey Craft, a clinical child interview specialist. This inter-
view was recorded on video and was observed by a
doctor, two medical residents, a Department of Chil-
dren and Families (department) worker, and a detective
from the Rocky Hill Police Department, who all
observed from behind a one-way mirror.3 The victim
spoke with Craft and described her physical encounters
with the defendant. On the basis of the victim’s disclo-
sures during her interview, Detective Frank Dannahey
of the Rocky Hill Police Department prepared an arrest
warrant for the defendant, and he was arrested. At trial,
the victim testified about the assaults the defendant
subjected her to. In addition, the jury heard testimony
from Craft about her work with the Greater Hartford
Children’s Advocacy Center and about her interview
with the victim. The video of the interview was also
played for the jury. At the conclusion of the trial, the
jury found the defendant guilty on all counts. The trial
court sentenced him to a total effective sentence of
twenty-five years incarceration, followed by ten years of
special parole. This timely appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims that the court erred by
admitting into evidence, pursuant to the medical diag-
nosis or treatment exception to the hearsay rule, the
video recording of the forensic interview between Craft
and the victim. We disagree.
The following additional facts and procedural history
are relevant to this claim. On March 11, 2016, the defen-
dant filed a motion in limine to preclude the video
recording of the victim’s forensic interview with Craft
from being admitted into evidence, arguing that the
video recording contains hearsay, and that ‘‘no hearsay
exception applies, including the medical treatment
exception.’’ A motion hearing was held on three sepa-
rate days in April, 2016, prior to the commencement of
the trial, and the court heard testimonial evidence from
Craft and Nancy Eiswirth, the defendant’s expert wit-
ness, who opined about the purposes of Craft’s inter-
view with the victim.
At the hearing, Craft testified about her educational
background in social work and her job as a clinical child
interview specialist for the Greater Hartford Children’s
Advocacy Center. She testified that when the victim
and her mother first arrived at the center, the victim’s
mother was required to sign Health Insurance Portabil-
ity and Accountability Act of 1996 (HIPAA), 42 U.S.C.
§ 1320d et seq., compliant release forms because the
interview was going to be made part of the victim’s
medical record. After these administrative tasks were
completed, Craft indicated that she met with the victim
alone in one of the adolescent interview rooms to speak
with her. Craft testified that these types of interviews
are recorded to ‘‘minimize the amount of times a child
needs to speak about the same event.’’4
Furthermore, when asked what Craft thought the
‘‘most important or primary purpose’’ of the interviews
she conducted was, Craft responded that it was to ‘‘for-
mulate the treatment . . . which the child is going to
receive, whether it be . . . medical treatment or thera-
peutic treatment, counseling, [or] therapy.’’ Craft went
on to testify about her interview with the victim and
indicated that she conducted it in a neutral and nonlead-
ing way. Based on the victim’s statements to Craft about
the assaults, Craft recommended that the victim have
a thorough medical examination with one of the medical
professionals at the Greater Hartford Children’s Advo-
cacy Center and recommended that the victim begin
therapy. Craft testified that the victim did receive an
examination by Nina Livingston, a medical doctor, fol-
lowing the interview with her. Craft testified that Living-
ston serves as the medical director at the Greater
Hartford Children’s Advocacy Center, and is also the
medical director of the Suspected Child Abuse and
Neglect program at Connecticut Children’s Medical
Center.
During the parties’ arguments on the motion, defense
counsel argued, inter alia, that the responses elicited
from the victim were ‘‘not obtained for medical pur-
poses [because] there was no diagnosis obtained’’ and
that ‘‘Craft’s interview itself [was] not medically coded
and that she did not provide any reasons going forward
that there was a medically needed reason for a diagno-
sis.’’ The state responded by arguing that the victim’s
statements to Craft ‘‘were reasonabl[y] pertinent to
obtain medical diagnosis or treatment and that . . .
Craft sufficiently occupied a position within the chain
of medical care to bring [the victim’s] statement within
the scope’’ of the exception. The state highlighted the
fact that ‘‘after the interview was done, [Livingston]
based her medical treatment or her medical exam
around the questions and answers that [the victim] pro-
vided to . . . Craft.’’
On April 25, 2016, the court denied the motion to
preclude the video recording of the forensic interview
and later provided a written articulation of its decision.
The court stated, in relevant part, that ‘‘[i]t should be
noted that the definition of medical health provider in
the stream of medical treatment has been expanded by
our case law to include a social worker,’’ citing to State
v. Cruz, 260 Conn. 1, 10, 792 A.2d 823 (2002). After
considering everything before it, the court found that
the victim’s ‘‘purpose was to obtain medical diagnosis
and treatment and that the examiner was competent
in achieving that result.’’ The court then considered
whether the ‘‘presence of the Rocky Hill police, a repre-
sentative of [the department], and medical personnel
alter [the victim’s] purpose?’’ (Internal quotation marks
omitted.) The court found that the ‘‘presence of these
individuals does not supplant [the victim’s] purpose.
The examiner’s goal was to obtain appropriate medical
treatment for [the victim]. [Craft] did not consult with
[the department] or the police prior to the interview and
received no requests for clarification of [the victim’s]
answers. . . . Dr. Livingston followed the interview
with an examination, and the [victim] was involved in
therapy. Medical assistance and mental health therapy
sometimes is necessary, even if there are no visible
wounds. Testimonial evidence at the hearing was that
the [victim] had spoken to the Rocky Hill police prior
to the interview. The criminal investigation had already
begun prior to the interview.’’ As such, the court reem-
phasized that the ‘‘credible evidence presented at the
hearing was that the information was presented from
[the victim] for medical diagnosis and treatment,’’ and
that the court considered it ‘‘trustworthy.’’
On April 24, 2016, the defendant filed an amended
motion in limine requesting that in the event the court
permitted the jury to view the video recording, that it
preclude certain statements from being played to the
jury. On the second day of trial, the court addressed
the motion, determining that some of the statements
in question were not relevant for the purposes of diagno-
sis or medical treatment. Thus, the court granted the
motion in part, and denied it in part. Consistent with
the court’s ruling, the video was redacted to omit certain
statements that the court determined were not relevant.
On the third day of trial, the state offered the video
recording redacted in accord with the court’s ruling.
The court acknowledged the defendant’s previous
objection, made note of its ruling, and admitted the
video recording into evidence.5 The state proceeded to
play the video for the jury.
We begin our analysis by setting forth our well estab-
lished standard of review for evidentiary claims. ‘‘To
the extent [that] a trial court’s admission of evidence
is based on an interpretation of the Code of Evidence,
our standard of review is plenary. For example, whether
a challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. . . . We review the trial court’s decision to
admit evidence, if premised on a correct view of the
law, however, for an abuse of discretion. . . . In other
words, only after a trial court has made the legal deter-
mination that a particular statement is or is not hearsay,
or is subject to a hearsay exception, is it vested with
the discretion to admit or to bar the evidence based
upon relevancy, prejudice, or other legally appropriate
grounds related to the rule of evidence under which
admission is being sought.’’ (Internal quotation marks
omitted.) State v. Griswold, 160 Conn. App. 528, 536,
127 A.3d 189, cert. denied, 320 Conn. 907, 128 A.3d
952 (2015).
At the outset, it is important that we note that the
defendant does not make a sixth amendment constitu-
tional challenge to the admission of the video recording.
He concedes, as he must, that such a challenge cannot
be made because the victim, who was interviewed in
the video recording, testified at trial. As our case law
has made manifest, when a victim appears at trial and
is subject to cross-examination by the defendant, Craw-
ford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.
Ed. 2d 177 (2004), and its progeny do not apply. See
State v. Estrella J.C., 169 Conn. App. 56, 70, 148 A.3d
594 (2016).
The defendant, relying primarily on State v. Arroyo,
284 Conn. 597, 935 A.2d 975 (2007), argues that the
‘‘primary purpose’’ standard is the proper standard for
determining admissibility under the medical diagnosis
or treatment exception to the hearsay rule, and that the
court failed to apply it. Arroyo involved a confrontation
clause challenge to the admission of a forensic inter-
view. See id., 615, 625. The defendant claims that
because the declarant was available to testify at trial
in Arroyo, and because our Supreme Court ‘‘still con-
ducted an analysis of whether the statements were testi-
monial under Crawford,’’ the primary purpose standard
is applicable here.6 We find this argument unpersuasive.
As this court has previously noted, ‘‘[a]fter our Supreme
Court decided . . . Arroyo . . . and State v. Maguire,
310 Conn. 535, 563–71, 78 A.3d 828 (2013), it was unclear
whether statements made during a forensic interview
were inadmissible unless the primary purpose of the
interview was for medical diagnosis or treatment. Sub-
sequent to those cases, this court decided in Griswold
that, if statements made during a forensic interview of
the child are offered solely under the medical diagnosis
and treatment exception, and the child is subject to
cross-examination at trial, then such statements need
only be reasonably pertinent to medical diagnosis and
treatment to be admissible. . . . Accordingly, pursuant
to Griswold, such statements are admissible even if the
primary purpose of the declarant’s statements was not
to obtain medical diagnosis and treatment.’’ (Citation
omitted; emphasis in original.) State v. Eddie N. C., 178
Conn. App. 147, 172 n.13, 174 A.3d 803 (2017), cert.
denied, 327 Conn. 1000, 176 A.3d 558 (2018). As such,
the defendant’s reliance on the ‘‘primary purpose’’ stan-
dard in Arroyo is misplaced.
Having determined that no Crawford challenge is
present on appeal, and guided by Griswold, we con-
clude that the applicability of the medical diagnosis
and treatment exception to the hearsay rule must be
determined on the merits of the exception itself, not
by using the primary purpose standard. As to the rele-
vant law, ‘‘[i]t is well settled that . . . [a]n out-of-court
statement offered to prove the truth of the matter
asserted is hearsay and is generally inadmissible unless
an exception to the general rule applies.’’ (Internal quo-
tation marks omitted.) State v. Carrion, 313 Conn. 823,
837, 100 A.3d 361 (2014); Conn. Code Evid. § 8-2. Section
8-3 (5) of the Connecticut Code of Evidence titled,
‘‘Statement for purposes of obtaining medical diagnosis
or treatment,’’ provides an exception to the hearsay
rule, requiring that the statement be ‘‘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.’’ (Emphasis added.) Conn. Code Evid. § 8-3
(5). ‘‘The rationale underlying the medical treatment
exception to the hearsay rule is that the patient’s desire
to recover [her] health . . . will restrain [her] from
giving inaccurate statements to a physician employed
to advise or treat [her].’’ (Internal quotation marks omit-
ted.) State v. Cruz, supra, 260 Conn. 7.
Additionally, the statement sought to be excluded
from the hearsay rule need not be made to a physician
so long as the person is acting within the chain of
medical care.7 Id., 10 (finding that social worker can act
within chain of medical care). ‘‘Although [t]he medical
treatment exception to the hearsay rule requires that
the statements be both pertinent to treatment and moti-
vated by a desire for treatment . . . in cases involving
juveniles, our cases have permitted this requirement to
be satisfied inferentially.’’ (Citation omitted; internal
quotation marks omitted.) State v. Telford, 108 Conn.
App. 435, 441–42, 948 A.2d 350, cert. denied, 289 Conn.
905, 957 A.2d 875 (2008). Thus, ‘‘statements of a declar-
ant may be admissible under the medical treatment
exception if made in circumstances from which it rea-
sonably 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 circumstances.’’ (Emphasis omitted.) State
v. Abraham, 181 Conn. App. 703, 713, A.3d ,
cert. denied, 329 Conn. 908, A.3d (2018).
In the present case, we have little difficulty conclud-
ing that there was sufficient evidence in the record to
demonstrate that the victim’s statements to Craft were
reasonably pertinent to obtaining medical diagnosis and
treatment to satisfy the requirements of the medical
diagnosis or treatment exception to the hearsay rule.
To begin, after the victim first visited Connecticut Chil-
dren’s Medical Center, an emergency room doctor
referred her to the Greater Hartford Children’s Advo-
cacy Center. After arriving at the Greater Hartford Chil-
dren’s Advocacy Center, located on the premises of
Saint Francis Hospital and Medical Center, for the
forensic interview, the victim met with Craft in one of
the adolescent interview rooms to speak about what
had happened to her. At the beginning of their conversa-
tion, Craft informed the victim that their conversation
would be video recorded in case Craft or the doctor
had any questions later on. Craft informed the victim
that this was done so that they did not have to keep
asking the victim questions ‘‘over and over and over
again.’’
Furthermore, during the motion in limine hearing,
Craft testified that the victim was reporting ‘‘significant
contact that could indeed pass along [sexually transmit-
ted diseases], as well as other sexually transmitted
infections.’’ Craft also testified that although the victim
had no physical complaints at the time, she seemed to
exhibit some symptoms of post-traumatic stress disor-
der. Based on Craft’s interview with the victim, she
recommended the victim have a thorough medical exam
with one of the medical professionals at the Greater
Hartford Children’s Advocacy Center, and also that she
begin therapy. The video recording of the victim’s inter-
view with Craft, in addition to a report Craft prepared
at the conclusion of the interview, were made part of
the victim’s medical record. Following the interview,
Craft spoke with Livingston to ensure that Livingston
understood everything that Craft obtained from the
interview, and based on Craft’s recommendation, the
victim did in fact obtain a medical evaluation by Living-
ston. The circumstances leading up to the victim’s inter-
view, the location where the interview took place,
Craft’s statements to the victim during the interview,
and the fact that the victim did obtain a medical exami-
nation and was referred for therapy, could lead an
objective observer to reasonably infer that the victim’s
statements were given in order to obtain medical treat-
ment and diagnosis. See State v. Abraham, supra, 181
Conn. App. 713.
The defendant argues that the primary purpose of
the forensic interview was to obtain from the victim
facts of the alleged sexual abuse to assist in a criminal
investigation but concedes, however, that the second-
ary motive was for medical treatment. Even if we were
to assume the defendant is correct that the primary
purpose was not for medical treatment, statements
from the victim nevertheless may be admissible so long
as there is sufficient evidence that the statements were
reasonably pertinent to obtaining medical diagnosis and
treatment. See State v. Griswold, supra, 160 Conn. App.
552–53, 557; see also State v. Donald M., 113 Conn.
App. 63, 71, 966 A.2d 266 (forensic interview statements
admissible under medical diagnosis and treatment
exception because purpose of interview was, at least
in part, to determine whether victim was in need of
medical treatment), cert. denied, 291 Conn. 910, 969
A.2d 174 (2009).
The defendant focuses his argument on the fact that
there was some police involvement surrounding the
interview. He argues, in part, that the presence of a
police officer behind the one-way mirror during the
interview demonstrates that the purpose of the inter-
view was not for medical treatment or diagnosis. Addi-
tionally, he argues that the victim was well aware that
there was police involvement and that her words were
going to be used against the defendant. Even so, the
mere presence of a police officer behind a one-way
mirror or even the victim’s knowledge that a police
officer was observing the interview does not preclude
a statement from falling within the medical diagnosis
and treatment exception. See State v. Miller, 121 Conn.
App. 775, 783, 998 A.2d 170 (purpose of interview was
for medical treatment even though victim knew that
police officers were present during interview), cert.
denied, 298 Conn. 902, 3 A.3d 72 (2010). Craft testified
that she did not discuss anything with the police officer
prior to her interview with the victim, and even when
Craft consulted with the people standing behind the
mirror during a brief break, the police officer did not ask
Craft to ask any additional questions. Although many
of Craft’s questions did focus on determining what had
happened to the victim in her encounters with the defen-
dant, we find the record sufficient to conclude that the
victim’s statements made during the forensic interview
with Craft were reasonably pertinent to her receiving
medical treatment and diagnosis.
Accordingly, we conclude that the court properly
determined that the victim’s statements made during
the forensic interview fell within the medical diagnosis
and treatment exception to the hearsay rule. The court
did not abuse its discretion in admitting the video
recording of the forensic interview into evidence.
II
The defendant’s second claim on appeal is that the
court improperly allowed Craft to render an expert
opinion that appeared to be based on the facts of the
case. Specifically, he argues that three statements Craft
made during her testimony were admitted in violation
of State v. Favoccia, 306 Conn. 770, 51 A.3d 1002 (2012),
in which our Supreme Court concluded that concerns
about indirect vouching for the credibility of witnesses
require our courts to limit expert testimony about the
behavioral characteristics of child sexual assault vic-
tims to that which is stated in general or hypothetical
terms. Id., 803–805. Because the defendant did not pre-
serve this claim for appellate review, we decline to
review it.8
‘‘The standard for the preservation of a claim alleging
an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . Our rules of practice make it clear that when
an objection to evidence is made, a succinct statement
of the grounds forming the basis for the objection must
be made in such form as counsel desires it to be pre-
served and included in the record. . . . In objecting to
evidence, counsel must properly articulate the basis of
the objection so as to apprise the trial court of the
precise nature of the objection and its real purpose, in
order to form an adequate basis for a reviewable ruling.
. . . Once counsel states the authority and ground of
his objection, any appeal will be limited to the ground
asserted. . . .
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush.’’ (Inter-
nal quotation marks omitted.) State v. Francis D., 75
Conn. App. 1, 8, 815 A.2d 191, cert. denied, 263 Conn.
909, 819 A.2d 842 (2003); see also Practice Book § 60-
5 (appellate courts not bound to consider claim of error
unless it was distinctly raised at trial or arose subse-
quent to trial).
We briefly rehearse additional facts relevant to this
claim. On day three of the trial, the prosecutor asked
Craft if it was normal for a child that is sexually abused
to ‘‘tell someone what happened right after the inci-
dent.’’ After Craft responded, ‘‘No,’’ defense counsel
objected to the question itself and to the line of ques-
tioning in general. Outside the jury’s presence, defense
counsel questioned whether Craft was ‘‘qualified to be
able to give . . . verified scientific information as to
what children do if they are abused.’’ After being given
the opportunity to voir dire the witness, defense counsel
agreed that the witness ‘‘can talk about the issue of
delayed disclosure . . . .’’ Defense counsel argued,
however, that testimony concerning delayed disclosure
was permissible, ‘‘[s]o long as the limitation is . . .
that the fact that there was a delayed disclosure is not
corroborative or any proof that anything occurred.’’
After hearing the prosecutor’s assurances that this type
of question would not be asked, the court responded
to defense counsel’s concerns by noting: ‘‘I don’t think
that question is going to be asked. If that question is
asked, I know how to answer that—I know how to
rule on that.’’ The court asked defense counsel if it
addressed his concerns and if the issue had been
resolved. Defense counsel responded that ‘‘the court’s
ruled, and we’ll move forward.’’ The court responded:
‘‘Okay. I just—whether or not you agree with my ruling
is fine. I just want to make sure I covered what you
raised.’’ Defense counsel responded, ‘‘You have.’’
Shortly after the jury reentered the courtroom and the
prosecutor continued his questioning, defense counsel
objected to a question asked by the prosecutor. The
prosecutor asked Craft: ‘‘[W]hen a child is sexually
abused, do they normally tell someone what happened
right after the incident happens?’’ Defense counsel
argued that the ‘‘question assumes an abuse has
occurred.’’ In response, the court asked the prosecutor
to rephrase the question, and the prosecutor did so.
Soon thereafter, defense counsel objected to one of
Craft’s responses to a question. This time, he argued
that the testimony impermissibly related to the facts of
the case. In response, the court sustained the objection
and issued a sua sponte curative instruction stating that
‘‘Craft is testifying as based on her experience. You are
to determine whether it applies in this case or not.’’
After the next question was asked, defense counsel
objected on the same ground but immediately withdrew
the objection before the court could inquire further.
Thereafter, the prosecutor asked Craft: ‘‘What fac-
tors, based on the job that you do, affect when a child
ultimately discloses sexual abuse? Are there certain
factors?’’ Craft provided an answer that is the subject
of the present claim.9 The defendant argues that the
testimony was inadmissible because it indirectly related
the facts of this case to her testimony. The defendant,
however, did not object to the question or the tes-
timony.
The defendant asserts on appeal that he was not
required to make any further objections after the state-
ments he now challenges on appeal were made. The
defendant claims that because trial counsel raised the
issue of Craft’s ‘‘testimony being construed as vouching
for the credibility of the victim outside of the presence
of the jury and because the court ruled upon that
motion,’’ Practice Book § 60-5 requires no further
objection.10
We disagree with the defendant’s reliance on Practice
Book § 60-5. Contrary to the defendant’s argument, trial
counsel’s initial objection in the absence of the jury did
not sufficiently, or at all, raise the issue that Craft’s
testimony was indirectly vouching for the credibility of
the victim. Instead, defense counsel simply emphasized
to the court that he wanted it to ‘‘be made clear that
in no way [does] the fact that the disclosure is delayed
in any way corroborate that abuse actually occurred.’’
At no point during the court’s colloquy with defense
counsel did he invoke Favoccia as his authority for his
objection or specifically apprise the court that Craft’s
use of hypotheticals impermissibly suggested that she
was indirectly vouching for the victim’s credibility.
Because defense counsel’s initial objection did not ade-
quately apprise the court of the ground on which the
defendant now relies, the defendant was not relieved
of his duty to make further objections if he thought
Craft impermissibly related her testimony to the facts
of the case. See Practice Book § 60-5.
As reflected in our discussion of this claim, shortly
after the jury came back into the courtroom following
defense counsel’s initial objection, defense counsel
objected to one of the prosecutor’s questions on the
ground that the ‘‘question assumes an abuse has
occurred.’’ As the court indicated it would do, it
‘‘responded accordingly’’ by asking the prosecutor to
rephrase the question. The prosecutor complied. After
a few additional questions were asked, defense counsel
objected once again. This time, however, the objection
was not on the ground that the question assumed an
abuse occurred; rather, it was the first time defense
counsel objected to testimony on the ground that Craft
was relating her testimony to the facts of the case. The
court addressed the objection by providing a curative
instruction. Shortly thereafter, defense counsel
objected once again to an answer given by Craft but
immediately withdrew his objection. Although other
objections were made, they were made in response to
statements not challenged in this appeal.
As the state points out, the failure to object to the
three statements the defendant now challenges on
appeal presumably shows that defense counsel did not
believe that Craft’s statements were improper, or that
he was satisfied with the curative instruction the court
previously gave. There is no obligation for the court,
which is not an advocate for either party but a neutral
arbiter over the trial, to raise objections on the defen-
dant’s behalf. Because the defendant failed to put the
court on notice of the potential error ‘‘while there [was]
still time for the court to act,’’ we conclude that the
defendant failed to preserve his claim. (Internal quota-
tion marks omitted.) State v. Francis D., supra, 75 Conn.
App. 8. Accordingly, we decline to afford it review.
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 assault and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
At sentencing, the court vacated a conviction of sexual assault in the
first degree and a conviction of risk of injury to a child, determining that
both convictions were lesser included offenses of the aggravated sexual
assault of a minor conviction. Neither of these vacated convictions are part
of the judgment of conviction being appealed.
2
The victim and her two siblings shared a bedroom that contained a bunk
bed; the victim occupied the top bunk and her two younger siblings occupied
the bottom bunk. The victim testified that when some of the incidents
occurred, her two younger siblings were sleeping in the same bedroom, and
that the defendant climbed a ladder that led to the top bunk in order to get
into bed with her.
3
Craft testified that she is a member of a multidisciplinary team. As set
forth in the statute, the purpose of these teams ‘‘is to advance and coordinate
the prompt investigation of suspected cases of child abuse or neglect, to
reduce the trauma of any child victim and to ensure the protection and
treatment of the child.’’ General Statutes § 17a-106a. A multidisciplinary team
generally ‘‘consists of mental health and law enforcement professionals, as
well as department employees, all of whom work collaboratively to investi-
gate and treat cases of reported sexual abuse.’’ State v. Maguire, 310 Conn.
535, 543, 78 A.3d 828 (2013). Craft, however, testified that protocols can
vary depending on the jurisdiction within the state.
4
In addition, at the beginning of Craft’s interview with the victim, she
informed the victim that their conversation would be video recorded in case
Craft or the doctor had any questions later on, and that this was done so
they did not have to keep asking her the same questions over again.
5
In his motion for a new trial, the defendant renewed his challenge to
the admission of the video recording, which the trial court denied.
6
In support of the defendant’s argument, he acknowledges that ‘‘[a]lthough
it appears [our Supreme Court] did not have to analyze the statements at
issue under Crawford, it chose that framework for the admissibility of the
medical statements at issue.’’ He further argues that this court should over-
rule our previous cases that have used an ‘‘at least in part’’ type analysis,
and that we should instead use the primary purpose test that he suggests
is required. The line of cases that the defendant challenges have concluded
that forensic interview statements are admissible under the medical diagno-
sis or treatment exception when the purpose of the interview was, at least
in part, to determine whether the victim was in need of medical treatment,
and that the statements were reasonably pertinent to achieving those ends.
See, e.g., State v. Abraham, 181 Conn. App. 703, 713, A.3d , cert.
denied, 329 Conn. 908, A.3d (2018); State v. Eddie N. C., 178 Conn.
App. 147, 171, 174 A.3d 803 (2017), cert. denied, 327 Conn. 1000, 176 A.3d
558 (2018); State v. Estrella J.C., supra, 169 Conn. App. 74–75; State v.
Griswold, supra, 160 Conn. App. 552–53, 557; State v. Donald M., 113 Conn.
App. 63, 71, 966 A.2d 266, cert. denied, 291 Conn. 910, 969 A.2d 174 (2009).
Recognizing that one panel of this court cannot overrule another panel
of this court; see Samuel v. Hartford, 154 Conn. App. 138, 144, 105 A.3d
333 (2014); the defendant filed a motion requesting en banc review prior to
submitting his reply brief in this case. His motion was denied on April 18,
2018. Accordingly, we decline the defendant’s invitation to depart from this
court’s precedent.
7
Because the defendant on appeal does not challenge the trial court’s
determination that Craft was acting in the victim’s chain of medical care,
and because he conceded the point at trial, we limit our inquiry to whether
the victim’s statements to Craft were reasonably pertinent to her medical
diagnosis or treatment.
8
We also note that the defendant does not ask for any extraordinary
method of review and that the claim is not of a constitutional nature such
that review is warranted pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989).
9
Craft responded: ‘‘So, when a child decides to disclose, we think of it as
two different processes. So it’s either an accidental disclosure or a purposeful
disclosure. An accidental disclosure is a child tells their friend, and then
their friend goes and tells the school social worker, and that school social
worker then calls down the child. The child didn’t intend to disclose. She
was looking or she was talking with a friend about it. A purposeful disclosure
is when the child’s ready. They go and they talk to their mom. They go
and talk to the doctor. They make that actual disclosure.
‘‘When a child is ready to disclose their alleged abuse certain factors
come into play, such as . . . they don’t want the abuse to continue. They
found the power within themselves to try to stop it. They are afraid that
the abuse may happen to their younger siblings or to somebody else they
love and care about. Sometimes . . . if the person’s in a caretaking role
and they try to discipline the child, the child will then say, really, you’re
going to discipline me when you’ve been doing x, y and z. So it all depends
on what . . . is going on for them at the time. A lot of times children
disclose when they’ve been removed from the perpetrator for a while so
they know that they feel safe. It’s really dependent on, on what’s going on
for the child at the time.’’ (Emphasis added.) We have emphasized those
portions of Craft’s testimony that the defendant challenges on appeal.
10
Practice Book § 60-5 provides in relevant part: ‘‘In jury trials, where
there is a motion, argument, or offer of proof or evidence in the absence
of the jury, whether during trial or before, pertaining to an issue that later
arises in the presence of the jury, and counsel has fully complied with the
requirements for preserving any objection or exception to the judge’s adverse
ruling thereon in the absence of the jury, the matter shall be deemed to be
distinctly raised at the trial for purposes of this rule without a further
objection or exception provided that the grounds for such objection or
exception, and the ruling thereon as previously articulated, remain the
same. . . .’’