State v. Manuel T.

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STATE OF CONNECTICUT v. MANUEL T.*
(AC 40656)
Alvord, Bright and Bear, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree, risk of injury
to a child, sexual assault in the second degree and sexual assault in the
fourth degree in connection with his alleged sexual abuse of the minor
victim, the defendant appealed. Before trial, the trial court held a hearing
on the admissibility of a video recording of a diagnostic interview of
the minor victim by a clinical services coordinator, M, and ruled that
certain statements made during that interview were admissible pursuant
to the medical diagnosis or treatment exception to the hearsay rule.
Thereafter, during the course of trial, the defendant sought to admit
into evidence, over the state’s objection, two screenshots from a cell
phone that depicted text messages purportedly sent by the minor victim
to her stepcousin, R, in which the author of the text messages discussed
the minor victim’s life and the minor victim’s relationship with the
defendant. Following a hearing held outside the presence of the jury,
at which R testified as an offer of proof, the court ruled that the defendant
had failed to properly authenticate the screenshots as being authored
by the minor victim and excluded them from evidence. Held:
1. The trial court properly determined that the minor victim’s statements
made during the diagnostic interview fell within the medical diagnosis
or treatment exception to the hearsay rule, and, thus, did not abuse its
discretion in admitting the video recording of the diagnostic interview
into evidence: the defendant’s reliance on the primary purpose standard
for determining the admissibility of the minor victim’s statements under
the medical diagnosis or treatment exception to the hearsay rule was
misplaced, as statements made during a forensic interview by a minor
that are offered solely under the medical diagnosis or treatment excep-
tion 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, if it may be reasonably inferred from the circumstances that
the declarant understands that the interview has a medical purpose,
and in the present case there was sufficient evidence in the record to
demonstrate that it reasonably could be inferred from the circumstances
that the minor victim understood the interview to have a medical purpose
to satisfy the requirement of that exception to the hearsay rule given
that the interview took place in a medical facility, M’s statements and
questions to the minor victim during the interview, including M’s state-
ment that the interview was being recorded by the medical facility for
future use, and the fact that the minor victim was told that she would
be introduced to a medical provider and referred for counseling; further-
more, although certain questions posed by M were directed at uncovering
facts that may have been immaterial to medical treatment or diagnosis,
that did not preclude the minor victim’s statements from falling within
the medical diagnosis or treatment exception to the hearsay rule, as
case law is clear that statements made in a diagnostic interview are
admissible even when medical treatment or diagnosis is not the primary
purpose of the inquiry.
2. The trial court did not abuse its discretion by excluding from evidence
the two cell phone screenshots of certain text messages purportedly
sent by the minor victim to R; the defendant failed to satisfy his burden
of authenticating both screenshots because he failed to present sufficient
evidence to make a prima facie showing that the minor victim was the
author of the text messages, as both screenshots were incomplete and
contained only partial messages, the screenshots did not indicate the
date and time they were sent by the author or received by R, there
was no evidence that the messages were part of a longer or ongoing
conversation between the minor victim and R, the messages did not
contain language or content sufficiently distinctive to establish the minor
victim as the author, the screenshots were not corroborated by other
forensic computer evidence, and the minor victim denied authoring the
text messages displayed in the screenshots.
Argued September 7—officially released November 13, 2018
Procedural History
Substitute information charging the defendant with
four counts of the crime of risk of injury to a child,
three counts of the crime of sexual assault in the first
degree, and two counts of the crime of sexual assault
in the second degree, and with the crimes of sexual
assault in the fourth degree and tampering with a wit-
ness, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the jury before Bentivegna,
J.; verdict and judgment of guilty of four counts of risk
of injury to a child, three counts of sexual assault in
the first degree, and two counts of sexual assault in
the second degree, and of sexual assault in the fourth
degree, from which the defendant appealed. Affirmed.
Hubert J. Santos, with whom was Trent A. LaLima,
for the appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Elizabeth Tanaka, assistant state’s attor-
ney, for the appellee (state).
Opinion
BRIGHT, J. The defendant, Manuel T., appeals1 from
the judgment of conviction, rendered after a jury trial,
of one count of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2), four
counts of risk of injury to a child in violation of General
Statutes § 53-21 (a) (2), two counts of sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (1), two counts of sexual assault in the second
degree in violation of General Statutes § 53a-71 (a) (1),
and one count of sexual assault in the fourth degree in
violation of General Statutes § 53a-73a (a) (1) (E).2 On
appeal, the defendant claims that the trial court improp-
erly (1) admitted into evidence a video recording of the
diagnostic interview between the minor victim and a
clinical services coordinator, and (2) excluded from
evidence two screenshots of text messages purportedly
sent by the minor victim to her stepcousin. We affirm
the judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. On
March 28, 2014, the minor victim, age seventeen at the
time, reported to her family and the police that she had
been sexually abused by the defendant, her stepfather.
In accordance with police protocol, the minor victim
was referred to the Greater Hartford Children’s Advo-
cacy Center (advocacy center) at Saint Francis Hospital
and Medical Center for a diagnostic interview. On April
1, 2014, the minor victim participated in a diagnostic
interview conducted by Lisa Murphy-Cipolla, the clini-
cal services coordinator at the advocacy center.
Although Murphy-Cipolla interviewed the minor victim
alone, their conversation was observed through a ‘‘one-
way mirror’’ by Detective Claire Hearn and Audrey
Courtney, a pediatric nurse practitioner at the advocacy
center.3 In conformance with the ordinary practice of
the advocacy center, the interview was video recorded.
During the interview, the minor victim disclosed, in
precise detail, that the defendant sexually abused her
over an approximate seven year period. The minor vic-
tim told Murphy-Cipolla, in relevant part, that beginning
when she was eight or nine years old, until she was
fifteen years old, the defendant, on numerous occa-
sions, touched her inappropriately underneath her
clothes. The minor victim also disclosed that, when she
turned fifteen years old, the defendant ‘‘would force
[her] to have sex with him.’’ She further indicated that
the defendant’s actions would cause her to suffer physi-
cal pain, that she does not feel comfortable with her
body, and that she regrets not disclosing the sexual
abuse sooner. The defendant subsequently was arrested
and charged with, inter alia, six counts of sexual assault
and four counts of risk of injury to a child.
On June 6, 2016, the court held a pretrial hearing to
determine whether the video recording of the diagnostic
interview would be admissible at trial. As an offer of
proof, the state presented the testimony of Murphy-
Cipolla and played a partially redacted version4 of the
video recording. Murphy-Cipolla testified regarding her
background and the purposes and process of conduct-
ing diagnostic interviews, as well as the circumstances
of her interview of the minor victim. The state argued
that the video recording was admissible pursuant to
the medical diagnosis and treatment exception to the
hearsay rule, which is codified in § 8-3 (5) of the Con-
necticut Code of Evidence.5 The defendant objected to
the admission of the video recording on the ground that
the minor victim’s statements made during the inter-
view constituted inadmissible hearsay because the
minor victim was not seeking medical diagnosis or
treatment.6
At the conclusion of the hearing, the court, in an oral
decision, overruled the defendant’s objection and held
that the video recording was admissible pursuant to
the medical diagnosis and treatment exception to the
hearsay rule. In particular, the court concluded that the
hearsay exception applied because the minor victim’s
reports of ‘‘physical symptoms,’’ ‘‘body image mental
health issues,’’ and ‘‘medical concerns’’ were reasonably
pertinent to obtaining medical diagnosis and treatment.
Thereafter, the defendant’s case proceeded to a jury
trial, at which the state presented the testimony of sev-
eral witnesses, including Murphy-Cipolla. During the
state’s direct examination of Murphy-Cipolla, the state
requested that the video recording be admitted into
evidence. Notwithstanding the defendant’s renewed
objection, the court admitted into evidence the video
recording as a full exhibit, and the state proceeded to
play the video recording for the jury.
In the course of the defendant’s rebuttal evidence at
trial, the defendant sought to introduce two cell phone
screenshots depicting text messages purportedly sent
by the minor victim to her stepcousin, R, who is the
defendant’s niece.7 Accordingly, the court held a hearing
outside the presence of the jury to determine the admis-
sibility of these screenshots. As an offer of proof, the
defendant conducted a direct examination of R and
produced both screenshots. R testified that, inter alia,
both screenshots depict text message responses that
she received from the minor victim in February or
March, 2014. Both screenshots appear to display the
minor victim’s first name as the sender; neither screens-
hot, however, contains an indication as to the date or
time that the messages were received. After conducting
a cross-examination of R, the state objected to the
admission of both screenshots arguing that they had
not been authenticated properly because they were
incomplete and devoid of necessary distinctive charac-
teristics. The defendant countered that the screenshots
were admissible because R sufficiently identified the
messages as being authored by the minor victim.
At the conclusion of the hearing, the court issued
an oral decision sustaining the state’s objection and
deciding that both screenshots had not been authenti-
cated sufficiently pursuant to § 9-1 (a) of the Connecti-
cut Code of Evidence.8 Specifically, the court
determined that the defendant failed to make a prima
facie case that the minor victim authored the text mes-
sages exhibited by the screenshots because, among
other things, the messages were incomplete, lacking
temporal indicators, and devoid of distinctive charac-
teristics. Accordingly, the court excluded from evidence
both screenshots.
The jury subsequently found the defendant guilty of
six counts of sexual assault and four counts of risk
of injury to a child. The court rendered judgment in
accordance with the jury’s verdict and imposed a total
effective sentence of forty years incarceration, execu-
tion suspended after thirty years, with thirty-five years
probation and lifetime sex offender registration. This
appeal followed. Additional facts will be set forth as
necessary.
Before turning to the merits of the defendant’s claims,
we briefly set forth the applicable standard of review.
‘‘It is well settled that [w]e review the trial court’s deci-
sion to admit [or exclude] evidence, if premised on a
correct view of the law . . . for an abuse of discretion.
. . . Under the abuse of discretion standard, [w]e
[must] make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . [Thus, our] review
of such rulings is limited to the questions of whether
the trial court correctly applied the law and reasonably
could have reached the conclusion that it did.’’ (Citation
omitted; internal quotation marks omitted.) Filippelli
v. Saint Mary’s Hospital, 319 Conn. 113, 119, 124 A.3d
501 (2015).9
I
The defendant claims that the court improperly
admitted into evidence a video recording of the diagnos-
tic interview between the minor victim and Murphy-
Cipolla. More specifically, the defendant argues that
the court abused its discretion in determining that the
video recording met the requirements of the medical
diagnosis and treatment exception to the hearsay rule
because ‘‘[t]he circumstances of this case make clear
that criminal investigation and prosecution was not only
the primary purpose of the interview, but was the over-
arching and singular purpose.’’ We disagree.
The following additional facts are relevant to our
resolution of the defendant’s first claim on appeal. The
diagnostic interview was held in the adolescent inter-
view room at the advocacy center at Saint Francis Hos-
pital and Medical Center, which is an institution capable
of providing medical services. At the outset of the inter-
view, Murphy-Cipolla indicated to the minor victim that
there were ‘‘a couple of ladies . . . that [she] work[ed]
with’’ behind the one-way mirror that were observing
their discussion, but she did not identify them or state
their occupations to the minor victim. Murphy-Cipolla
also informed the minor victim that their conversation
was being recorded so that the video could be reviewed,
and so that the minor victim would not ‘‘have to keep
talking over and over and over again.’’
After several prefatory inquiries and the disclosure
by the minor victim that the defendant had sexually
abused her, Murphy-Cipolla then asked a series of ques-
tions to ascertain when and where the abuse occurred,
as well as the manner in which the defendant had sexu-
ally assaulted her. More specifically, Murphy-Cipolla
asked the minor victim to clarify which part of the
defendant’s body he used to touch her because it would
be ‘‘helpful for our nurse . . . .’’ Murphy-Cipolla subse-
quently posed a similar question, stating that it ‘‘would
be helpful . . . for our medical provider’’ to confirm
the parts of the minor victim’s body that the defendant
had touched. Moreover, when asked what the abuse felt
like, the minor victim responded that it was physically
painful. Immediately thereafter, Murphy-Cipolla
informed the minor victim that ‘‘when we’re done today
I’m going to introduce you to our medical provider and
any questions that you have or any concerns you can
talk with her.’’
Murphy-Cipolla also inquired as to whether the defen-
dant always had used a condom, to which the minor
victim responded that he did not. Later, when asked
whether she had ‘‘any questions or concerns right now
for the medical provider,’’ the minor victim responded
that she goes ‘‘to the OBGYN’’ but that she ‘‘want[ed] to
make sure that [she did not] have any disease.’’ Murphy-
Cipolla then assured the minor victim that ‘‘when we’re
done, I’ll introduce you to our medical provider and
she’d be happy to talk with you about any concerns
that you have.’’ Additionally, the minor victim expressed
some psychological concerns, stating, inter alia: ‘‘I just
I hate feeling uncomfortable. And hating myself because
. . . I hate that I waited so long to say something
because if I was to say something earlier then—sooner
than I would eventually be happy . . . .’’ In response,
Murphy-Cipolla informed the minor victim that ‘‘we
could help to make a referral for counseling just so you
have somebody to talk with about all those issues.’’
‘‘It is well settled that . . . [a]n out-of-court state-
ment offered to prove the truth of the matter asserted
is hearsay and is generally inadmissible unless an excep-
tion to the general rule applies.’’ (Internal quotation
marks omitted.) State v. Carrion, 313 Conn. 823, 837,
100 A.3d 361 (2014). The medical diagnosis and treat-
ment exception to the hearsay rule is codified in § 8-3
(5) of the Connecticut Code of Evidence. See footnote
5 of this opinion. ‘‘The legal principles relating to the
medical treatment exception are well settled. Admissi-
bility of out-of-court statements made by a patient to
a medical care provider depends on whether the state-
ments were made for the purposes of obtaining medical
diagnosis or treatment . . . and on whether the declar-
ant’s statements reasonably were related to achieving
those ends. . . . The term medical encompasses psy-
chological as well as somatic illnesses and conditions.
. . . Furthermore, statements made by a sexual assault
complainant to a social worker may fall within the
exception if the social worker is found to have been
acting within the chain of medical care. . . .
‘‘[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,
[we] have permitted this requirement to be satisfied
inferentially.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) State v. Abraham,
181 Conn. App. 703, 711, 187 A.3d 445, cert. denied, 329
Conn. 908, 186 A.3d 12 (2018); see State v. Griswold,
160 Conn. App. 528, 555–56, 127 A.3d 189 (rationale
underlying medical treatment exception is that patient
is incentivized to be truthful to obtain proper diagnosis
and treatment), cert. denied, 320 Conn. 907, 128 A.3d
952 (2015).
This court recently distilled several decisions,10 which
apply the medical treatment exception to a diagnostic
interview, into a lodestar test for admissibility based on
reasonable inferences: ‘‘[T]he statements of a declarant
may be admissible under the medical treatment excep-
tion if made in circumstances 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 circumstances.’’11 (Emphasis in original.) State v.
Abraham, supra, 181 Conn. App. 713; see, e.g., State v.
Ezequiel R., 184 Conn. App. 55, 68–71, A.3d (2018)
(video recording of interview admissible under medical
treatment exception based on, inter alia, circumstances
leading up to interview, location where interview took
place, and interviewer’s statements to victim during
interview). Because the focus of the medical treatment
exception is the declarant’s understanding of the pur-
pose of the interview, 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.12
Applying these principles to the present case, we
conclude that the trial court did not abuse its discretion
in determining that the video recording was admissible
under the medical diagnosis and treatment exception
to the hearsay rule because it reasonably can be inferred
from the circumstances apparent to the minor victim
that she understood the interview had a medical pur-
pose. First, the interview took place at a medical facility,
and the minor victim knew that the interview was being
recorded by the medical facility for future use. Further,
we can ascertain no reason for the minor victim to have
thought that one of the observers was a police detective
because the minor victim was informed only that there
were ‘‘a couple of ladies . . . that [she] work[ed] with’’
behind the one-way mirror. Even if the minor victim
was aware of the presence of a police officer behind
the mirror, however, this fact alone would not eradicate
the medical purpose of the interview. See State v. Miller,
121 Conn. App. 775, 783, 998 A.2d 170 (purpose of inter-
view was for medical treatment even though victim
knew that police officers were present during inter-
view), cert. denied, 298 Conn. 902, 3 A.3d 72 (2010).
Murphy-Cipolla also asked several direct questions,
including whether the defendant used a condom, which
could assist a prospective medical provider to identify
whether the minor victim contracted any sexually trans-
mitted diseases. Likewise, the minor victim was asked
to confirm the nature of the defendant’s sexual abuse
for the explicit reason that it would be helpful to the
nurse and the medical provider. Finally, when the minor
victim expressed concerns about her physical and psy-
chological well-being, Murphy-Cipolla informed the
minor victim that she would be introduced to a medical
provider and referred to counseling. All of these facts
lead to the reasonable inference that the interview had
a medical purpose.
Although certain questions posed by Murphy-Cipolla
were directed at uncovering facts that may be immate-
rial to the medical treatment or diagnosis of the minor
victim,13 our case law is clear that the statements made
in a diagnostic interview are admissible even when med-
ical treatment or diagnosis is not the primary purpose
of the inquiry.14 State v. Griswold, supra, 160 Conn.
App. 552–53; see State v. Estrella J.C., 169 Conn. App.
56, 77–78, 148 A.3d 594 (2016). Indeed, the defendant,
by exempting from his objection the minor victim’s
complaints seeking medical treatment; see footnote 6
of this opinion; recognizes that the interview had a
medical purpose.15
Therefore, we conclude that the court did not abuse
its discretion when it determined that the minor victim’s
statements made during the diagnostic interview were
admissible pursuant to the medical diagnosis and treat-
ment exception to the hearsay rule, and admitted into
evidence the video recording of the diagnostic
interview.
II
The defendant also claims that the court improperly
excluded from evidence two cell phone screenshots of
text messages purportedly sent by the minor victim to
R. More specifically, the defendant argues that the court
abused its discretion in determining that the defendant
failed to authenticate sufficiently the two screenshots
because he provided evidence that ‘‘met the require-
ments of a prima facie case of authenticity by presenting
both a witness with personal knowledge of the conver-
sation and [the minor victim’s] phone number and that
witness’ description of identifying distinctive character-
istics in the evidence.’’ We disagree.
The following additional facts are relevant to our
resolution of the defendant’s second claim on appeal.
Each of the two exhibits is a screenshot that depicts
text messages that were received by a cell phone. The
first screenshot portrays two text messages that were
received by the cell phone, displays only the bottom
half of the name of the sender, which appears to be
the first name of the minor victim, does not include the
phone number of the sender, and is devoid of any time
or date reference. It also contains a portion of a text
message to which the two text messages shown pur-
portedly respond. The second screenshot evinces two
partial text messages that were received by the cell
phone, displays the entirety of the first name of the
sender, which is the first name of the minor victim,
does not include the phone number of the sender, dis-
plays 1:08 p.m. as the time that the screenshot was
taken, but is devoid of any other time or date reference.
As for the content of the messages contained in both
screenshots; see footnote 7 of this opinion; the author
expresses discontent for her current life situation
except for her relationship with ‘‘[T]’’ and her ‘‘bf.’’ The
author also utilizes the terms ‘‘SMH’’ and ‘‘hit me up,’’
and complains that ‘‘[M]anny’’ failed to fulfill his prom-
ise to purchase the author a car.
When defense counsel showed these two screenshots
to the minor victim on cross-examination during the
state’s case-in-chief, the minor victim denied ever send-
ing R any text messages and denied that she was the
‘‘sender’’ of the text messages displayed in the screens-
hots. At the hearing conducted outside the presence of
the jury, R testified that she is the stepcousin of the
minor victim and that the minor victim provided her
cell phone number to R at a family gathering. R testified
that, in February or March, 2014, despite the fact that
she was ‘‘not really’’ ‘‘in touch’’ with the minor victim,
R sent the minor victim a text message ‘‘to see how
she was doing.’’ R testified that the minor victim
responded to her message and that the two exhibits
evincing the two screenshots were a fair and accurate
representation of the minor victim’s responses. R also
attested to her cell phone number as well as the minor
victim’s cell phone number.
On cross-examination, R testified that the screens-
hots do not represent the entire conversation and,
although she could not recollect the date of the conver-
sation ‘‘clearly,’’ she did know that it was ‘‘a couple of
months before everything happened.’’ R further testified
that she manually input the minor victim’s name into
her cell phone, she was not with the minor victim at
the time she received the messages from her, she never
spoke to the minor victim in person about the conversa-
tion, and she did not know whether the minor victim’s
phone was password protected. When asked if she
knew whether the minor victim had sent the text mes-
sages, R responded that members of the minor victim’s
family were referenced in the text. R also testified that
the time displayed at the top of the second screenshot
represents the time when the screenshot was taken,
and not when the conversation occurred. Although R
testified that the minor victim previously had utilized
the acronym ‘‘SMH,’’ which means shaking my head,
and the phrase ‘‘why you hittin’ me up’’ in the past, R
also testified that these sayings are not particular to
the minor victim, but, rather, that they are utilized by
their entire generation. R further testified that she no
longer has the cell phone that took the screenshots and
that her cellular provider’s records of text messages
from the relevant period no longer exist.
‘‘Preliminary questions concerning . . . the admissi-
bility of evidence shall be determined by the court.
Conn. Code Evid. § 1-3 (a). The requirement of authenti-
cation as a condition precedent to admissibility is satis-
fied by evidence sufficient to support a finding that the
offered evidence is what its proponent claims it to be.
Conn. Code Evid. § 9-1 (a). The official commentary to
§ 9-1 (a) of the Code of Evidence provides in relevant
part: The requirement of authentication applies to all
types of evidence, including . . . writings . . . [and]
electronically stored information . . . . The category
of evidence known as electronically stored information
can take various forms. It includes, by way of example
only, e-mails, Internet website postings, text messages
and chat room content, computer stored records and
data, and computer generated or enhanced animations
and simulations.’’ (Internal quotation marks omitted.)
State v. Smith, 179 Conn. App. 734, 761–62, 181 A.3d
118, cert. denied, 328 Conn. 927, 182 A.3d 637 (2018).
‘‘[T]he bar for authentication of evidence is not partic-
ularly high. . . . [T]he proponent need not rule out all
possibilities inconsistent with authenticity, or . . .
prove beyond any doubt that the evidence is what it
purports to be . . . .’’ (Internal quotation marks omit-
ted.) Id., 762–63. ‘‘[T]he showing of authenticity is not
on a par with the more technical evidentiary rules that
govern admissibility, such as hearsay exceptions, com-
petency and privilege. . . . Rather, there need only be
a prima facie showing of authenticity to the court. . . .
Once a prima facie showing of authorship is made to the
court, the evidence, as long as it is otherwise admissible,
goes to the jury, which will ultimately determine its
authenticity.’’ (Internal quotation marks omitted.) Id.,
762.
‘‘[A]n electronic document may . . . be authenti-
cated by traditional means such as direct testimony
of the purported author or circumstantial evidence of
distinctive characteristics in the document that identify
the author.’’ (Emphasis omitted; internal quotation
marks omitted.) Id., 763. ‘‘Among the examples of meth-
ods of authenticating evidence set forth in the official
commentary to § 9-1 (a) of the Code of Evidence is that
[a] witness with personal knowledge may testify that
the offered evidence is what its proponent claims it to
be, and [t]he distinctive characteristics of an object,
writing or other communication, when considered in
conjunction with the surrounding circumstances, may
provide sufficient circumstantial evidence of authentic-
ity. Conn. Code Evid. § 9-1 (a), commentary.’’ (Internal
quotation marks omitted.) Id. ‘‘[B]ecause an electronic
communication, such as a Facebook message, an e-mail
or a cell phone text message, could be generated by
someone other than the named sender . . . proving
only that a message came from a particular account,
without further authenticating evidence, has been held
to be inadequate proof of authorship.’’ (Internal quota-
tion marks omitted.) Id., 763–64.
In support of their arguments, each of the parties
relies on State v. Eleck, 130 Conn. App. 632, 23 A.3d
818 (2011), aff’d, 314 Conn. 123, 100 A.3d 817 (2014),
which is our seminal decision on the authentication of
electronic evidence. In Eleck, we held that the trial court
did not abuse its discretion in excluding from evidence
a printout comprising Facebook messages sent by an
individual to the defendant. Id., 634–44. When presented
with the printout on cross-examination, the individual
identified the ‘‘user name’’ as her own, denied sending
the messages to the defendant, and testified that her
account had been hacked. Id., 635. The following day,
defense counsel offered the printout into evidence. The
defendant testified that he had downloaded and printed
the messages from his own computer, that he recog-
nized the purported author’s name and pictures on the
Facebook account, and that the purported author
removed him as a ‘‘friend’’ immediately after she testi-
fied on the previous day. Id., 636. Thereafter, the trial
court sustained the state’s authenticity objection ‘‘on
the ground that the defendant had not authenticated
that the messages were written by [the purported
author] herself.’’ Id. On appeal, this court affirmed the
trial court’s conclusion that the defendant failed to
authenticate sufficiently that the individual was the
author of the messages because, inter alia, of the con-
flicting testimony regarding the authorship and the
unresolved issue of whether a third party may have
sent the messages. Id., 641–42. We reached this conclu-
sion even though the purported author’s claim of hack-
ing was ‘‘dubious . . . given that the messages were
sent before the alleged hacking of the account took
place . . . .’’ Id., 642. We further concluded that the
contents of the messages did not ‘‘[provide] distinctive
evidence’’ that the messages were written by the pur-
ported author. Id. In particular, we recognized that the
exchange did ‘‘not reflect distinct information that only
[the purported author] would have possessed regarding
the defendant or the character of their relationship.’’
Id. We contrasted the facts in Eleck to other cases in
which ‘‘the identifying characteristics have been much
more distinctive of the purported author and often have
been corroborated by other evidence or with forensic
computer evidence.’’ Id., 643.
Since Eleck, this court has considered, on several
occasions, whether electronic messages had been suffi-
ciently authenticated. In State v. Papineau, 182 Conn.
App. 756, 790–92, 190 A.3d 913, cert. denied, 330 Conn.
916, A.3d (2018), this court held that the state
sufficiently had authenticated a series of text messages
between the defendant and his former wife through the
testimony of the former wife. This testimony included
that they were in an ongoing relationship, that the mes-
sages were part of an ongoing conversation between
them, that the messages prompted them to speak on
the telephone, and that she was ‘‘ ‘very positive’ ’’ that
the messages were from the defendant. Id., 791. In State
v. Smith, supra, 179 Conn. App. 759–66, this court held
that the state sufficiently had authenticated a Facebook
message sent by the defendant to an individual through
the testimony of the individual that she had received
the message bearing the defendant’s name only after
she agreed to be part of the defendant’s criminal plan,
that the message was part of a larger series of messages,
that the content of the messages made sense and
revealed things the defendant would know, that the
message contained a ‘‘unique speaking style’’ and con-
tent, and that the message definitively was from the
defendant.
Applying these principles, we conclude that the trial
court did not abuse its discretion in concluding that
the defendant failed to meet his burden of authenticat-
ing both screenshots because he failed to present suffi-
cient evidence to make a prima facie showing that the
minor victim was the author of the text messages
therein displayed. Both screenshots are devoid of any
extra-textual identifying characteristics that would
evince the date and time the messages were sent by
the author, or received by R. R could only say that she
received them in February or March, 2014. Not only
does the second screenshot contain a partial message,
but R testified that both screenshots are an incomplete
representation of the conversation. R did not testify as
to what she had transcribed in the text messages she
sent to the minor victim, and the screenshots display
only a partial message that was sent by R. In the present
case, unlike Papineau and Smith, there was insufficient
corroborating evidence that these messages were part
of some longer conversation or the content of such con-
versation.
Moreover, the content of the messages, as corrobo-
rated by R’s testimony, also failed to provide sufficient
authentication that the minor victim was the author. R
was neither asked, nor did she testify, as to the general
content of the messages. Rather, R testified that the
author utilized two specific phrases, namely ‘‘SMH’’ and
‘‘hit me up.’’ Although she testified that these phrases
had been used by the minor victim in the past, she also
stated that these phrases are not particular to the minor
victim and are used by her entire generation. Addition-
ally, although the messages allude to members of the
minor victim’s family and the status of various relation-
ships, this fact is insufficient to support a finding that
the minor victim was the author. It is likely that many
persons, including members of the minor victim’s fam-
ily, would possess the knowledge of these facts. Thus,
contrary to Papineau and Smith, R’s testimony com-
bined with the content of the messages was not suffi-
ciently distinctive to establish that the minor plaintiff
was the author.
In addition, unlike the identifying witnesses in Papi-
neau and Smith, R did not have a current relationship
with the purported author of the text messages that
would suggest a reliable basis for identifying the author.
In fact, R testified that she did not have a close relation-
ship with the minor victim at the time of the exchange
as they ‘‘kind of split off as [they] got older.’’
Nor were the screenshots corroborated by other
events or forensic computer evidence. The only witness
the defendant offered regarding the purported text con-
versation was R, and she could not provide further
corroborative details, testifying that she was not with
the minor victim when she received the messages, and
that she had never spoken with the minor victim over
the phone or in person about the conversation. Nor
could R say if the minor victim’s cell phone was pass-
word protected such that others could not easily gain
access to it. In addition, R’s cell phone was not available
to be examined, and information was not offered from
her cell phone provider to confirm the purported
exchange with the minor victim. Similarly, neither the
minor victim’s cell phone nor cell phone records were
offered to confirm that the minor victim was the author
of the messages.
Finally, the entirety of the text message exchange
was categorically contradicted by the direct testimony
of the minor victim. During the state’s case-in-chief, the
minor victim denied ever sending R any text messages
and denied that she was the ‘‘sender’’ of the texts dis-
played in the screenshots. This testimony, like in Eleck,
creates further uncertainty as to the authorship of the
messages, particularly given the failure of the defendant
to offer other corroborating evidence.
Therefore, we conclude that the court acted well
within its discretion when it determined that the defen-
dant failed to present sufficient evidence to support a
finding that the minor victim was the author of the text
messages, and excluded from evidence both screens-
hots of those messages.
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.
1
The defendant originally appealed to our Supreme Court pursuant to
General Statutes § 51-199 (b) (3). The appeal subsequently was transferred
to this court pursuant to Practice Book § 65-1.
2
The defendant also was charged with one count of tampering with a
witness in violation of General Statutes § 53a-151. The state, however,
entered a nolle prosequi after the jury was unable to reach a verdict on
that count.
3
Courtney was not present at the inception of the interview because she
was speaking with the minor victim’s parent. At the June 6, 2016 pretrial
hearing, Murphy-Cipolla testified that Melanie Rudnick, a medical resident,
also observed the interview behind the one-way mirror. Subsequently at trial,
however, Murphy-Cipolla did not testify that Rudnick observed the interview.
4
The defendant and the state agreed to omit certain portions of the video
that contain personally identifying information or that otherwise would be
inadmissible pursuant to General Statutes § 54-86f, commonly known as the
rape shield statute. Accordingly, the state presented a partially redacted
version of the video recording at the pretrial hearing and subsequently at
the trial.
5
Section 8-3 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule, even though the
declarant is available as a witness . . . (5) . . . [a] statement made for
purposes of obtaining a medical diagnosis or treatment and describing medi-
cal history, or past or present symptoms, pain, or sensations, or the inception
or general character of the cause or external source thereof, insofar as
reasonably pertinent to the medical diagnosis or treatment.’’
6
The defendant made one exception to his objection: ‘‘[T]he [c]ourt cer-
tainly can let in [the] inquiry—or [the minor victim’s] complaint in seeking
medical treatment and diagnosis to make her feel better about her body,
for example, wearing of the bathing suits, seeking help with checking her
out for disease, but other than those two portions, I would object . . . .’’
7
The two full messages contained within the first screenshot provide: ‘‘I
didn’t forget lol and yes he got himself a new car in a week then sold it for
another car in less than a day but when it comes to me he can’t get one.
Smh his excuse is I don’t deserve one cus of my attitude. He broke his
promise to me about getting me that’s why I don’t talk to him anymore he
doesn’t deserve my kindness I’m sick and tired of BROKEN promises! But
it is what it is. I’ll just buy my own damn car since I buy everything else
myself. But what’s new with you? Why you all of a sudden hit me up. Lol.’’
The first screenshot includes only a portion of R’s text message, which
provides: ‘‘[T]ime but idk from his perspective is.’’
The two partial messages contained within the second screenshot provide
in relevant part: ‘‘[A]nd out there on my own. I turn 18 this year . . . I
should be happy but I’m scared. And [m]y job is so stressful. This year
hasn’t been good for me at all it’s always something everyday nothing good
happens to me anymore the ONLY going good right now is my relationship
with [T] and my bf. That’s it. And same my dad keeps breaking his promises
along with my step dad well manny. We don’t even talk anymore it’s like
neither of my fathers are there for me . . . so my mom is all I got. It really
hurts to say it but it is what it is. And on top of this I’ve been looking for
another job and saving up for a car cus manny is selfish and won’t buy me
one.’’ R testified that all of the text messages she received were part of a
single conversation in response to a text message sent by R.
8
Section 9-1 (a) of the Connecticut Code of Evidence provides: ‘‘The
requirement of authentication as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the offered evidence
is what its proponent claims it to be.’’
9
During appellate oral argument, defense counsel took the position, with-
out citing any authority, that a trial court should consider the seriousness of
the charged crime when making its evidentiary determinations. In addition,
defense counsel advocated that, because the crimes at issue in the present
case were punishable by life in prison, this court should conduct a more
probing review of the trial court’s exercise of its discretion. We reject these
contentions as unsupported by Connecticut jurisprudence. Furthermore, we
find the notion that some defendants, because of the seriousness of the
charges against them, are entitled to greater leeway under the rules of
evidence and a heightened standard of review by this court antithetical to
the principle that all defendants can expect a consistent application of the
law to their cases. Finally, the defendant’s suggestions, if followed, would
create confusion and uncertainty among parties, attorneys, and the trial
court as to how our rules of evidence are to be applied.
10
State v. Estrella J.C., 169 Conn. App. 56, 74–80, 148 A.3d 594 (2016);
State v. Griswold, supra, 160 Conn. App. 552–57; State v. Giovanni P.,155
Conn. App. 322, 331–32, 110 A.3d 442, cert. denied, 316 Conn. 909, 111 A.3d
883 (2015); State v. Donald M., 113 Conn. App. 63, 71, 966 A.2d 266, cert.
denied, 291 Conn. 910, 969 A.2d 174 (2009); State v. Telford, 108 Conn. App.
435, 440–43, 948 A.2d 350, cert. denied, 289 Conn. 905, 957 A.2d 875 (2008).
11
Although there is ‘‘no requirement of direct evidence of the declarant’s
state of mind at the time of the statement . . . [t]his is not to say that direct
evidence would not be useful in the inquiry.’’ State v. Abraham, supra, 181
Conn. App. 711–12 n.6. We observe that in some cases, including the present
one, where the minor victim was seventeen years old at the time of the
interview, the defendant could have sought such direct evidence by asking
to voir dire the declarant outside the presence of the jury and before the
interview was admitted into evidence, as to her understanding of the purpose
of the interview.
12
For instance, statements made by a declarant at an interview intended
by the interviewer to be for medical diagnosis and treatment would not be
admissible under the exception if it reasonably could not be inferred that
the declarant understood that the interview had a medical purpose. Con-
versely, the fact that the interviewer or others suggested that the interview
take place for some other purpose; i.e., the gathering of evidence; is of little
or no significance if it reasonably could be inferred that the declarant
understood that a purpose of the interview was medical diagnosis or
treatment.
13
For example, Murphy-Cipolla asked the minor victim about the location
where the sexual abuse occurred, the description of the condoms the defen-
dant used, the whereabouts of her family during the encounters, and whether
the defendant took pictures of her body.
14
The defendant argues, alternatively, that this court should overrule State
v. Griswold, supra, 160 Conn. App. 528, as well as its progeny, and impose a
rule requiring that, to be admissible, medical treatment must be the ‘‘primary
purpose’’ of the diagnostic interview. It is axiomatic that we cannot overrule
the decision made by another panel of this court absent en banc consider-
ation. In re Zoey H., 183 Conn. App. 327, 340 n.5, 192 A.3d 522, cert. denied,
330 Conn. 906, 192 A.3d 425 (2018). Although the defendant filed a motion
for en banc consideration of this appeal, it was denied on May 23, 2018.
Therefore, assuming, without deciding, that this claim was preserved or is
reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), we
decline the defendant’s invitation to revisit our precedent.
15
The defendant also argues that the interview should not have been
admitted because the underlying premise of the hearsay exception—that
the declarant will tell the truth when seeking a medical diagnosis or treat-
ment—was undermined by the victim’s failure to be completely honest and
candid during the interview. We are not persuaded. This argument was
raised for the first time on appeal, so it was not properly preserved. See
Eubanks v. Commissioner of Correction, 329 Conn. 584, 597–98, 188 A.3d
702 (2018). In addition, whether the information provided by the declarant
ultimately is determined to be true, false, or inconsistent has never been
the test to determine whether the statement should be admitted in the first
place. Again, the test focuses on the declarant’s understanding of the purpose
for the interview, not the adverse party’s attacks on the veracity of the
statements made during the interview.