State v. Roberto Q.

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STATE OF CONNECTICUT v. ROBERTO Q.*
(AC 37635)
DiPentima, C. J., and Alvord and Gruendel, Js.
Argued October 13, 2016—officially released February 14, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Cremins, J.)
Daniel J. Foster, assigned counsel, for the appel-
lant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Amy L. Sedensky, senior assistant state’s
attorney, for the appellee (state).
Opinion
GRUENDEL, J. Following a jury trial, the defendant,
Roberto Q., was found guilty of one count of sexual
assault in the second degree in violation of General
Statutes § 53a-71 (a) (1), one count of sexual assault
in the third degree in violation of General Statutes § 53a-
72a (a) (2), one count of sexual assault in the fourth
degree in violation of General Statutes § 53a-73a (a) (1)
(B), and one count of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2). The defendant’s
niece, S.A. (victim), was between the ages of twelve
and fourteen years old at the time of the assaults.1 The
court rendered judgment in accordance with the jury
verdict and sentenced the defendant to a total effective
sentence of twenty years incarceration, suspended after
ten years, followed by fifteen years of probation.
On appeal, the defendant claims that the court
improperly instructed the jury on the use of constancy
of accusation evidence, and that the court erred by
denying his motion for a mistrial after the state inadver-
tently elicited testimony concerning uncharged prior
misconduct by the defendant. The state responds that
the court properly instructed the jury on the use of
constancy evidence, and that the court issued a curative
instruction regarding the uncharged prior misconduct
testimony, thereby avoiding the need for a mistrial. We
conclude that the court’s jury instruction was proper,
and that the court did not err in denying the defendant’s
motion for mistrial. Accordingly, we affirm the judg-
ment of the trial court.
The record reveals the following relevant facts and
procedural history. The victim was born in November,
1996, in Puerto Rico. She, her mother, sister, and
brother moved to Waterbury in 2007. The defendant,
who also had lived in Puerto Rico, moved to Waterbury
as well. The period of charged misconduct was from
June, 2009 to June, 2011. The victim and her family
lived in New York City from 2009 until at least April,
2011, before returning to Waterbury. In April, 2011, the
victim wrote a journal entry in which she referenced
the defendant.2 Her mother discovered the journal entry
in June, 2011, after the family had moved back to Water-
bury. About a week later, the victim told her mother
that the defendant had touched her body, specifically
her vagina, in a sexual manner. She also stated that the
defendant had touched her sister, C.A., sexually as well.
About a month after the victim’s mother read the
diary entry, the family held a meeting at the home of
the defendant’s mother to discuss the victim’s allega-
tions. The victim, C.A., their parents, their brother, the
defendant, his parents, and his brother attended the
meeting. C.A. and her mother testified at trial that when
the victim announced that the defendant had been
touching her, he became upset and threw a bottle of
iced tea against the wall. After the meeting, the victim’s
mother took the victim and C.A. to the police depart-
ment to file a report against the defendant.
The state filed two informations against the defen-
dant, one alleging offenses related to the victim, and
one alleging offenses related to C.A. The court consoli-
dated the cases for trial.3 At the trial, the victim testified
that she often visited the defendant at the Waterbury
home he shared with his three children and their
mother. The victim also testified that from 2009 to April,
2011, when she was living in New York, she and her
sister would sometimes stay overnight at the defen-
dant’s house on weekends. After the victim and her
family moved back to Waterbury, she was at the defen-
dant’s house almost every day until June, 2011, when
her mother discovered her journal entry pertaining to
the defendant.
The victim testified that during these visits the defen-
dant touched her sexually many times in his kitchen
and living room. In the kitchen, the defendant would
lean against the table, hold her with her back to his
chest, and touch her vagina over her clothes and then
inside her vagina with his fingers. Afterward, the defen-
dant would ask the victim to forgive him and promise
never to do it again. On one occasion, the defendant’s
neighbor, Joshua Roman, walked into the kitchen while
the defendant was touching her. The victim testified
that the defendant was touching her breasts when
Roman interrupted, but Roman testified that he only
witnessed the defendant caressing her back. In the liv-
ing room, the defendant would have the victim sit in
his lap on the couch covered by a sheet while he put
his fingers in her vagina. Additionally, the victim testi-
fied that, on another occasion, the defendant kissed
her and put his fingers inside her vagina while they
were in the back seat of his car and his children were
in the front seat.
C.A. also testified regarding the defendant’s conduct.
Among other incidents, she testified that the defendant
began touching her in a sexual manner when she was six
years old and living in Puerto Rico. After C.A. testified as
to this alleged misconduct, the court excused the jury
and noted that the misconduct at issue was not included
in the state’s disclosure of uncharged misconduct.
When the jury returned, the court instructed the jury
to disregard any evidence concerning any alleged inci-
dents involving the defendant and C.A. that took place
in Puerto Rico.
Prior to the conclusion of the state’s evidence, the
defendant filed a motion for mistrial. In his motion, the
defendant claimed that ‘‘the introduction of testimony
by the state, through C.A., alleging incidents of sexual
contact by the defendant in Puerto Rico resulted in a
violation of the defendant’s right to due process under
the state and federal constitutions, his right to a fair
trial, and his right to effective assistance of counsel.’’
Specifically, the defendant asserted that the state failed
to give notice of certain allegations of sexual contact
between the defendant and C.A. prior to 2009 and, there-
fore, improperly elicited testimony concerning these
allegations. The court denied the motion, concluding
that the improper solicitation of testimony on this sub-
ject did not rise to the level of denying the defendant
a fair trial, specifically noting that the court had sua
sponte issued a curative instruction to the jury before
any objection by the defendant had been made.
In addition to the testimony from the victim and C.A.,
the jury heard testimony from two constancy of accusa-
tion witnesses. The first was Roman, who testified
about the incident in the defendant’s kitchen where he
saw the defendant caressing the victim’s back. Roman
walked into the living room, where the victim joined
him a few minutes later. At that point, he testified that
the victim said to him, ‘‘ ‘I told you that he touched
me and all that.’ ’’ After Roman’s testimony, the court
instructed the jury on constancy of accusation tes-
timony.4
The second constancy witness was the victim’s
mother, who testified that, about a week after she found
the victim’s diary, the victim told her that the defendant
had ‘‘touched her in a sexual way.’’ Although C.A. was
not a part of that particular conversation, she also told
her mother later that same day that the defendant had
touched her sexually while they were at his apartment.
After the mother’s testimony concluded, the court again
instructed the jury on constancy of accusation wit-
ness testimony.5
The defendant submitted a request to charge asking
the court to instruct the jury that (1) constancy evidence
was not to be used as substantive evidence to prove
the truth of the complainants’ out-of-court statements,
and (2) constancy evidence could be used only to deter-
mine whether such statements were made. The defen-
dant objected to any language that would have allowed
the jury to use constancy of accusation testimony to
‘‘bolster’’ the complainants’ credibility or ‘‘corroborate’’
their testimony. The defendant raised this objection
before trial in a motion in limine, which was denied,
and again orally after the court’s limiting instruction
with respect to Roman’s testimony.
After considering the parties’ requests to charge, the
court gave the following instruction with respect to
constancy of accusation evidence: ‘‘The complainants
testified here in court before you. You may use their
testimony as evidence and proof of the facts asserted
in that testimony and give it the weight you find is rea-
sonable.
‘‘The state offered evidence of out-of-court state-
ments made by the complainants to other persons that
the defendant sexually assaulted them. Those persons
to whom the state alleges that they made such state-
ments are: as to [the victim], [her mother] and Joshua
Roman; by [C.A.] to [her mother] and Joshua Roman.
‘‘Under our law, the testimony of these witnesses
was limited in its scope to the fact and timing of the
complainants’ complaints, the time and place of the
alleged sexual assaults, and the identity of the alleged
perpetrator. Each of these people testified as to the
statements the complainants made to each of them
regarding the defendant’s—the defendant sexually
assaulting them.
‘‘This evidence is to be considered by you only in
determining the weight and credibility you will give the
complainants’ testimony as it pertains to the charges
of sexual assault. This evidence of out-of-court state-
ments by the complainants of a sexual assault against
them by the defendant is not to be considered by you
to prove the truth of the matter asserted in those out-
of-court statements.
‘‘In determining whether or not these out-of-court
statements corroborate the complainants’ testimony in
court, you should consider all of the circumstances
under which they were made and to whom, and whether
the statements made to these persons were or were not
consistent with the complainants’ testimony in court.
‘‘If you find any delay in their reporting the alleged
incidents, you may consider such delay and any reason
which you may find for such delay in evaluating their
testimony given in court.
‘‘To the extent that you find what they . . . have
said outside the courtroom is consistent with their testi-
mony in court, you may find their testimony in court
to be corroborated or supported with respect to the
fact and timing of their complaint, the time and place
of the alleged sexual assault, and the identity of the
alleged perpetrator.
‘‘To the extent that you find that what they have
said outside the courtroom is inconsistent with their
testimony in court, you may consider the degree of
inconsistency which you find, and you may consider
the reasons which you may find for the inconsistency,
in evaluating their testimony given in court.’’ The defen-
dant objected to the charge to the extent that it differed
from his written request and oral requests. This
appeal followed.
On appeal, the defendant asserts two separate claims.
First, he argues that the court erred by instructing the
jury that the complainants’ allegations were corrobo-
rated by the testimony of the two constancy of accusa-
tion witnesses, and that this error requires reversal.
Second, the defendant argues that the court erred by
denying his motion for mistrial after the state elicited
testimony from C.A. regarding uncharged prior sexual
misconduct by the defendant that had not been dis-
closed prior to trial. We consider each claim in turn.
I
The defendant first claims that the court improperly
instructed the jury regarding the correct use of con-
stancy of accusation evidence, which is admitted under
State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996),
only to prove that a complaint was made, not to prove
that the complaint was true. The defendant specifically
claims that the jury instructions were improper in light
of the preexisting susceptibility of jurors to disregard
the subtle distinction between constancy evidence and
substantive proof, and the court’s use of the word ‘‘cor-
roborate.’’ The state responds that it is not reasonably
probable that the court’s instructions misled the jury.
We agree with the state that the court’s instructions
correctly stated the law and did not mislead the jury.
‘‘Our review of [a jury instruction] claim requires that
we examine the [trial] court’s entire charge to determine
whether it is reasonably [probable] that the jury could
have been misled . . . . While a request to charge that
is relevant to the issues in a case and that accurately
states the applicable law must be honored, a [trial] court
need not tailor its charge to the precise letter of such
a request. . . . If a requested charge is in substance
given, the [trial] court’s failure to give a charge in exact
conformance with the words of the request will not
constitute a ground for reversal. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper. . . . Addition-
ally, we have noted that [a]n [impropriety] in instruc-
tions in a criminal case is reversible . . . when it is
shown that it is reasonably possible for [improprieties]
of constitutional dimension or reasonably probable for
nonconstitutional [improprieties] that the jury [was]
misled.’’ (Emphasis added; internal quotation marks
omitted.) State v. Daniel W. E., 322 Conn. 593, 610, 142
A.3d 265 (2016). Jury instructions regarding constancy
of accusation testimony are nonconstitutional in nature.
See, e.g., State v. Rivera, 145 Conn. App. 344, 351–53,
76 A.3d 197 (allegedly improper instruction as to con-
stancy of accusation testimony was not matter of consti-
tutional magnitude), cert. denied, 310 Conn. 962, 83
A.3d 344 (2013); State v. Wild, 43 Conn. App. 458, 467,
684 A.2d 720 (failure to give instruction as to constancy
of accusation testimony not matter of constitutional
magnitude), cert. denied, 239 Conn. 954, 688 A.2d 326(1996). ‘‘A challenge to the validity of jury instructions
presents a question of law over which [we exercise]
plenary review.’’ (Internal quotation marks omitted.)
State v. Bonilla, 317 Conn. 758, 770, 120 A.3d 481 (2015).
With respect to the governing legal principles, our
Supreme Court concluded in Troupe that ‘‘a person to
whom a sexual assault victim has reported the assault
may testify only with respect to the fact and timing of
the victim’s complaint; any testimony by the witness
regarding the details surrounding the assault must be
strictly limited to those necessary to associate the vic-
tim’s complaint with the pending charge, including, for
example, the time and place of the attack or the identity
of the alleged perpetrator. In all other respects, our
current rules remain in effect. Thus, such evidence is
admissible only to corroborate the victim’s testimony
and not for substantive purposes. Before the evidence
may be admitted, therefore, the victim must first have
testified concerning the facts of the sexual assault and
the identity of the person or persons to whom the inci-
dent was reported. In determining whether to permit
such testimony, the trial court must balance the proba-
tive value of the evidence against any prejudice to the
defendant.’’ (Footnote omitted.) State v. Troupe, supra,
237 Conn. 304–305.
Recently, in State v. Daniel W. E., supra, 322 Conn.
593, our Supreme Court considered an argument nearly
identical to that of the defendant in the present case.
As such, Daniel W. E. is controlling authority for the
present case. In Daniel W. E., the defendant was found
guilty following a jury trial of two counts of sexual
assault in the first degree in violation of General Stat-
utes § 53a-70 (a) (2) and one count of risk of injury to
a child in violation of § 53-21 (a) (2). Id., 595–96. The
defendant claimed that the trial court improperly
instructed the jury on the use of constancy of accusation
evidence because the instruction ‘‘was reasonably
understood by the jury to mean that the constancy
evidence in fact corroborated the [victim’s] testimony,
and the jury could not reasonably distinguish between
the corroboration language in the charge to the jury
and the instruction that the constancy evidence could
not be used as substantive evidence that the defendant
[sexually assaulted] the [victim].’’ (Internal quotation
marks omitted.) Id., 607. The portion of the jury instruc-
tions at issue in that case contained the same operative
language as the jury instruction in the present case.6
Our Supreme Court disagreed with the defendant’s
argument, and held that the instructions did not mislead
the jury. ‘‘It is clear from these instructions that the
jury was permitted to use the constancy testimony only
to corroborate the fact and timing of the victim’s out-
of-court statements to the two constancy witnesses, as
well as any other information necessary to associate
the victim’s out-of-court statements with the pending
charge. The instructions also made clear that, although
the jury was permitted to consider the constancy evi-
dence in evaluating the weight and credibility of the
victim’s testimony, including the reasons for her delay
in reporting the abuse to the police, the evidence could
not be used as proof of the substance or truthfulness
of the statements themselves.’’ (Emphasis in original.)
Id., 612–13. The court rejected the contention that the
jury instructions failed to distinguish between con-
stancy evidence and substantive proof, stating that ‘‘the
trial court expressly cautioned the jury to use the con-
stancy testimony ‘for the limited purpose of corroborat-
ing what the [victim] . . . has testified to in court with
respect only to the fact and timing of her complaint,
the time and place of the alleged sexual assaults, and
the identity of the alleged perpetrator,’ ’’ and ultimately
holding that ‘‘this instruction was sufficient to distin-
guish between constancy evidence and substantive
proof.’’ Id., 613–14.
In the present case, we conclude that it is not reason-
ably probable that the court’s limiting instructions on
constancy evidence misled the jury. This case is virtu-
ally indistinguishable from Daniel W. E. on this issue,
and we decline to diverge from the court’s holding in
that case. Accordingly, we conclude that the trial court
correctly instructed the jury regarding the limited pur-
pose for which the constancy evidence could be con-
sidered.
II
The defendant also argues that the court erred in
denying his motion for mistrial after the state inadver-
tently elicited testimony by C.A. of prior uncharged
misconduct that allegedly occurred in Puerto Rico. Spe-
cifically, the defendant asserts that, notwithstanding
the court’s curative instruction, the testimony was so
prejudicial that the jury could not reasonably be pre-
sumed to have disregarded it. We disagree.
We first set forth our standard of review and the
relevant law. ‘‘In our review of the denial of a motion
for mistrial, we have recognized the broad discretion
that is vested in the trial court to decide whether an
occurrence at trial has so prejudiced a party that he or
she can no longer receive a fair trial. The decision of
the trial court is therefore reversible on appeal only if
there has been an abuse of discretion.’’ (Internal quota-
tion marks omitted.) State v. Anderson, 255 Conn. 425,
435, 773 A.2d 287 (2001). ‘‘If a curative action can obvi-
ate the prejudice, the drastic remedy of a mistrial should
be avoided.’’ (Internal quotation marks omitted.) State
v. Luther, 114 Conn. App. 799, 805, 971 A.2d 781, cert.
denied, 293 Conn. 907, 978 A.2d 1112 (2009). ‘‘[A]s a
general matter, the jury is presumed to follow the
court’s curative instructions in the absence of some
indication to the contrary.’’ State v. Grenier, 257 Conn.
797, 810, 778 A.2d 159 (2001). Where an ‘‘evidentiary
impropriety is not constitutional in nature, the defen-
dant bears the burden of demonstrating harm.’’ Id., 806–
807. ‘‘[T]he burden is on the defendant to establish
that, in the context of the proceedings as a whole, the
stricken testimony was so prejudicial, notwithstanding
the court’s curative instructions, that the jury reason-
ably cannot be presumed to have disregarded it.’’ State
v. McIntyre, 250 Conn. 526, 534, 737 A.2d 392 (1999).
In the present case, the court properly weighed all
of the factors before concluding, within its broad discre-
tion, that the extreme remedy of a mistrial was unwar-
ranted. In particular, the court noted that the defendant
did not object to the improper testimony at the time,
and that the court, sua sponte, halted the proceedings
and issued a curative instruction to the jury immediately
following the testimony. We conclude that the curative
instructions were sufficient to overcome any prejudice
to the defendant resulting from the proffered testimony,
and the court, therefore, did not abuse its discretion in
denying the defendant’s motion for mistrial.
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, we decline to use the victim’s name or to identify
members of the victim’s family through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
In response to a special interrogatory, the jury found that the victim was
under sixteen years of age at all relevant times with respect to the four
counts of which they found the defendant guilty.
2
The journal entry stated ‘‘[a]nd if [my father] didn’t believe me with [his
cousin] not much chance he’s going to believe the thing with Roberto them
being brothers . . . .’’
3
The jury returned verdicts of not guilty for all counts related to C.A.
4
The instructions were as follows: ‘‘The state offered evidence of out-of-
court statements made by the complainant, C.A., to Joshua Roman that the
defendant sexually assaulted her. Under our law, the testimony of this
witness is limited in its scope to the fact and time that the complainants
complained. Again, this is related only to that portion of his testimony where
he indicated that comments were made to him by C.A., limited to the time
and place of the alleged sexual assault and the identity of the alleged perpe-
trator. This particular portion of the testimony, Mr. Roman’s testimony, is
to be considered by you only in determining the weight and credibility
you will give the complainant’s testimony as it pertains to the charges of
sexual assault.
‘‘This evidence of out-of-court statements made by the complainant, C.A.,
of a sexual assault against her by the defendant is not to be considered by
you to prove the truth of the matter asserted in those out-of-court statements.
The complainant C.A. testified here in court before you. You may use her
testimony as evidence and proof of the facts asserted in that testimony and
give it the weight you find is reasonable.
‘‘In determining whether or not these out-of-court statements made by
C.A. to Mr. Roman corroborate the complainant’s testimony here in court,
you should consider all of the circumstances under which they were made
and to whom and whether the statements made to these persons, in this
particular case Mr. Roman, were or were not consistent with the complain-
ant’s testimony given here in court. So, we’re talking about that limited
portion of the testimony related to comments that were allegedly made to
Mr. Roman by C.A. The rest of the testimony is to be considered by you in
the normal course.’’ In its final instructions to the jury, the court clarified
that Roman’s testimony as to the victim’s statements also was being offered
for constancy of accusation purposes.
5
The court instructed the jury that ‘‘[u]nder our law, the testimony of this
witness for purposes of the comments made to her by C.A. and [the victim]
with respect to the allegations here, is limited in scope. The fact of the
timing of the complainants’ complaints, the time and place of the alleged
assaults, and the identity of the alleged perpetrator.
‘‘Each of these individuals, C.A. and [the victim], [their mother] testified
as to statements that were made, again, to her by C.A. and [the victim].
‘‘With respect to this portion of the testimony, it is to be considered by
you, only in determining the weight and . . . credibility you will give to
the complainants’ testimony as it pertains to the charges of sexual assault.
‘‘This evidence of out-of-court statements by the complainants, C.A. and
[the victim], of the assaults against them by the defendant is not to be
considered by you to prove the truth of the matter asserted in those out-
of-court statements.
‘‘In determining whether or not these out-of-court statements corroborate
the complainants’ testimony in court, you should consider all of the circum-
stances under which they were made, to whom, and whether the statements
made to these individuals, to this individual in particular, were or were not
consistent with the complainants’ testimony in court.’’
6
The jury instruction in Daniel W. E. stated in relevant part: ‘‘Under our
law, [constancy of accusation evidence] is an exception only permitted in
cases alleging a sexual assault and only admitted for the limited purpose
of corroborating what the complaining witness [the victim], has testified to
in court with respect only to the fact and timing of her complaint, the time
and place of the alleged sexual assaults, and the identity of the alleged
perpetrator. . . .
‘‘In determining whether or not these out-of-court statements corroborate
[the victim’s] testimony in court, you should consider all of the circumstances
under which they were made and to whom, and . . . whether the statements
made to those persons were or were not consistent with [the victim’s]
testimony here in court.’’ (Internal quotation marks omitted.) State v. Daniel
W. E., supra, 322 Conn. 606–607.