State v. Michael D.

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STATE OF CONNECTICUT v. MICHAEL D.*
(AC 34624)
Beach, Bear and Sheldon, Js.**
Argued April 9—officially released October 7, 2014
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Alice Osedach, assistant public defender, with whom,
on the brief, was David Norman, certified legal intern,
for the appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and John P. Doyle, Jr., senior assistant state’s
attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Michael D., appeals
from the judgment of conviction rendered against him
following a jury trial on two counts of risk of injury to
a child, one in violation of subsection (1), and the other
in violation of subsection (2), of General Statutes (Rev.
to 2001) § 53-21.1 On appeal, the defendant claims that
the trial court erred by: (1) denying his motion to sup-
press the results of DNA testing of a suspected semen
stain on a piece of the victim’s clothing, which his ex-
wife, the victim’s mother, had turned over to the police
several years after finding it hidden in his vehicle; (2)
denying his motion in limine to preclude the introduc-
tion of a pornographic magazine that his ex-wife had
also turned over to the police after finding it hidden,
along with the victim’s stained clothing, in his vehicle;
and (3) allowing the case to proceed to trial and verdict
on the state’s duplicitous substitute information,
thereby allegedly violating his constitutional right to a
unanimous jury verdict. We reject each of the defen-
dant’s claims, and thus affirm the judgment of the
trial court.
The following procedural history and facts are rele-
vant to our resolution of the foregoing issues. The defen-
dant and Ann P. were married in December, 1999. At
the time of their marriage, Ann P. had a six year old
daughter from a previous relationship, the victim. From
1999 until 2005, the defendant lived with his wife and the
victim in Meriden. The state alleged that the defendant
sexually assaulted the victim on three separate occa-
sions between 2001 and 2003. The victim testified that
the assaults had taken place at intervals of approxi-
mately one year, which she said she could recall on the
basis of the passage of her birthdays.
The first incident allegedly occurred in 2001, when
the victim was seven years old. She testified at trial
that, on that occasion, the defendant entered her bed-
room late at night, removed her pajamas and her under-
wear, put her in one of her dresses and applied makeup
to her face using a lipstick she kept in her room for
play. The defendant then placed her in her bed and
began touching her vagina. The defendant ultimately
penetrated her vagina digitally, causing her pain, then
left the bedroom after warning her not to tell her mother
what he had done. After he left the bedroom, the victim
took off the dress and hung it up, then washed the
makeup off her face with a napkin in the bathroom.
The second incident allegedly occurred in 2002, when
the victim was eight years old. She testified that on that
occasion, the defendant again entered her bedroom late
at night, removed her pajamas and underwear, and
dressed her in a different dress from her wardrobe.
Then, she recalled, he removed his own shirt and shoes,
and kissed her up and down her body before performing
cunnilingus on her. The victim testified that when she
struggled to fight off the defendant and tried to hit him,
he covered her mouth with his hand and pinned back
her arm.
The third incident allegedly occurred in 2003, when
the victim was nine years old. She testified that this
incident also occurred in her bedroom late at night.
This time, however, the defendant, who already was
undressed when she first saw him, did not dress her
up or put makeup on her. Instead, he immediately
removed her clothing, including her underwear, and
attempted to force her to submit to penile-vaginal inter-
course with him. She testified that the defendant’s
‘‘penis was touching [her vagina] and he was pushing
. . . .’’ The defendant was able partially to insert his
penis into her vagina. The victim recalled that, in an
attempt to make the defendant stop, she kicked over
an object in her room. The defendant thereafter left
her bedroom.
In October, 2004, Ann P. became suspicious that the
defendant was having an affair. Believing that she might
find evidence of her husband’s suspected infidelity, Ann
P. searched the vehicle the defendant regularly drove,
a quad cab vehicle she had purchased prior to the mar-
riage, to which a second key was kept in the house.2
Secreted in a small storage space behind the rear row
of seats in the vehicle she found a plastic bag. Upon
examining the contents of the bag, she discovered that
it contained several articles of her daughter’s outgrown
clothing that she had previously set aside to take to
Goodwill and two pornographic magazines: an
unnamed adult fetish magazine and another magazine
entitled ‘‘Barely Legal,’’ in which young females were
depicted in sexually suggestive settings and poses.
Sensing that something was ‘‘really wrong,’’ Ann P. took
the bag out of the vehicle and hid it in her home where
she thought the children would not find it. At some
point, she went through the bag and discovered that
some of her daughter’s clothing felt ‘‘stiff’’ to the touch,
which she attributed to the possible presence of semen.
Shortly after discovering the bag and its contents, Ann
P. filed for divorce. The divorce was finalized in Febru-
ary, 2005.
In the years following the divorce, Ann P. occasion-
ally asked her daughter ‘‘in a roundabout way’’ whether
‘‘anybody [had] ever done anything’’ inappropriate to
her. The victim did not disclose the alleged abuse to
her mother until November, 2008, when they started
discussing the possibility of her mother dating again.
She disclosed at that time that the defendant had sexu-
ally assaulted her.
Shortly thereafter, Ann P. and her daughter filed a
report with a school resource officer assigned to her
daughter’s school, who referred them to Detective Hec-
tor Cardona of the Meriden Police Department. Ann P.
accompanied her daughter to the police station to
report the alleged abuse and her own earlier discovery
of the bag and its contents in the defendant’s vehicle. At
the request of the investigating officers, Ann P. retrieved
the bag from her home and turned it over to the police.
Detective Cardona testified that he observed that one
article of clothing in the bag had a ‘‘substance’’ on it
that appeared ‘‘to be semen.’’ Thereafter, the defendant
was interviewed by the police. When the defendant was
asked about the suspected semen stains on the victim’s
clothing, he told police that Ann P. had occasionally
masturbated him onto clothing. He denied the victim’s
allegations of sexual assault and consented to giving a
sample of his DNA by the taking of a buccal swab.
The defendant was arrested on the basis of the pre-
viously described evidence and the victim’s statement
to the police.3 After a jury trial, the defendant was found
guilty of two counts of risk of injury to a child. This
appeal followed. Additional facts will be set forth as
necessary.
The police subsequently sent the clothing with the
suspected semen stain to the state forensic science
laboratory for DNA analysis and testing. Testing on
eight articles of clothing revealed the presence of the
defendant’s semen on one item of the victim’s clothing:
a pair of blue silk shorts, size six/seven.
Prior to trial, the defendant filed a motion to suppress
the results of the DNA test. The defendant also filed
a motion in limine to preclude evidence of the two
pornographic magazines that Ann P. had found together
with the victim’s semen stained clothing in the bag in
his vehicle. Following a hearing on the motions, the
trial court denied the motion to suppress the results of
the DNA testing. The court also denied the defendant’s
motion in limine to preclude evidence of his possession
of the ‘‘Barely Legal’’ magazine that had been found
together with the semen stained clothing.
Prior to trial, on January 13, 2012, the state filed a
substitute information against the defendant, charging
him as follows: in count one, with sexual assault in the
first degree in violation of General Statutes § 53a-70; in
count two, with risk of injury to a child in violation of
§ 53-21 (2); and in count three, with risk of injury to a
child in violation of § 53-21 (1). Each such charge was
based upon the defendant’s alleged conduct in all three
of the reported incidents that had led to his arrest. The
defendant later was tried on these charges before a
jury, which acquitted him of sexual assault in the first
degree but found him guilty of both counts of risk of
injury to a child. The trial court thereafter rendered
judgment accordingly, sentencing the defendant to a
total effective term of twenty years of incarceration,
execution suspended after fourteen years, followed by
fifteen years of probation, broken down as follows: on
count two, on the charge of risk of injury to a child
in violation of § 53-21 (2), ten years of incarceration,
execution suspended after seven years, followed by
three years of probation; and on count three § 53-21
(1), a term of ten years of incarceration, execution
suspended after seven years, followed by fifteen years
of probation, to be served consecutively to the sentence
on count two. The defendant appeals from that judg-
ment. Additional facts will be set forth as necessary to
review the defendant’s claims.
I
The defendant first claims that the trial court improp-
erly denied his motion to suppress the results of DNA
testing performed on the victim’s blue silk shorts which
his ex-wife had found hidden in his vehicle and turned
over to the police. Specifically, the defendant argues
that his ‘‘expectation of privacy in the clothing items
in his possession was manifestly clear,’’ and therefore
that the warrantless DNA testing of the shorts was
unlawful under article first, § 7, of the Connecticut con-
stitution, as interpreted and applied in State v. Joyce,
229 Conn. 10, 639 A.2d 1007 (1994), on appeal after
remand, 243 Conn. 282, 705 A.2d 181 (1997), cert.
denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674
(1998). We disagree.
As a preliminary matter, we set forth the appropriate
standard of review. ‘‘Our standard of review of a trial
court’s findings and conclusions in connection with a
motion to suppress is well defined. A finding of fact
will not be disturbed unless it is clearly erroneous in
view of the evidence and pleadings in the whole record
. . . . [W]here the legal conclusions of the court are
challenged, we must determine whether they are legally
and logically correct and whether they find support in
the facts set out in the memorandum of decision . . . .
We undertake a more probing factual review when a
constitutional question hangs in the balance.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).
‘‘The touchstone to determining whether a person
has [the ability] to contest an allegedly illegal search
is whether that person has a reasonable expectation
of privacy in the invaded place. . . . Absent such an
expectation, the subsequent police action has no consti-
tutional ramifications. . . . In order to meet this
[threshold inquiry] . . . a two-part subjective/objec-
tive test must be satisfied: (1) whether the [person con-
testing the search] manifested a subjective expectation
of privacy with respect to [the information searched];
and (2) whether that expectation [is] one that society
would consider reasonable. . . . This determination is
made on a case-by-case basis. . . . Whether a defen-
dant’s actual expectation of privacy . . . is one that
society is prepared to recognize as reasonable involves
a fact-specific inquiry into all the relevant circum-
stances. . . . Furthermore, [t]he defendant bears the
burden of establishing the facts necessary to demon-
strate a basis for standing . . . .’’ (Internal quotation
marks omitted.) State v. Kalphat, 285 Conn. 367, 374–75,
939 A.2d 1165 (2008).
The following additional facts are relevant to our
resolution of the defendant’s claim. On January 17, 2012,
the trial court held a hearing on the defendant’s motion
to suppress. For the purposes of the hearing, the parties
stipulated to the following facts: ‘‘The girl’s silk shorts
on which contested DNA testing was performed were
in a plastic bag in the defendant’s motor vehicle. . . .
The bag was taken from the defendant’s motor vehicle
by his ex-wife . . . [Ann P.] in 2004. . . . This bag was
turned over to the . . . police department by [Ann P.]
in 2009.’’ At the defendant’s request, the court also con-
sidered the factual averments set forth in the arrest
warrant affidavit, which were consistent with, albeit
more detailed than, those in the joint stipulation.4
According to the arrest warrant affidavit, in the fall
of 2004, Ann P. discovered a plastic bag containing
several articles of her daughter’s clothing and two por-
nographic magazines concealed in the defendant’s vehi-
cle. Ann P. removed the bag from the vehicle. Following
her daughter’s disclosure of the sexual abuse in 2008,
Ann P. transferred the bag to the Meriden police. She
related to the police that some of the items appeared
to be stained with semen. The defendant, who was later
interviewed by the police, suggested that the victim’s
clothing was in his vehicle for the purpose of disposing
of it. He attributed the suspected semen stains on the
clothing to what he described as his ex-wife’s past prac-
tice of using clothing to masturbate him. Even so, he
denied having any specific recollection of the particular
clothing at issue. The defendant voluntarily consented
to the taking of a buccal swab to give the police a
sample of his DNA.
On the basis of these facts and the arguments of
counsel that were based upon them, the trial court
denied the defendant’s motion to suppress. The court
concluded that the defendant did not have a reasonable
expectation of privacy in the victim’s clothing, and thus
that he had no right to challenge the testing of the
clothing as an unreasonable search under State v. Joyce,
supra, 229 Conn. 10.
The defendant argues on appeal that he manifested
a clear expectation of privacy in the tested clothing, as
evidenced by his concealment of the clothing in the
bag in his vehicle. He further claims that he had a
‘‘reasonable expectation of privacy in the myriad per-
sonal facts that could be—and indeed were—revealed
by [the] DNA testing of the clothing items.’’ The defen-
dant’s reliance on Joyce is misplaced.
The issue in Joyce was whether chemical analysis,
specifically, gas chromatography performed on the
defendant’s clothing while it was lawfully in the posses-
sion of the police, required a warrant under our state
constitution. State v. Joyce, supra, 229 Conn. 11. In that
case, firefighters and paramedics were dispatched on
reports of a fire in East Haven. Id., 12. When emergency
crews arrived, they found a home on fire and Wallace
Joyce, the defendant, standing waist deep in a nearby
river, badly burned. Id. Paramedics at the scene
removed Joyce’s clothing to clean and dress his burns,
and then transported him to a nearby hospital for emer-
gency medical treatment. Id., 12–13. Detectives took
possession of Joyce’s burned wet clothing at the scene
with the intention of returning it to him. Id., 14.
During the course of the investigation that followed,
Joyce made statements to the detectives that caused
them to consider him a potential suspect in the starting
of the fire. Without first obtaining a warrant, investiga-
tors sent Joyce’s clothing to the state forensic labora-
tory for chemical testing, which revealed that the
clothing contained a gas accelerant. Id., 14–15.
On appeal, our Supreme Court determined that the
warrantless chemical testing had been conducted in
violation of the state constitution, and thus that the
results of such testing should have been suppressed.
Id., 27. The court’s analysis assumed, without objection
by the state, that the defendant had a right to challenge
the testing of his seized clothing because ‘‘generally
there is a reasonable expectation of privacy in the
clothes that one wears.’’ (Emphasis added.) Id., 21. In
the case before it, moreover, the court noted that the
type of testing to which the clothing had been subjected
was not only ‘‘capable of determining a multitude of
private facts about an individual’’; id., 24; but had in
fact revealed ‘‘a multitude of private facts’’ about the
defendant, including the ‘‘presence of an organic mate-
rial in [his] underwear . . . .’’ Id. Finding that the con-
duct of such intrusive testing constituted a search under
our state constitution, which ‘‘mere custody of the
defendant’s property’’; id., 21; did not entitle the police
to make without further legal authorization, the court
ruled that the results of such testing without a warrant
had to be suppressed. Id., 27.
In State v. Bernier, 246 Conn. 63, 717 A.2d 652 (1998),
our Supreme Court clarified its holding in Joyce. Ber-
nier was an arson case in which the defendant sought
to suppress the results of warrantless chemical testing
of certain charred wood flooring samples that state fire
investigators had seized from his home to assist them
in conducting a cause and origin investigation with
respect to the fire. The trial court had ordered suppres-
sion of the results of the testing under Joyce. On appeal,
this court affirmed the granting of the motion to dismiss,
and our Supreme Court then reversed the judgment,
distinguishing Joyce as follows. Whereas the clothing
in Joyce had been seized by police for limited, nonin-
vestigative purposes pursuant to their community care-
taking function, the flooring in Bernier had been seized
by fire officials pursuant to the statutory scheme
expressly authorizing such seizures for the broader pur-
pose of investigating the causes and origins of fires.
Id., 76; see also id., 66–67 and 68–69 n.6 (discussing
General Statutes §§ 29-302, 29-310 and 29-311). The
court in Bernier thus reasoned that, even if a defendant
has a reasonable expectation of privacy in the contents
of his personal property, ‘‘[o]nce [that] property has
been legitimately seized for investigatory purposes, the
major portion of his privacy expectations has been legit-
imately breached,’’ thereby eliminating the need for a
warrant before subjecting the property to further intru-
sions such as chemical analysis. Id.
We read Joyce and Bernier together to hold that
where, as in Joyce, property is seized by the police
under limited authority not justifying its submission for
laboratory testing and analysis, the performance of such
testing and analysis on it is a search that requires further
legal authorization, under a warrant or a statute, or
further legal justification under an established excep-
tion to the warrant requirement, if and to the extent that
the defendant has a reasonable expectation of privacy in
the seized property or its contents that the testing and
analysis will reveal. Where, however, items are lawfully
seized for the purposes of investigation, including,
potentially, chemical testing, any preexisting expecta-
tion of privacy in those aspects of the property or its
contents that can only be revealed by such chemical
testing is already ‘‘legitimately breached’’ to the extent
that no further authorization or justification for such
testing is required, by warrant or otherwise.
In the present case, the trial court ruled that the
defendant could not avail himself of the constitutional
protections delineated in Joyce because the clothing in
which he claimed a reasonable expectation of privacy,
unlike the undergarments tested in Joyce, belonged to
and had been worn only by the child victim, not by the
defendant himself. Hence, he could not claim, as had
the defendant in Joyce, that he had worn the clothing
in such a manner as to make it likely that it became
a repository of organic material potentially revealing
highly private facts about him.
Under the reasoning of Joyce and Bernier, it was
therefore the defendant’s burden to show that he had
some alternative basis for establishing that he had a
reasonable expectation of privacy in the victim’s cloth-
ing even after his ex-wife turned the clothing over to
the police. Having failed to testify or adduce other evi-
dence at the suppression hearing to prove how he used
the clothing or stored it in an effort to keep it private,
he failed to establish any basis for having an expectation
of privacy with respect to it, and accordingly, the trial
court properly denied his motion to suppress.
The defendant has attempted to analogize his case
to Joyce, arguing that because the seized clothing was
kept hidden in a bag in his vehicle, and it was claimed
by the state to contain his semen, suggesting that he
may have used it to engage in the private activity of
masturbation, he had a reasonable expectation of pri-
vacy both in the clothing itself and in the ‘‘invisible
information present [there]in.’’ The defendant thus
claims that Joyce applies here, despite the fact that the
clothing at issue once belonged to and was worn by
the victim instead of him.
The initial problem with this contention is that,
although the evidence before the trial court made that
theory possible, the defendant never testified in support
of it, and in fact contradicted it when he was confronted
with the bag and its contents during his interview with
the police after his ex-wife turned it over to them. The
defendant thus denied taking the victim’s clothing for
sexual purposes, suggested that the clothing may have
been in his vehicle because he intended to discard it,
and surmised that any semen present on it may have
been deposited when Ann P. used it to masturbate him.
In short, the defendant failed to commit himself to the
theory he now espouses, that he intentionally retained
the stained clothing in a private place for his private
sexual purposes.
The right of privacy is personal to the party seeking
to invoke it, and thus cannot be left to the court’s specu-
lation. It was the defendant’s burden to adduce specific
facts to show that he manifested a subjective expecta-
tion of privacy in the victim’s clothing and that that
expectation of privacy was reasonable. He failed to
do so.
Moreover, even if the defendant had produced evi-
dence demonstrating that he once had a personal expec-
tation of privacy in the victim’s clothing, any such
expectation of privacy was ‘‘legitimately breached’’
once the police lawfully took possession of it with his
ex-wife’s consent. See State v. Bernier, supra, 246 Conn.
76. It was undisputed that Ann P. took the bag con-
taining her daughter’s clothing out of the defendant’s
vehicle in 2004 and kept it in her possession for more
than four years before turning it over to the police. The
facts further demonstrate that Ann P. acquiesced in the
police request to turn the clothing over to them with
her full consent to take whatever investigative measures
they deemed appropriate thereafter, including, inferen-
tially, submitting it for laboratory testing to confirm her
stated suspicion that the visible stain she had found on
the clothing was the defendant’s semen.
‘‘A search is not unreasonable . . . if a person with
authority to do so has voluntarily consented to the
search.’’ (Internal quotation marks omitted.) State v.
Brunetti, 279 Conn. 39, 69, 901 A.2d 1 (2006), cert.
denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85
(2007). Ann P.’s consent to surrender the tested clothing
to the police, which has never been challenged by the
defendant, operated, like the cause and origin statute
in Bernier; see State v. Bernier, supra, 246 Conn. 68
n.6; to authorize the police to test the clothing for any
evidence they might find relating to the commission of
the crimes under investigation.5
In light of these conclusions, the defendant’s claim
that the results of the DNA testing should have been
suppressed as fruit of an unlawful warrantless search
is unavailing. Not only did the defendant not establish
that he had a reasonable expectation of privacy in the
victim’s semen stained clothing, but the state had full
authority to conduct the challenged testing notwith-
standing any such expectation of privacy pursuant to
Ann P.’s consent. See id., 76 (intrusion by state had
already occurred when officials legitimately took pos-
session of flooring sample in defendant’s home).
Accordingly, we conclude that the trial court did not
err by denying the defendant’s motion to suppress.
II
We next address the defendant’s claim that the trial
court erred in denying the defendant’s motion in limine
to preclude evidence regarding his possession of the
pornographic magazine, ‘‘Barely Legal.’’ The defendant
makes three interrelated claims within his larger claim,
as follows: (1) that evidence pertaining to the magazine
was not relevant to the jury’s determination of the
charged offenses; (2) that the magazine constituted
inadmissible character and propensity evidence; and
(3) that, even assuming that the evidence was relevant,
its negligible probative value was outweighed by its
prejudicial impact. We disagree.
The following additional facts are relevant to our
resolution of this claim. Prior to trial, the defendant
filed a motion in limine to preclude all evidence relating
to the pornographic magazine.6 The state subsequently
filed a notice of intent and uncharged misconduct, con-
firming that it would seek to introduce the magazine
because it was ‘‘relevant to motive, intent, common
scheme,’’ and to ‘‘show the defendant’s inclination or
sexual attraction to the minor child in this matter.’’
An evidentiary hearing was held on the defendant’s
motion to preclude the evidence. Over the course of
two days, the court heard testimony from an expert
witness, Dennis Gibeau, a licensed clinical psychologist
specializing in the assessment and treatment of sex
offenders, and from Ann P.
Gibeau testified that ‘‘Barely Legal’’ is a legally sold
and widely distributed pornographic magazine. The
magazine ‘‘depicts younger adult females in youthful
poses, youthful appearance, youthful clothing, some-
times with shaved or partially shaved pubic area,
emphasizing their innocence, their vulnerability, and
their sexual inexperience.’’ The photographs in the mag-
azine are accompanied by profiles suggesting that the
women are seeking to ‘‘explore more sexual avenues
with older men.’’
Much of Gibeau’s testimony focused on the distinc-
tion between the physical and sexual characteristics of
prepubescent girls and those of postpubescent females
older than age thirteen, who have ‘‘secondary sexual
characteristics, breasts, hair, [and] the body filling out
. . . .’’ Gibeau posited that it would be speculative to
connect possession of ‘‘Barely Legal,’’ which features
postpubescent females, with a sexual interest in prepu-
bescent girls. In his estimation, the women in the maga-
zine were not attempting to portray or invoke images
of girls age seven, eight or nine.
The trial court questioned Gibeau at length as to the
significance of the fact that the magazine was discov-
ered in a bag that also contained the victim’s semen
stained clothing. Upon further questioning by the prose-
cution, also focusing on the commingling of the porno-
graphic magazines and the victim’s clothing in the bag,
Gibeau conceded that one could ‘‘clinically infer’’ that
these items tended to demonstrate that the defendant
had a sexual interest in the victim. On redirect, he
clarified that the items raised a ‘‘suspicion’’ but could
not support a clinical conclusion regarding the defen-
dant’s interest in the victim.
Ann P. also testified at the motions hearing. She con-
firmed that she had discovered the bag hidden in the
defendant’s vehicle in October, 2004, the year following
the third alleged assault. She testified that the bag con-
tained her daughter’s outgrown clothing, including a
garment she recognized as belonging to her daughter;
‘‘some silk PJs’’ that ‘‘she used to wear to bed or as
underwear;’’ and pornographic magazines, including a
copy of ‘‘Barely Legal.’’
In support of the defendant’s motion to preclude the
evidence, defense counsel argued that possession of
the magazine did not qualify as ‘‘uncharged miscon-
duct,’’ and thus it would be error for the court to allow
the evidence under one of the exceptions delineated in
§ 4-5 of the Connecticut Code of Evidence. Additionally,
defense counsel argued that because possession of the
magazine was not connected to the charges against the
defendant, it was not relevant. Finally, defense counsel
emphasized that the defendant’s interest in sexually
mature women, such as those featured in the magazine,
could not form the basis for a reasonable inference
that he was sexually attracted to children, or thus to
the victim.
The state conceded that the evidence did not consti-
tute uncharged misconduct. It maintained, however,
that the evidence demonstrated ‘‘the defendant’s sexual
attractiveness to his stepdaughter,’’ and thus it was
probative of his motive and intent to commit the crimes.
Additionally, the state argued that in a ‘‘he-said-she-
said’’ situation of the sort here at issue, the evidence
served to corroborate the victim’s testimony.
The trial court denied the defendant’s motion in
limine to preclude the evidence and made factual find-
ings on the record in support of its ruling. On that
subject it stated, inter alia: ‘‘ ‘Barely Legal’ is a magazine
that emphasizes the following: It shows young girls,
maybe mid- or late teens, in youthful sexual settings
and emphasizes the vulnerability of the young girls. It
has young girls in outfits worn to show their vulnerabil-
ity. It indicates it has pictures of females wanting to
explore relationships with men, and, as the witness
testified yesterday, it actually depicted girls that appear
or try to appear younger than eighteen. The magazine’s
purpose is to stimulate older [men] concerning
younger girls.
‘‘Now, the issue here that I wanted to clear up today,
it’s not like we have ‘‘Barely Legal’’ magazine at the
defendant’s office or he was looking at it at a friend’s
house, and it’s not like the clothing that was worn by
the [victim] here was found in a different area of the
house or in another family member’s house or that
semen was not connected. We have, in effect, three
items within the same plastic bag, which [are] the cloth-
ing items worn by the [victim]. There’s not a claim that
they’re worn by the [victim] during the alleged sexual
assault. The allegations of the state [are] that this defen-
dant did have this young girl, the [victim], dress in a
certain way prior to the sexual assaults that allegedly
happened. So, the clothing of the young [victim] was
found within this plastic bag. A clothing item of this
young girl, the [victim] here, had semen of the defendant
on it. In addition, the magazine ‘‘Barely Legal’’ was all
found. So, all three of these items were in the defen-
dant’s car, all in the same place.
‘‘The magazine ‘Barely Legal’ tends to establish the
fact of the defendant’s interest in young girls. The maga-
zine in this court’s estimation is probative of the fact
that the defendant regards young girls as objects of
sexual interest and is thus relevant to the charges
against him.’’ Defense counsel requested that the trial
court articulate whether it weighed the relevance of
the magazine against potential prejudice to the defen-
dant, to which the court responded in the affirmative.7
The jury heard testimonial evidence pertaining to the
defendant’s possession of the magazine. In addition,
the magazine went to the jury as a full exhibit.8
The defendant argues on appeal that the trial court
erred in denying the motion in limine to preclude evi-
dence of the magazine. Consistent with the arguments
advanced before the trial court, the defendant now
argues that the evidence was irrelevant, that it consti-
tuted improper character and propensity evidence, and
that even if it was relevant, its probative value was
outweighed by the danger of unfair prejudice. We
disagree.
We first set forth the appropriate standard of review.
‘‘We review the trial court’s decision to admit evidence,
if premised on a correct view of the law . . . for an
abuse of discretion. . . . It is axiomatic that [t]he trial
court’s ruling on the admissibility of evidence is entitled
to great deference. . . . In this regard, the trial court
is vested with wide discretion in determining the admis-
sibility of evidence . . . . Accordingly, [t]he trial
court’s ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court’s
discretion. . . . Furthermore, [i]n determining
whether there has been an abuse of discretion, every
reasonable presumption should be made in favor of the
correctness of the trial court’s ruling, and we will upset
that ruling only for a manifest abuse of discretion.’’
(Citation omitted; internal quotation marks omitted.)
State v. Popeleski, 291 Conn. 769, 774, 970 A.2d 108
(2009).
Relevant evidence is ‘‘evidence having any tendency
to make the existence of any fact that is material to
the determination of the proceeding more probable or
less probable or less probable than it would be without
the evidence.’’ Conn. Code Evid. § 4-1. In a criminal
case, the allegations forming the basis of the charges
in the information determine the material issues at trial.
‘‘[E]vidence need not exclude all other possibilities [to
be relevant]; it is sufficient if it tends to support the
conclusion [for which it is offered], even to a slight
degree.’’ (Internal quotation marks omitted.) Jewett v.
Jewett, 265 Conn. 669, 679–80, 830 A.2d 193 (2003). ‘‘No
precise and universal test of relevancy is furnished by
the law, and the question must be determined in each
case according to the teachings of reason and judicial
experience.’’ (Internal quotation marks omitted.) State
v. Anwar S., 141 Conn. App. 355, 375, 61 A.3d 1129,
cert. denied, 308 Conn. 936, 66 A.3d 499 (2013).
The defendant argues that ‘‘[t]he only inference to
be made from the magazine is that the defendant had
a sexual interest in young-looking postpubescent adult
women—a fact utterly irrelevant to the material factual
issues in the case.’’ This is an oversimplification in light
of the facts of this case.
Here, the state alleged that the defendant sexually
assaulted the victim in 2001, 2002, and 2003, several
years before she disclosed the sexual abuse to the
police. Any evidence tending to show that the defendant
had a sexual interest in the victim was relevant to the
central question before the jury, which was whether or
not the defendant actually touched or assaulted the
victim in the manner alleged.
The testimony at trial established that in 2004, the
year following the third alleged sexual assault, Ann P.
discovered the pornographic magazine and her daugh-
ter’s outgrown clothing, together, in a bag secreted in
the defendant’s vehicle. One item of clothing, the pair
of blue silk shorts, was soiled with the defendant’s
semen. The packaging of these items together, and the
fact that they were hidden, supports a reasonable infer-
ence that the defendant viewed the pornographic maga-
zine while masturbating with the victim’s clothing. This
evidence permitted a finding that the defendant had a
sexual interest in the victim and motivation to commit
the alleged crimes. Accord Phillips v. State, 269 Ga.
App. 619, 620, 604 S.E.2d 520 (2004) (defendant’s sexual
interest in complainant, and thus his motivation to
touch her sexually, was supported by evidence that he
kept nude photographs of complainant between pages
of ‘‘Barely Legal’’ magazine), petition for certification
dismissed, 2006 Ga. LEXIS 942 (Ga. November 6, 2006).
In addition to the connection between the magazine
and the victim’s semen stained clothing, there was other
evidence from which to infer that the incidents that
allegedly transpired between the defendant and the vic-
tim mimicked the fantasies depicted in the magazine.
The victim alleged that in two of the three incidents,
the defendant dressed her up prior to sexually
assaulting her; on one of these occasions, he also
applied makeup to her face. The trial court’s factual
findings about ‘‘Barely Legal’’ were that it features
‘‘young girls in outfits worn to show their vulnerability’’
and it ‘‘depict[s] girls that appear or try to appear
younger than eighteen.’’ In addition, the trial court
found that the ‘‘magazine’s purpose is to stimulate older
[men] concerning younger girls.’’ Putting the defen-
dant’s prepubescent/postpubescent distinction aside,
the evidence supported an inference that the defendant
fantasized about young women in child-like scenarios.9
The victim’s testimony suggested that she was dressed
up and adorned so as to appear more adult. In other
words, she was put in a situation that made her appear
like the young females depicted in the Barely Legal
magazine, where she was cast in the role of a vulnerable
young lady, attractive as a sexual object to an older man.
The evidence and testimony at trial suggests that the
magazine was supportive of this inference because of
its specific connection to the victim’s semen stained
clothing and because of the similarity between the fan-
tasies depicted in it and the alleged incidents as
described by the victim. Evidence that the defendant
possessed the magazine with the victim’s clothing was
admissible to show that he had a sexual interest in her.
See State v. James, 211 Conn. 555, 577–78, 560 A.2d 426
(1989) (defendant’s prior conduct toward complainant
admissible to show he was especially attracted to her).
Accordingly, we conclude that the trial court properly
deemed the evidence relevant to the jury’s determina-
tion in this case.
The defendant next claims that the court erred in
denying his motion in limine because his possession of
the magazine was tantamount to improper character
and propensity evidence and thus should have been
precluded.10 We disagree. Section 4-4 of the Connecticut
Code of Evidence prohibits the use of evidence of the
defendant’s trait of character for purposes of proving
that he ‘‘acted in conformity with the character trait on
a particular occasion . . . .’’ Conn. Code Evid. § 4-4
(a). Likewise, § 4-5 of the Connecticut Code of Evidence
prohibits specific instances of conduct, i.e., evidence
of other crimes, wrongs, or acts of a person, to prove the
criminal tendencies of that person, subject to certain
limited exceptions. See also State v. Holliday, 159 Conn.
169, 172, 268 A.2d 368 (1970) (admission of evidence
of conduct on part of defendant indicating conscious-
ness of guilt). The rules barring the use of propensity
evidence, either in the form of general character traits
or specific instances of conduct, are predicated on elim-
inating the risk that the jury will decide present facts
on the basis of the defendant’s past behavior; this is so
because of both the risk of unfairness to the defendant
and the general understanding that forecasting future
behavior on the basis of past conduct is inherently
unreliable. C. Tait & E. Prescott, Connecticut Evidence
(5th Ed. 2014) § 4.12.2, p. 166.
The record reflects that these concerns were not
implicated in the present case. ‘‘[T]he inadmissibility
of an evidential fact for one purpose does not render it
inadmissible for some other purpose otherwise proper.’’
State v. Marshall, 166 Conn. 593, 600, 353 A.2d 756
(1974). The parties agreed that possession of the maga-
zine did not constitute evidence of prior misconduct
under § 4-5 of the Connecticut Code of Evidence. In
fact, the state acknowledged the publication’s legality
in its closing argument. Because we decide that the
trial court did not err in determining that the evidence
was relevant, we decline the defendant’s invitation to
disturb the trial court’s conclusion that potential preju-
dice to the defendant did not outweigh that magazine’s
probative value. ‘‘[T]he determination of whether the
prejudicial impact of evidence outweighs its probative
value is left to the sound discretion of the trial court
. . . and is subject to reversal only [when] an abuse of
discretion is manifest or injustice appears to have been
done.’’ (Internal quotation marks omitted.) State v.
Rinaldi, 220 Conn. 345, 355, 599 A.2d 1 (1991). ‘‘[U]ndue
prejudice is not measured by the significance of the
evidence which is relevant but by the impact of that
which is extraneous.’’ (Emphasis added; internal quota-
tion marks omitted.) State v. Allen, 289 Conn. 550, 564,
958 A.2d 1214 (2008). Here, as previously noted, the
evidence relating to the magazine was relevant to show
the defendant’s sexual interest in the victim. The record
clearly reflects that the trial court carefully balanced
the probative value of the evidence on that issue against
any undue prejudice potentially arising therefrom. The
trial court did not abuse its discretion in admitting
the evidence.11
III
The defendant’s final claim is that the state’s substi-
tute information was impermissibly duplicitous, and
thus, that allowing his jury to find him guilty thereunder
deprived him of his constitutional right to a unanimous
jury verdict. Specifically, the defendant contends that
‘‘[b]y charging three separate and factually distinct inci-
dents under one count, there is a substantial possibility
that the jury did not agree on the same factual basis
for conviction.’’ We are not persuaded.
The state based each of its charges on three separate
incidents of sexual misconduct allegedly occurring in
2001, 2002, and 2003. The state initially charged the
defendant in a fifteen count information with several
different charges, each of which was alleged to have
been committed in the course of one of the three inci-
dents identified therein by the year of its alleged occur-
rence. Prior to trial, on January 13, 2012, the state filed a
substitute information, consolidating the fifteen counts
into the three counts on which he went to trial.
In the first count of the substitute information, the
state charged the defendant with sexual assault in the
first degree. In the second count of the substitute infor-
mation, the state charged the defendant with risk of
injury to a child, and alleged that ‘‘on . . . diverse dates
from 2001–2003 . . . the [defendant] had contact with
the intimate parts, as defined in [General Statutes §]
53a-65, of a child under the age of sixteen years or
subjected a child under sixteen years of age to contact
with intimate parts of such person, in a sexual and
indecent manner likely to impair the health or morals
of such child, said conduct being in violation of section
53-21 (2) of the Connecticut General Statutes.’’
In the third count, the state charged the defendant
with risk of injury to a child, and alleged that ‘‘on . . .
diverse dates from 2001–2003 . . . the [defendant] did
wilfully or unlawfully cause or permit a child under the
age of sixteen years to be placed in such a situation
that its life or limb was endangered, or its health was
likely to be injured, or its morals likely to be impaired,
or did an act likely to impair the health or morals of
such child, such conduct being in violation of section
53-21 (1) of the Connecticut General Statutes.’’
The defendant asserts that the state’s decision to
charge him on the basis of three separate and distinct
incidents in each count of the substitute information
posed the risk that the jury would find him guilty of
those charges without unanimously agreeing on the
particular conduct constituting the charged offense.
The defendant claims that the state’s rebuttal argument,
in which it invited the jury to find him guilty as charged
if it found that ‘‘any one of these particular incidents
occurred, all of them or any one of them,’’ further ampli-
fied the risk that the jury failed to agree on the conduct
underlying the crimes charged, but nonetheless found
the defendant guilty of those crimes. (Emphasis added.)
As a preliminary matter, the defendant concedes that
he did not object to the substitute information at trial
as duplicitous or as implicating his constitutional right
to a unanimous verdict. Accordingly, the defendant
seeks review under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989).12 Under Golding, a ‘‘defen-
dant can prevail on a claim of constitutional error not
preserved at trial only if all of the following conditions
are met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation clearly exists and
clearly deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of
any one of these conditions, the defendant’s claim will
fail.’’ (Emphasis omitted; footnote omitted.) Id.
We will review the defendant’s claim because we
agree that the record is adequate for review and the
claim is of constitutional magnitude. See State v. Mar-
celino S., 118 Conn. App. 589, 594, 984 A.2d 1148 (2009),
cert. denied, 295 Conn. 904, 988 A.2d 879 (2010). We
conclude, however, that the relevant facts do not sug-
gest that the defendant was prejudiced by the allegedly
duplicitous information, and thus that his claim fails
under the third prong of Golding.
‘‘Duplicity occurs when two or more offenses are
charged in a single count of the accusatory instrument.’’
(Internal quotation marks omitted.) State v. Browne,
84 Conn. App. 351, 381, 854 A.2d 13, cert. denied, 271
Conn. 931, 859 A.2d 930 (2004); see also State v. Mar-
celino S., supra, 118 Conn. App. 594. ‘‘It is now generally
recognized that [a] single count is not duplicitous
merely because it contains several allegations that
could have been stated as separate offenses. . . .
Rather, such a count is only duplicitous where the pol-
icy considerations underlying the doctrine are impli-
cated. . . . These [considerations] include avoiding
the uncertainty of whether a general verdict of guilty
conceals a finding of guilty as to one crime and a finding
of not guilty as to another, avoiding the risk that the
jurors may not have been unanimous as to any one of
the crimes charged, assuring the defendant adequate
notice, providing the basis for appropriate sentencing,
and protecting against double jeopardy in a subsequent
prosecution.’’ (Internal quotation marks omitted.) State
v. Marcelino S., supra, 594–95.
The unanimity requirement mandates that the jury
agree on the factual basis of the charge. See, e.g., State
v. Benite, 6 Conn. App. 667, 675, 507 A.2d 478 (1986)
(‘‘[t]he determination of whether actions are conceptu-
ally distinct must be made with reference to the purpose
behind the proposed charge: to ensure that the jurors
are in unanimous agreement as to what conduct the
defendant committed’’). The defendant argues that the
state’s ‘‘unusual charging method’’ presents a concern
that the jury did not unanimously agree on the acts
or conduct underlying the conviction. The defendant
suggests that because the consolidated counts of the
substituted information were premised on separate and
distinct incidents, some jurors may have credited the
victim’s testimony as to one act, but not all, whereas
other jurors may have credited her testimony as to
other acts, thereby giving rise to concerns that the jury’s
verdict was not unanimous.
The state argues that this case turned on the victim’s
credibility, and that the defendant did not ‘‘present a
particularized challenge to any of the individual inci-
dents of sexual assault . . . .’’ Therefore, the state
argues, any risk that the jury considered the individual
acts constituting the crime and did not agree simply
does not arise. We agree with the state. The record
reflects that the question of the victim’s credibility was
front and center throughout the trial. The defendant
took particular aim at the victim’s testimony in closing
argument, where he repeatedly suggested that she was
not believable, and that she had manufactured her testi-
mony. The defendant implored the jury to consider the
question of his guilt, mindful that his fate ultimately
came down to the victim’s word: ‘‘She’s their case. You
have to believe her in order to convict him.’’
Moreover, the ‘‘three separate and factually distinct
incidents’’ that the defendant now claims on appeal
posed a great risk of a nonunanimous verdict were
highlighted in the defendant’s argument as parts of a
single course of conduct, as follows: ‘‘She wants you
to believe that this happened like clockwork, once a
year. Every year for three years, once a year he came
into her room in the middle of the night. Isn’t that odd?’’
And again, the defendant urged the jury to consider
that ‘‘she made three very specific allegations.’’
As the defendant argued to the jury, the state’s case
rested on the victim’s testimony. ‘‘[T]he primary deci-
sion for the jury was whether [the victim] should be
believed.’’ State v. Marcelino S., supra, 118 Conn. App.
597. He cannot now argue, convincingly, that the jury
reviewed his case and the evidence, and arrived at a
verdict without unanimously agreeing on the factual
basis for it. In a case such as this, the ‘‘spectre of lack
of unanimity cannot arise.’’ State v. Saraceno, 15 Conn.
App. 222, 230, 545 A.2d 1116, cert. denied, 209 Conn.
823, 824, 552 A.2d 431, 432 (1988).
We similarly reject the defendant’s contention that
the risk of a nonunanimous jury verdict is of ‘‘acute
concern’’ here because the jury delivered a mixed ver-
dict, finding the defendant guilty of risk of injury but
acquitting him of sexual assault. The record reflects
that the jury deliberated for three days, during which
it requested and heard playback testimony of Ann P.
and the victim. Moreover, the court’s charge detailed
the unanimity requirement, stating that ‘‘[e]ach count
alleges a separate crime’’ to be considered ‘‘separately
in deciding the guilt or nonguilt of the defendant.’’ The
court continued: ‘‘[I]f you find that the state has proven
beyond a reasonable doubt all of the elements of a
crime, then you must find the defendant guilty of that
crime. On the other hand, if you find that the state has
failed to prove beyond a reasonable doubt any one of
the elements of a crime, you must find the defendant
not guilty of that crime.’’ The court further cautioned
that ‘‘there is no principle of law for less than a unani-
mous verdict.’’ It is well settled that ‘‘[t]he jury is pre-
sumed, in the absence of a fair indication to the
contrary, to have followed the court’s instruction as to
the law.’’ (Internal quotation marks omitted.) State v.
Jennings, 216 Conn. 647, 664, 583 A.2d 915 (1990). The
record suggests that the jury considered the evidence
in an assiduous fashion guided by the court’s correct
instructions on the law. Accordingly, we decline to
impute nonunanimity to the jury’s verdict because it
chose, after careful deliberation, to acquit on the charge
of sexual assault.
‘‘[W]e are ever mindful that the defendant is entitled
to be protected against the danger that . . . he will be
convicted not on the basis of one unanimous verdict on
a single set of facts but under juror votes of conviction
which, depending on the particular member of the jury,
relate to entirely different [occasions] . . . .’’ (Internal
quotation marks omitted.) State v. Saraceno, supra, 15
Conn. App. 230. Here, however, there was no risk that
the jury’s verdict was not unanimous. The central ques-
tion for the jury was whether the victim should be
believed. The jury considered that question, at length,
against the backdrop of the defendant’s argument,
impugning the victim’s credibility, and imploring the
jurors to discredit her testimony as to all of the reported
incidents, not just some. We conclude, therefore, on
the basis of the evidence presented at trial and the
relevant facts, that the defendant was not prejudiced
as a result of the duplicitous substitute information.
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 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.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 53-21 has since been revised and the subsections
retitled.
2
Although Ann P. was title owner of the vehicle, the parties stipulated
that the defendant regularly drove the car. We therefore refer to it as his
vehicle in this opinion.
3
The state initially charged the defendant in a fifteen count information
with several different charges that were based on his alleged conduct in
the three reported incidents. Each count was based specifically on one of
the three incidents, which was identified in the count by the year of its
alleged occurrence.
4
Defense counsel represented to the court that they were ‘‘proceed[ing]
expecting that’s the evidence.’’
5
Again we note that the undisputed facts show that the clothing was in
the possession of Ann P. for more than four years before it was transferred
to the police. The record is devoid of any facts suggesting that the defendant
made any attempt to seek the clothing out or reclaim the clothing during
that time.
6
The defendant’s motion also sought to preclude evidence of the unnamed
adult fetish magazine discovered in the vehicle. There was no testimony or
evidence pertaining to the adult fetish magazine presented at the hearing
on the defendant’s motion. When, however, the state represented to the
trial court that it would not offer the adult fetish magazine in evidence, the
trial court granted the defendant’s motion to preclude it from evidence on
that basis.
7
The court did not examine the contents of the magazines personally in
making this determination, but relied instead on the testimony of Gibeau,
the expert witness. Defense counsel also requested that the court articulate
whether it considered Gibeau’s testimony in deciding that the magazine was
probative of the defendant’s interest in young girls. The state objected on
the ground that the court had set forth its reasons for admitting the evidence
in its ruling, and the court declined to articulate further.
8
There was no request for a limiting instruction to the jury.
9
By way of example, Gibeau testified to one particular profile in the
magazine advertising that the young woman ‘‘still wet the bed . . . .’’
10
The state argues that the defendant waived this claim. Specifically, the
state argues that the defendant expressly stated to the court, ‘‘I don’t think
it’s uncharged misconduct [evidence], and I wouldn’t want to spend three
pages arguing about that . . . .’’ Pursuant to our review of the record,
defense counsel consistently maintained that the evidence was inadmissible
under either §§ 4-4 or 4-5 of the Connecticut Code of Evidence and, accord-
ingly, his claim is preserved.
11
Because we uphold the trial court’s ruling, we have no occasion to
consider the defendant’s further claim that the admission of the magazine
was so prejudicial that it deprived him of a fair trial.
12
The state argues that the defendant cannot invoke Golding review
because he waived his claim by failing to seek a bill of particulars. The state
directs our attention to State v. Bazemore, 107 Conn. App. 441, 454–55, 945
A.2d 987, cert. denied, 287 Conn. 923, 951 A.2d 573 (2008), in which we
concluded that the defendant, who claimed he was deprived of his constitu-
tional right to fair notice of the charges against him, waived his claim by
failing to request a bill of particulars. Pursuant to our finding waiver, we
concluded that we would not entertain the defendant’s claim on appeal
under Golding. The state acknowledges, however, that in State v. Marcelino
S., 118 Conn. App. 589, 594, 984 A.2d 1148 (2009), cert. denied, 295 Conn.
904, 988 A.2d 879 (2010), we applied Golding review to the defendant’s
unpreserved claim that the duplicitous information deprived him of his
constitutional right to a unanimous jury verdict. We are bound by our deci-
sion in Marcelino S., and therefore, we apply Golding to the defendant’s
unanimity claim here.