State v. Anthony L.

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STATE OF CONNECTICUT v. ANTHONY L.*
(AC 39200)
DiPentima, C. J., and Sheldon and Norcott, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree, risk of injury
to a child and sexual assault in the third degree in connection with his
alleged sexual abuse of the minor complainant, J, the defendant appealed
to this court. He claimed, inter alia, that the trial court improperly
admitted certain evidence of his alleged uncharged, prior sexual miscon-
duct involving J, which occurred prior to the time period during which
the charged crimes allegedly occurred. He also claimed that the evidence
was insufficient to support his conviction because J’s testimony as to
the charged misconduct lacked sufficient specificity to prove beyond a
reasonable doubt the elements of the charged offenses. Held:
1. The evidence was sufficient to support the defendant’s conviction of
sexual assault in the first degree and risk of injury to a child: J described
the charged misconduct with sufficient specificity to permit the jury
reasonably to determine that the unlawful conduct engaged in by the
defendant was digital penetration, and she testified that those acts of
digital penetration within the charged time period were forceful and
occurred more than once, which was sufficient for the jury reasonably
to conclude that the state had proven the elements of sexual assault in
the first degree and risk of injury to a child beyond a reasonable doubt;
moreover, because it was undisputed that the defendant was J’s uncle,
the evidence was also sufficient to support the defendant’s conviction
of sexual assault in the third degree, which proscribes sexual intercourse
with persons related to the defendant within certain degrees of kindred
specified by statute (§ 46b-21), and J was not required to recall specific
dates or additional distinguishing features of each incident, it having
been sufficient that she provided a general time period.
2. The trial court did not abuse its discretion in permitting the state to
introduce certain uncharged, prior sexual misconduct evidence involv-
ing the defendant, which was admitted to prove the defendant’s motive
and intent to sexually abuse J: where, as here, the prior misconduct
evidence involved J, was of the same nature as the misconduct with
which the defendant was charged, and concerned conduct that occurred
before and during the period of time in which the charged crimes alleg-
edly occurred, the materiality of the prior misconduct evidence to prove
motive and intent was readily apparent, as it allowed the jury to learn
that the defendant had a sexual interest in, and lustful inclinations
toward, J; moreover, the challenged evidence was not more prejudicial
than probative, as J testified that the acts of abuse during the time
period in which the charged crimes occurred were the same as those
she suffered before the time period at issue, and, thus, it was unlikely
that the uncharged prior misconduct evidence unduly inflamed the jury,
and the court gave the jury three cautionary instructions, which the jury
was presumed to have followed, that served to overcome the prejudice
that attends evidence of uncharged sexual misconduct.
Argued October 16, 2017—officially released February 6, 2018
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree, risk of
injury to a child and sexual assault in the third degree,
brought to the Superior Court in the judicial district of
Tolland, geographical area number nineteen, where the
court, Graham, J., denied the defendant’s motion to
preclude certain evidence; thereafter, the matter was
tried to the jury; verdict and judgment of guilty, from
which the defendant appealed to this court. Affirmed.
Stephen A. Lebedevitch, assigned counsel, for the
appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Elizabeth C. Leaming, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
NORCOTT, J. The defendant, Anthony L., was con-
victed, after a jury trial, of one count of sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (1), one count of risk of injury to a child in
violation of General Statutes § 53-21 (a) (2), and one
count of sexual assault in the third degree in violation
of General Statutes § 53a-72a (a) (2). On appeal, the
defendant claims that (1) the trial court abused its direc-
tion in admitting evidence of uncharged misconduct
and (2) there was insufficient evidence to support his
conviction on all three charges. We disagree, and,
accordingly, affirm the judgment of the trial court.
The jury was presented with the following evidence
on which to base its verdict. The crimes with which
the defendant was charged allegedly occurred between
May 23, 2002, and December 31, 2003. At all relevant
times, the minor complainant, along with her brother,
P, and her parents resided in Massachusetts. The com-
plainant’s father was terminally ill. To prevent the com-
plainant and her brother from seeing their father in this
condition, their mother arranged for them to spend
weekends and other holidays with their paternal uncle,
the defendant, who lived in Connecticut. Sometimes,
the defendant would pick up the children at their home
in Massachusetts. At other times, he would meet their
mother midway at a designated point. One day, while
the complainant and the defendant were traveling in
the defendant’s car, and the complainant was sitting in
the passenger seat, the defendant reached under the
complainant’s shirt and commented that ‘‘[she] was
developing nicely.’’ The complainant was either ten or
eleven years old at this time.
In a subsequent visit to the defendant’s house, the
complainant asked the defendant if they could rent
and watch a movie called ‘‘American Pie’’ because the
complainant’s mother previously had forbidden her
from watching it; the defendant agreed. After renting
the movie, the defendant and the complainant were
driving back to the defendant’s house when the defen-
dant told the complainant that ‘‘he felt [she] needed an
explanation as to body parts and whatnot so that way
[she] could have a better understanding of the movie.’’
The defendant then proceeded to put his hand ‘‘down
[the complainant’s] pants and put his fingers inside of
[her],’’ and commented, ‘‘this is your cherry,’’ and that
‘‘that was the start of intercourse’’ and ‘‘something [the
complainant] needed to know so [she] understood the
movie because the movie was about sex.’’ The defen-
dant then kept his fingers inside the complainant’s
vagina for the duration of the car ride to the defendant’s
house. Once there, the complainant and the defendant
started watching the movie, with the complainant lying
on a couch and the defendant sitting at the other end
of the same couch. The defendant then ran his hand
up the complainant’s leg and digitally penetrated her
vagina. The defendant repeated this abuse after the
complainant went to bed that night and again on the
car ride back to the complainant’s mother’s house.
These acts occurred before May, 2002, when the com-
plainant was ten or eleven years old.
After that weekend, the defendant routinely would
sexually abuse the complainant. The acts remained the
same, i.e., digital penetration, and they would occur
during car rides and when the complainant slept at the
defendant’s house. While there, the complainant and P
would sleep in two separate bedrooms on the second
floor. The bedroom where the complainant typically
slept had a door that could not be locked. Here, after
the complainant would fall asleep, the defendant would
enter the bedroom and digitally penetrate her vagina.
Afterward, he would sometimes whisper, ‘‘[y]ou’re wel-
come,’’ or, ‘‘I’m sorry, I can’t help myself.’’
The defendant continued to sexually abuse the com-
plainant after the death of her father in January, 2002,
following which her visits to the defendant’s house
became less frequent. The final act of sexual abuse
occurred in the complainant’s home in Massachusetts,
in December, 2003. There, the defendant digitally pene-
trated the complainant’s vagina while sharing a blanket
with her on a couch. The complainant was fifteen at
the time of this last act. On December 4, 2013, the
complainant reported her sexual abuse by the defen-
dant to the Connecticut State Police. The defendant
thereafter was arrested and charged with one count of
sexual assault in the first degree, one count of risk of
injury to a child, and one count of sexual assault in the
third degree.
Before trial commenced, the defendant filed a motion
in limine to establish fair procedures regarding the
admissibility of evidence of uncharged misconduct. At
the hearing on his motion in limine, the defendant
sought to exclude evidence of acts of sexual abuse
committed prior to May 23, 2002, which were not
charged in the information.1 The defendant also sought
to exclude evidence of the acts committed in the com-
plainant’s home in Massachusetts, as they were outside
the jurisdictional limits of Connecticut. After hearing
argument, the trial court ruled that it would admit evi-
dence of both sets of uncharged misconduct to prove
motive and intent. Subsequently, the court gave the jury
a cautionary instruction after the complainant testified
as to uncharged misconduct that occurred prior to May
23, 2002.2 The court gave another cautionary instruction
after the complainant testified as to uncharged miscon-
duct that occurred outside Connecticut.3 Finally, the
court gave a cautionary instruction as to both sets of
uncharged misconduct evidence during its final charge.
Following trial, the jury returned a verdict of guilty on
all three counts; this appeal followed. Additional facts
will be set forth as necessary.
I
The defendant claims that there was insufficient evi-
dence to support his conviction of one count of sexual
assault in the first degree in violation of § 53a-70 (a)
(1), one count of risk of injury to a child in violation
of § 53-21 (a) (2), and one count of sexual assault in
the third degree in violation of § 53a-72a (a) (2).4 He
argues that although the complainant testified in some
detail as to the uncharged misconduct, her testimony
as to the charged misconduct lacked sufficient specific-
ity to prove the elements of any of the charged offenses
beyond a reasonable doubt. Specifically, relying on our
Supreme Court’s decision in State v. Stephen J. R., 309
Conn. 586, 72 A.3d 379 (2013), the defendant contends
that the complainant needed to testify to at least one
specific instance of sexual misconduct and provide a
specific time period between May, 2002, and December,
2003, when the charged misconduct occurred. We
disagree.
‘‘The standard of review for claims of evidentiary
insufficiency is well established. In reviewing a suffi-
ciency of the evidence claim, we apply a two part test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [jury] reasonably could
have concluded that the cumulative force of the evi-
dence established guilt beyond a reasonable doubt.
. . . This court cannot substitute its own judgment for
that of the [jury] if there is sufficient evidence to support
[its] verdict. . . . In applying that test, we do not ask
whether there is a reasonable view of the evidence that
would support a reasonable hypothesis of innocence.
We ask, instead, whether there is a reasonable view of
the evidence that supports the [jury’s] verdict of guilty.’’
(Citation omitted; internal quotation marks omitted.)
State v. Carrillo Palencia, 162 Conn. App. 569, 575–76,
132 A.3d 1097, cert. denied, 320 Conn. 927, 133 A.3d
459 (2016).
‘‘While the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, each of the basic
and inferred facts underlying those conclusions need
not be proved beyond a reasonable doubt. . . . If it is
reasonable and logical for the jury to conclude that a
basic fact or an inferred fact is true, the jury is permitted
to consider the fact proven and may consider it in com-
bination with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) State v. Stephen J. R., supra, 309 Conn. 593–94.
Section 53a-70 (a) provides that ‘‘[a] person is guilty
of sexual assault in the first degree when such person
(1) compels another person to engage in sexual inter-
course by the use of force against such other person
. . . or by the threat of use of force against such other
person . . . which reasonably causes such person to
fear physical injury to such person . . . .’’ ‘‘‘Sexual
intercourse’ means vaginal intercourse. . . . Penetra-
tion, however slight, is sufficient to complete vaginal
intercourse . . . and does not require emission of
semen. Penetration may be committed by an object
manipulated by the actor into the genital or anal opening
of the victim’s body.’’ General Statutes § 53a-65 (2).
‘‘[D]igital penetration, however slight, of the genital
opening, is sufficient to constitute vaginal intercourse.’’
(Emphasis omitted.) State v. Albert, 252 Conn. 795, 806–
807, 750 A.2d 1037 (2000); see also State v. Antonio A.,
90 Conn. App. 286, 295, 878 A.2d 358 (digital penetration
constitutes sexual intercourse by object manipulated
by actor), cert. denied, 275 Conn. 926, 883 A.2d 1246
(2005), cert. denied, 546 U.S. 1189, 126 S. Ct. 1373, 164
L. Ed. 2d 81 (2006); State v. Grant, 33 Conn. App. 133,
141, 634 A.2d 1181 (1993) (same). Section 53-21 (a)
provides that ‘‘[a]ny person who (2) has contact with
the intimate parts, as defined in section 53a-65, of a
child under the age of sixteen years or subjects a child
under sixteen years of age to contact with the intimate
parts of such person, in a sexual and indecent manner
likely to impair the health or morals of such child . . .
shall be guilty of . . . a class B felony . . . .’’ Section
53a-65 (8) provides that ‘‘ ‘[i]ntimate parts’ means the
genital area or any substance emitted therefrom, groin,
anus or any substance emitted therefrom, inner thighs,
buttocks or breasts.’’ Section 53a-72a (a) provides in
relevant part that ‘‘[a] person is guilty of sexual assault
in the third degree when such person (2) engages in
sexual intercourse with another person whom the actor
knows to be related to him or her within any of the
degrees of kindred specified in section 46b-21.’’5
In State v. Stephen J. R., supra, 309 Conn. 586, our
Supreme Court relied on an opinion of the California
Supreme Court, People v. Jones, 51 Cal. 3d 294, 792
P.2d 643, 270 Cal. Rptr. 611 (1990), which delineated a
three factor approach for determining whether generic
testimony about sexual abuse can amount to sufficient
evidence in a child abuse case. These factors were: (1)
the complainant must describe the kind of act or acts
committed with sufficient specificity to determine that
unlawful conduct has occurred and to differentiate
between the different types of proscribed conduct; (2)
the complainant must describe the number of acts com-
mitted with sufficient certainty to support each of the
counts alleged; and (3) the complainant must identify
the general time period within which these acts
occurred. People v. Jones, supra, 316. In Stephen J. R.,
our Supreme Court applied the Jones factors. The court
concluded that the complainant, by testifying that the
defendant had made her put his penis in her mouth and
that he had put his tongue in her vagina, described the
acts of fellatio and cunnilingus with sufficient specific-
ity to support each of the counts alleged for sexual
assault in the first degree and risk of injury to a child.
State v. Stephen J. R., supra, 594, 599.
In the present case, the complainant, while testifying,
first described the acts of abuse she suffered prior to
May, 2002, and stated that on multiple occasions the
defendant penetrated her vagina with his fingers. The
complainant was then questioned as to the nature and
frequency of the defendant’s misconduct between May,
2002, and December, 2003, the period in connection
with which the defendant is charged. With respect to
that particular time frame, she testified that the defen-
dant’s ‘‘acts were all the same.’’ Subsequently, the fol-
lowing exchange occurred between the prosecutor and
the complainant:
‘‘[The Prosecutor]: Between May of 2002, specifically,
the end of May of 2002 and December of 2003, when
you described [the defendant] visiting your home in
. . . Massachusetts, during that time frame did [the
defendant] penetrate your vagina with his finger while
at his home in [Connecticut].
‘‘[The Complainant]: Yes.
‘‘[The Prosecutor]: Can you tell us approximately how
many times? Let me ask you this: Was it more than
one time?
‘‘[The Complainant]: Yes.
‘‘[The Prosecutor]: Was it forceful or consensual?
‘‘[The Complainant]: It was always forceful, never
consensual.
‘‘[The Prosecutor]: And were you between thirteen
and fifteen years of age at that time?
‘‘[The Complainant]: Yes.’’
As our Supreme Court concluded in Stephen J. R.,
we conclude that the complainant in this case described
the charged misconduct with sufficient specificity for
the jury to determine that the unlawful conduct engaged
in by the defendant was digital penetration. For the
purposes of §§ 53a-70 (a) (1) and 53a-72a (a) (2), digital
penetration constitutes sexual intercourse. See General
Statutes § 53a-65 (2) (penetration may be committed
by object); see also State v. Antonio A., supra, 90 Conn.
App. 295 (digital penetration constitutes sexual inter-
course). The complainant testified that these acts of
digital penetration within the charged period were
forceful and that the defendant digitally penetrated her
vagina more than once. This testimony was sufficient
for the jury reasonably to conclude that the state had
proven the elements of one count of sexual assault in
the first degree and one count of risk of injury to a
child, beyond a reasonable doubt. Further, it is undis-
puted that the defendant is the complainant’s paternal
uncle. The evidence therefore was also sufficient for the
defendant’s conviction of one count of sexual assault
in the third degree.
The defendant also argues that the complainant did
not identify a specific time period between May, 2002,
and December, 2003, in which the acts in question
occurred. In Stephen J. R., our Supreme Court noted
that the requirement as to a time period was met
because if the complainant provided a general time
period. State v. Stephen J. R., supra, 309 Conn. 600–601.
The complainant in Stephen J. R. was not required to
‘‘recall specific dates or additional distinguishing fea-
tures of each incident . . . .’’ Id., 601. The court clari-
fied that additional details, aside from the general time
period, might be relevant in assessing the credibility of
the complainant’s testimony but would not be essential
for a conviction. Id. In the words of the California
Supreme Court in Jones, ‘‘[d]oes the [complainant]’s
failure to specify precise date, time, place or circum-
stance render generic testimony insufficient? Clearly
not. As many of the cases make clear, the particular
details surrounding a child molestation charge are not
elements of the offense and are unnecessary to sustain
a conviction.’’ People v. Jones, supra, 51 Cal. 3d 315.
Consistent with our Supreme Court’s opinion in Ste-
phen J. R., we find that the complainant testified with
sufficient specificity for the jury reasonably to find the
defendant guilty of all three charged offenses beyond
a reasonable doubt.
II
The defendant next claims that the trial court abused
its discretion by admitting evidence of uncharged mis-
conduct because the evidence was more prejudicial
than probative. He argues that the complainant testified
in great detail as to the defendant’s uncharged sexual
misconduct that allegedly occurred prior to the period
at issue in this case, i.e., May 23, 2002 to December 31,
2003, and as to the uncharged misconduct that allegedly
occurred at the complainant’s home in Massachusetts.
The defendant argues that the complainant’s testimony
regarding sexual assaults that allegedly occurred within
the period charged in the information, by comparison,
was bereft of detail, and therefore that the only direct
evidence of his guilt was the uncharged misconduct,
which should have been excluded because it was more
prejudicial than probative.6 The state argues that the
court did not abuse its discretion in admitting the chal-
lenged evidence to prove the defendant’s motive and
intent or in ruling that the probative value of such evi-
dence outweighed its prejudicial effect. We agree with
the state.
‘‘As a general rule, evidence of prior misconduct is
inadmissible to prove that a criminal defendant is guilty
of the crime of which the defendant is accused. . . .
On the other hand, evidence of crimes so connected
with the principal crime by circumstance, motive,
design, or innate peculiarity, that the commission of
the collateral crime tends directly to prove the commis-
sion of the principal crime, is admissible. The rules of
policy have no application whatever to evidence of any
crime which directly tends to prove that the accused
is guilty of the specific offense for which he is on trial.
. . . [Our Supreme Court has] developed a two part
test to determine the admissibility of such evidence.
First, the evidence must be relevant and material to at
least one of the circumstances encompassed by the
exceptions [set forth in § 4-5 (b) of the Connecticut
Code of Evidence, now § 4-5 (c)].7 . . . Second, the
probative value of the evidence must outweigh its preju-
dicial effect. . . . Because of the difficulties inherent
in this balancing process, the trial court’s decision will
be reversed only whe[n] abuse of discretion is manifest
or whe[n] an injustice appears to have been done. . . .
On review by this court, therefore, every reasonable
presumption should be given in favor of the trial court’s
ruling.’’ (Footnote added; internal quotation marks
omitted.) State v. Donald H. G., 148 Conn. App. 398,
405, 84 A.3d 1216, cert. denied, 311 Conn. 951, 111 A.3d
881 (2014).
‘‘In determining whether there has been an abuse of
discretion, the ultimate issue is whether the court could
reasonably conclude as it did.’’ (Internal quotation
marks omitted.) State v. Franko, 142 Conn. App. 451,
460, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d
30 (2013). ‘‘[T]he burden to prove the harmfulness of
an improper evidentiary ruling is borne by the defendant
. . . [who] must show that it is more probable than
not that the erroneous action of the court affected the
result.’’ (Internal quotation marks omitted.) State v.
Donald H. G., supra, 148 Conn. App. 407.
The challenged evidence in this case was admitted
to prove that the defendant had the motive and intent
to sexually abuse the complainant. The evidence
allowed the jury to learn that the defendant had a sexual
interest in the complainant, upon which the defendant
acted by sexually abusing the complainant before and
during the charged period, and by continuing to do so
until the last act of abuse in Massachusetts. ‘‘When
instances of a criminal defendant’s prior misconduct
involve the same [complainant] as the crimes for which
the defendant presently is being tried, those acts are
especially illuminative of the defendant’s motivation
and attitude toward that [complainant], and, thus, of his
intent as to the incident in question.’’ (Internal quotation
marks omitted.) State v. Gonzalez, 167 Conn. App. 298,
310, 142 A.3d 1227, cert. denied, 323 Conn. 929, 149
A.3d 500 (2016). The materiality of the defendant’s prior
misconduct to prove motive and intent in this case is
therefore readily apparent. The act of abuse in Massa-
chusetts is also material to prove motive and intent for
the same reasons. The fact that it occurred after the
charged misconduct does not render it inadmissible.
See State v. Bunker, 89 Conn. App. 605, 632, 874 A.2d
301 (2005) (‘‘[i]n Connecticut, as in almost all other
jurisdictions, [e]vidence of crimes subsequent to the
crime charged [is] also admissible for the same pur-
poses as those committed prior to the charge’’ [internal
quotation marks omitted]), appeal dismissed, 280 Conn.
512, 909 A.2d 521 (2006); see also State v. McFarlane,
88 Conn. App. 161, 165, 868 A.2d 130 (subsequent bur-
glaries admissible to prove intent because sufficiently
similar even though they occurred at malls rather than
freestanding businesses), cert. denied, 273 Conn. 931,
873 A.2d 999 (2005). Because the misconduct in Massa-
chusetts involved the same complainant and was of the
same nature as the misconduct charged, it was material
to prove the defendant’s lustful inclinations toward
the complainant.
We turn to the question of whether the challenged
evidence was more probative than prejudicial. As a
factual matter, we disagree with the defendant that the
evidence of the charged conduct lacked specific details.
After the complainant described the acts of abuse she
suffered prior to May, 2002, she was questioned specifi-
cally as to the nature and frequency of the acts between
May, 2002, and December, 2003, when the abuse ended.
She testified that during this time, the defendant’s acts
toward her were ‘‘the same’’ as they had been before,
all involving forcible digital penetration of her vagina,
that they occurred on multiple occasions, and that they
took place ‘‘in [the defendant’s] car, on the couch, in
the bedroom . . . .’’ The complainant further testified
that on each such occasion, she would attempt to use
her body to protect herself from the defendant by
‘‘clench[ing] [her] body,’’ but that she never was suc-
cessful in stopping him. This testimony does not lack
detail in comparison to the testimony pertaining to the
defendant’s uncharged sexual misconduct in the car
after renting the ‘‘American Pie’’ movie, while watching
the movie itself, or at the complainant’s house in Massa-
chusetts. It is therefore unlikely, contrary to the defen-
dant’s claim, that evidence of the uncharged
misconduct unduly inflamed the jury. ‘‘Although evi-
dence of child sex abuse is undoubtedly harmful to the
defendant, that is not the test of whether evidence is
unduly prejudicial. Rather, evidence is excluded as
unduly prejudicial when it tends to have some adverse
effect upon a defendant beyond tending to prove the fact
or issue that justified its admission into evidence.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Donald H. G., supra, 148 Conn. App.
408–409.
In light of these circumstances, we cannot conclude
that the trial court abused its discretion in admitting
the challenged evidence. The court held a hearing and
heard argument on whether the evidence should be
excluded. It then analyzed the arguments in light of this
court’s decision in Donald H. G. and decided in favor
of admission. Thereafter, the court gave the jury three
separate cautionary instructions, twice upon the intro-
duction of particular portions of the challenged evi-
dence and once more during its final charge. This
methodical approach negates the defendant’s claim that
the court abused its discretion by admitting the chal-
lenged evidence. The limiting instructions, which the
jury presumably followed, also served, in this case, to
overcome the prejudice that attends evidence of
uncharged sexual misconduct. See State v. Franko,
supra, 142 Conn. App. 467–68. Accordingly, we con-
clude that the trial court did not err in admitting evi-
dence of the defendant’s uncharged misconduct.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of
complainants who allege that they are the victims of sexual assault and the
crime of risk of injury to a child, we decline to use the defendant’s full
name or to identify the complainant or others through whom the complain-
ant’s identity may be ascertained. See General Statutes § 54-86e.
1
Previously, complainants of sexual abuse could prosecute their claims
until only two years after attaining the age of majority. Effective May 23,
2002, however, they may do so until the age of forty-eight. See General
Statutes § 54-193a. The acts of sexual abuse in this case that occurred prior
to May 23, 2002, were therefore outside of the statute and not charged in
the information.
2
The court gave the following instruction: ‘‘[L]adies and gentlemen, I’m
going to give what we call a cautionary instruction to you. You have heard
testimony from [the complainant] that the defendant placed his fingers
within her vagina and on one occasion touched her on dates before the
date set forth in the information. That evidence is being admitted solely to
show or establish his motive or purpose in committing the acts alleged
in the information. That conduct that—preceding the dates alleged in the
information, is not the subject of any criminal charge in this case and is
not being admitted to prove the bad character of the defendant or any
propensity by him to commit the conduct described in the information or
charged in the information. You may not consider that evidence as establish-
ing a predisposition on the part of the defendant to commit any of the
crimes charge[d] or to demonstrate a criminal propensity to commit the
crimes charged.’’
3
The court gave the following instruction: ‘‘Ladies and gentlemen, you
recall I gave an instruction a moment ago about any testimony by this
witness as to the defendant touching her prior to the dates charged in the
information. The information makes reference only to acts in . . . Connecti-
cut. So, you just heard testimony from [the complainant] that the defendant
placed his fingers inside her vagina in Massachusetts. That evidence is being
admitted solely to show or establish his motive or intent in committing the
crimes alleged in the information. That conduct is not the subject of any
criminal charge in this case and is not being admitted to prove the bad
character of the defendant or any propensity by him to commit the crimes
alleged in the information. You may not consider that evidence as establish[-
ing] a predisposition on the part of the defendant to commit any of the
crimes alleged or to demonstrate a criminal propensity to commit the
crimes alleged.’’
4
Although this is the second claim in the defendant’s appellate brief, we
address it first, because ‘‘if a defendant prevails on such a claim, the proper
remedy is to direct a judgment of acquittal.’’ State v. Ramos, 178 Conn. App.
400, 404, A.3d (2017).
5
Such degrees of kinship include a ‘‘person’s parent, grandparent, child,
grandchild, sibling, parent’s sibling, sibling’s child, stepparent or stepchild.
Any marriage within these degrees is void.’’ General Statutes § 46b-21.
6
The state argues that the defendant did not preserve his claim that the
uncharged misconduct was the most direct evidence of his guilt because
at trial, the defendant objected to that evidence only on the ground that
it was more prejudicial than probative. We review the defendant’s claim,
however, as we understand it to be that the challenged evidence is more
prejudicial than probative in part because it was the most direct evidence.
We note additionally, that although the challenged evidence was admitted
to prove motive or intent with a cautionary instruction against its use for
propensity, evidence of other sexual misconduct is now admissible to prove
propensity for aberrant and compulsive sexual behavior under § 4-5 (b) of
the Connecticut Code of Evidence. See State v. DeJesus, 288 Conn. 418, 953
A.2d 45 (2008).
7
Section 4-5 (c) (previously Section 4-5 [b]) of the Connecticut Code of
Evidence provides: ‘‘Evidence of other crimes, wrongs or acts of a person
is admissible for purposes other than those specified in subsection (a), such
as to prove intent, identity, malice, motive, common plan or scheme, absence
of mistake or accident, knowledge, a system of criminal activity, or an
element of the crime, or to corroborate crucial prosecution testimony.’’