State v. Bobe

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STATE OF CONNECTICUT v. ANIBAL BOBE
(AC 39781)
Alvord, Bright and Sullivan, Js.
Syllabus
Convicted of the crime of sexual assault in the second degree and two
counts of the crime of risk of injury to a child, the defendant appealed
to this court. The defendant’s conviction stemmed from his alleged
sexual abuse of the minor victim, who had resided for a short period
of time in the defendant’s apartment with his siblings and his mother.
At trial, over the defendant’s objection, the victim testified regarding
what his mother had told him the defendant said about why the family
was asked to move out of the apartment. On appeal, the defendant
claimed that the trial court improperly admitted his alleged out-of-court
statement to the victim’s mother through the testimony of the victim.
Held that the defendant failed to demonstrate that any claimed error in
the admission of the challenged statement was harmful, he having failed
to demonstrate that the jury’s verdict was substantially swayed by the
claimed error: the state’s case against the defendant was strong in that
the jury heard a detailed description of the defendant’s conduct from
the victim, whose testimony was corroborated by his stepbrother’s con-
stancy of accusation testimony, the challenged testimony consisted of
one question and one short answer, and the prosecutor referred to the
challenged statement only once in her closing argument and did not
use the statement for its truth or to disparage the defendant; moreover,
to the extent that the challenged statement had any impact on the jury,
it was inconsistent with the testimony of another witness regarding the
reason that the victim’s family had to leave the apartment and, therefore,
would have undermined, rather than bolstered, the victim’s credibility.
Argued November 28, 2017—officially released February 27, 2018
Procedural History
Substitute information charging the defendant with
the crime of sexual assault in the second degree and
two counts of the crime of risk of injury to a child,
brought to the Superior Court in the judicial district of
Fairfield and tried to the jury before the court, Kahn,
J.; verdict and judgment of guilty, from which the defen-
dant appealed to this court. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were John C. Smriga, state’s attorney, and
Ann P. Lawlor, senior assistant state’s attorney, for the
appellee (state).
Opinion
SULLIVAN, J. The defendant, Anibal Bobe, appeals
from the judgment of conviction, rendered after a jury
trial, of sexual assault in the second degree in violation
of General Statutes § 53a-71 (a) (1), and of injury to a
child in violation of General Statutes § 53-21 (a) (1),
and risk of injury to a child in violation of § 53-21 (a)
(2). On appeal, the defendant claims that the trial court
improperly admitted into evidence hearsay and double
hearsay through the testimony of the victim.1 We con-
clude that any claimed error was harmless and, accord-
ingly, affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
In July, 2012, the male victim, then fourteen years old,
and his family were homeless. The victim’s mother was
acquainted with the defendant, who allowed them to
live in his one bedroom apartment with him. The defen-
dant helped his landlord with building maintenance and
had access to the building’s attic and vacant apartments
in the building that required work. The defendant asked
the victim’s mother if the victim could help him paint
a neighboring vacant apartment. That apartment had
painting mats down on the floor. The defendant pro-
vided the victim with a brown bottle of liquor that the
victim described as ‘‘[tasting] horrible.’’2 The defendant
and the victim took off each other’s clothes. The victim
put his mouth on the defendant’s penis and performed
oral sex until the defendant ejaculated on the floor, and
the defendant did the same to the victim.
On another occasion, the defendant invited the victim
to come up to the attic, where there was a bed, to have
‘‘sweaty sex.’’ The victim went into the attic with the
defendant, and they took off each other’s clothes and
performed oral sex on each other. The defendant ‘‘put
the tip of his [penis] in [the victim’s anus], but it didn’t
go all the way in because [the victim] . . . clenched
up . . . and . . . [pushed] away because it . . .
[hurt].’’ Another time in the vacant apartment, the defen-
dant asked the victim to ‘‘turn over so that he [could]
stick it in.’’ The victim did not want to engage in anal
sex, but the defendant told him that ‘‘[it was] ok’’ and
fully penetrated the victim’s anus. The victim described
it as a ‘‘painful,’’ ‘‘awful feeling.’’ The victim stated that
when the defendant finished it felt like the defendant
had ‘‘[ejaculated] inside [of him].’’ The defendant never
used a condom during any of the assaults. Afterward,
the victim went to the bathroom and saw blood in
his underwear. The victim told the defendant, but the
defendant ‘‘tried to deny it and say that . . . it wasn’t
blood.’’ The victim was scared, and he threw away the
bloody underwear.
The victim engaged in oral sex with the defendant
approximately two other times, and the defendant
attempted to engage in anal sex with the victim on one
other occasion. The defendant told the victim multiple
times ‘‘not to tell anyone because [they] would both
get in trouble.’’ Initially, the victim did not tell anyone
about the assaults because he ‘‘was scared and . . .
[did not] know what was going to happen’’ or ‘‘what
anybody would think.’’ The victim was ‘‘very con-
cerned’’ about whether his family would be able to stay
in the defendant’s apartment. Later that month, the
landlord discovered that the victim’s family was living
in the defendant’s apartment and asked them to leave.
In the spring of 2013, the victim told his stepbrother
the defendant’s name and ‘‘exactly what happened from
the beginning . . . to the end.’’ The victim then told his
father and stepmother, who contacted the Bridgeport
Police Department.
The state subsequently charged the defendant with
sexual assault in the second degree, and two counts of
risk of injury to a child. A three day jury trial com-
menced on July 6, 2016, at which the victim testified.
The victim’s testimony was corroborated by his step-
brother’s constancy of accusation testimony. During the
state’s direct examination of the victim, the following
exchange occurred:
‘‘[The Prosecutor]: [W]ith respect to your birthday
and the time you moved out of [the defendant’s] apart-
ment, can you tell us about that?
‘‘[The Victim]: He kicked us out a few days before
my birthday. And my mom told me the reason he kicked
us out—
‘‘[Defense Counsel]: Objection. It’s hearsay.
‘‘The Court: Sustained as to hearsay. You can tell
us—I’ll permit—well, actually I’m going to overrule the
objection because it’s the defendant’s statement. So it’s
a statement against penal interest. So under that. . . .
[Y]ou may—you may say what the defendant told you
or told your mom.
‘‘And it’s not to be admitted for the truth of the matter
asserted. So to the extent it’s double hearsay, I’ll over-
rule it on that basis. I’m sorry. The question is what the
defendant told [the victim’s] mother why he was—why
they were being kicked out. . . .
‘‘[The Prosecutor]: Yes.
‘‘The Court: Ok. . . . I’ll permit that.
‘‘[The Prosecutor]: What, if anything, did [the defen-
dant] tell your mother or you about why you were
getting kicked out?
‘‘[The Victim]: [The defendant] told my mom we were
getting kicked out because he wanted to jerk off in
peace.’’
On July 8, 2016, the jury returned a verdict of guilty
as to all charges and, thereafter, the defendant was
convicted and sentenced to a total effective sentence of
thirty-five years of incarceration, execution suspended
after seventeen years, followed by thirty years of proba-
tion. This appeal followed.
On appeal, the defendant generally argues that the
trial court improperly admitted hearsay and double
hearsay evidence by permitting the victim to testify
about what his mother told him the defendant said.
The state argues that because the testimony was not
admitted for the truth of the matter asserted, it was
properly admitted as nonhearsay. The state further
argues that the defendant’s claim is not preserved
because once his hearsay objection was overruled, he
did not object to the testimony on any other basis.
We conclude that, even assuming, arguendo, that the
admission of the testimony was improper, it was not
harmful because the evidence did not substantially
affect the verdict in this case.
We turn to the standard of review and legal principles
that guide our review of the defendant’s claim. ‘‘[T]o the
extent that we assume impropriety in the trial court’s
evidentiary [rulings], [w]hen an improper evidentiary
ruling is not constitutional in nature, the defendant
bears the burden of demonstrating that the error was
harmful. . . . [W]hether [the improper admission of a
witness’ testimony] is harm[ful] in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . [T]he proper standard for determining
whether an erroneous evidentiary ruling is harm[ful]
should be whether the jury’s verdict was substantially
swayed by the error.’’ (Internal quotation marks omit-
ted.) State v. Paul B., 315 Conn. 19, 30–31, 105 A.3d
130 (2014). ‘‘Accordingly, a nonconstitutional error is
harmless when an appellate court has a fair assurance
that the error did not substantially affect the verdict.’’
(Internal quotation marks omitted.) State v. Toro, 172
Conn. App. 810, 817, 162 A.3d 63, cert. denied, 327 Conn.
905, 170 A.3d 2 (2017).
We conclude that the defendant has not demon-
strated that any claimed error was harmful. The state
presented a strong case against the defendant. The jury
heard a detailed description of the defendant’s conduct
from the victim, whose testimony was corroborated by
his stepbrother’s constancy of accusation testimony.
Additionally, the challenged testimony consisted of one
question and one short answer. The prosecutor referred
to the statement only once in her closing argument and
did not use the statement for its truth or to disparage
the defendant, but only referenced that the ‘‘information
was shared’’ with the victim.3 Moreover, the challenged
testimony was inconsistent with the landlord’s testi-
mony, in which she stated that she told the defendant
that the victim’s family had to leave the apartment. The
state highlighted the landlord’s testimony in its closing
argument.4 Accordingly, to the extent that the chal-
lenged testimony had any impact on the jury’s verdict,
it would have undermined, rather than bolstered, the
victim’s credibility. In light of this, and, recognizing the
strength of the state’s case and the insignificance of
the challenged testimony, we conclude that, even if we
assume that the victim’s testimony as to the challenged
statements improperly was admitted, the defendant has
not demonstrated that its admission was harmful.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity can be
ascertained. See General Statutes § 54-86e.
2
The defendant provided the victim with alcohol on two other occasions.
3
The prosecutor, in her closing argument, stated: ‘‘So [the victim] tells
us he’s living in an apartment . . . for about a month and he knows that
they got kicked out a few days before his birthday. He doesn’t tell his mother.
He describes how he was feeling scared and worried. He does testify to
that. And how he was worried that they would get kicked out of the apart-
ment. This is a kid that’s homeless. And I would submit to you that at no
time did he testify or was there any evidence presented that he would be
safe and secure if he lived with his father. He’s [a] fourteen year old kid.
. . . He’s with his mother and two younger siblings. And when they do get
kicked out for whatever reason, his mother tells him, according to [the
victim’s] testimony, they got kicked out of the apartment because the defen-
dant wants to jerk off in peace. For better or for worse, that information
was shared with [the victim] because he told us.’’
4
The prosecutor, in her closing argument, also stated: ‘‘[The defendant]
knows that they are homeless because they’re living with him. They’re in
the apartment with him. They’re not supposed to be there. The [landlord]
told us that. That’s why she told [the defendant] that they had to leave.’’