State v. Prince A.

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STATE OF CONNECTICUT v. PRINCE A.*
(AC 41962)
Lavine, Bright and Devlin, Js.

Syllabus

Convicted of the crimes of sexual assault in the first degree, sexual assault
in the fourth degree and risk of injury to a child, the defendant appealed
to this court. The defendant’s conviction stemmed from his alleged
sexual abuse of the victim, his daughter, who did not report the assault
until a few years later. On cross-examination of the victim, the defendant
challenged her credibility and her delay in reporting the assault. After
the state offered the testimony of A, a constancy of accusation witness,
the defendant elicited on cross-examination of A that she believed that
the victim had reported the assault contemporaneously, without delay.
The defendant then moved to strike A’s testimony on the ground that
there was no justification for having a constancy of accusation witness
testify when the witness testifies that there was no delay in the victim’s
reporting of the assault. The trial court denied the defendant’s motion
on the ground that, under the Supreme Court’s modification of the
constancy of accusation doctrine in State v. Daniel W. E. (322 Conn.
593), the state was permitted to present A’s testimony because the
defendant had challenged the victim’s credibility and her delay in
reporting the assault. On appeal, the defendant claimed that the trial
court improperly admitted A’s testimony to refute any negative infer-
ences the jury might have drawn from the victim’s delay in reporting
the assault. Held that the trial court did not abuse its discretion in
denying the defendant’s motion to strike A’s testimony, that court having
properly applied the constancy of accusation doctrine as modified in
Daniel W. E.; A’s testimony was proper because the defendant undisput-
edly challenged the victim’s credibility on cross-examination when he
inquired about her delayed reporting, such delay was for the jury to
consider in evaluating the weight to be given to the victim’s testimony,
it was the fact of the victim’s having reported her complaint to A that
was relevant, and any inaccuracy in A’s belief as to the delay in reporting
did not preclude the admission of A’s testimony but, rather, went to
A’s credibility.
Argued January 9—officially released March 10, 2020

Proceedings

Substitute information charging the defendant with
two counts of the crime of risk of injury to a child, and
with one count each of the crimes of sexual assault in
the first degree and sexual assault in the fourth degree,
brought to the Superior Court in the judicial district of
Hartford and tried to the jury before D’Addabbo, J.;
thereafter, the court granted the defendant’s motion for
a judgment of acquittal as to one count of risk of injury
to a child; verdict and judgment of guilty of one count
of risk of injury to a child, and sexual assault in the
first degree and sexual assault in the fourth degree, from
which the defendant appealed to this court. Affirmed.
John C. Drapp III, assigned counsel, for the appel-
lant (defendant).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and John F. Fahey, supervisory assistant state’s
attorney, for the appellee (state).
Opinion

DEVLIN, J. The defendant, Prince A., appeals from
the judgment of conviction, rendered after a jury trial, of
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (2), sexual assault in the fourth
degree in violation of General Statutes (Rev. to 2009)
§ 53a-73a (a) (1) (A) and risk of injury to a child in
violation of General Statutes § 53-21 (a) (2). On appeal,
the defendant claims that the trial court improperly
admitted testimony of a constancy of accusation wit-
ness to refute any negative inferences the jury might
have drawn from the victim’s delay in reporting the
sexual assault because that witness mistakenly believed
that there had been no delay.1 We affirm the judgment
of the trial court.
The jury reasonably could have found the following
relevant facts. The victim is the defendant’s daughter.
In 2010 or 2011, when the victim was either ten or
eleven years old, the defendant sexually assaulted the
victim while they were alone in his apartment. Initially,
the victim did not report the assault because she felt
uncomfortable and scared. A few years later, in 2013,
the victim told a friend at school about the assault.
Shortly thereafter, the victim met with Iris Adgers, a
behavior technician at the victim’s school, and
described the assault. Following this meeting, the Hart-
ford Police Department was notified of the assault and
investigated the defendant.
The following procedural history also is relevant to
this appeal. On November 13, 2017, the state charged
the defendant with sexual assault in the first degree,
sexual assault in the fourth degree, and two counts of
risk of injury to a child, one count under § 53-21 (a)
(1) and one count under § 53-21 (a) (2). Trial com-
menced on November 27, 2017.
During trial, the jury heard testimony from the victim.
When the defendant’s trial counsel, William Gerace,
cross-examined the victim, he challenged her credibility
and her delay in reporting the assault. Following the
victim’s testimony, the state offered Adgers as a con-
stancy of accusation witness whose testimony, as the
court later explained in a limiting instruction to the
jury, was offered solely ‘‘to negate any inference that
[the victim] failed to tell anyone about the sexual
offense and, therefore, that [the victim’s] later assertion
could not be believed. . . . Constancy evidence is not
evidence that the sexual offense actually occurred or
that [the victim] is credible. It merely serves to negate
any inference that because of [the victim’s] assumed
silence the offense did not occur.’’ Adgers offered brief
testimony confirming that the victim had reported the
sexual assault to Adgers. Immediately following the
state’s direct examination of Adgers, the court gave a
limiting instruction to the jury regarding constancy of
accusation testimony. On cross-examination, Adgers
testified that, as far as she knew, the victim had reported
the assault contemporaneously, without delay.2 Follow-
ing Adgers’ testimony, Gerace moved to strike her testi-
mony, arguing that there was no justification for having
a constancy of accusation witness testify when that
witness testifies that there was no delay in the victim’s
reporting of the assault. The court denied the motion,
noting that because the defendant had challenged the
victim’s credibility and her delay in reporting the
assault, the state was permitted to present constancy
testimony.
Following three days of evidence, the case was sub-
mitted to the jury. During its final charge to the jury,
the court again offered a limiting instruction regarding
Adgers’ testimony. After deliberating, the jury found
the defendant guilty of sexual assault in the first degree,
sexual assault in the fourth degree, and one count of
risk of injury to a child in violation of § 53-21 (a) (2).3
The court then sentenced the defendant to serve a total
effective term of seventeen years of imprisonment, fol-
lowed by three years of special parole. This appeal
followed.
Before turning to the claim on appeal, we set forth the
applicable law governing the constancy of accusation
doctrine and our scope and standard of review. The
constancy of accusation ‘‘doctrine traces its roots to
the fresh complaint rule . . . [t]he narrow purpose of
[which] . . . was to negate any inference that because
the victim had failed to tell anyone that she had been
[sexually assaulted], her later assertion of [sexual
assault] could not be believed. . . . [B]ecause juries
were allowed—sometimes even instructed—to draw
negative inferences from the woman’s failure to com-
plain after an assault . . . the doctrine of fresh com-
plaint evolved as a means of counterbalancing these
negative inferences. Used in this way, the fresh com-
plaint doctrine allowed the prosecutor to introduce,
during the case-in-chief, evidence that the victim had
complained soon after the [sexual assault]. Its use
thereby forestalled the inference that the victim’s
silence was inconsistent with her present formal com-
plaint of [assault]. . . . In other words, evidence admit-
ted under this doctrine effectively served as anticipa-
tory rebuttal, in that the doctrine often permitted the
prosecutor to bolster the credibility of the victim before
her credibility had first been attacked. . . . The fresh
complaint doctrine thus constituted a rare exception
to the common-law rule that prohibited rehabilitative
evidence in the absence of an attack on the [witness’]
credibility.’’ (Citations omitted; internal quotation
marks omitted.) State v. Daniel W. E., 322 Conn. 593,
618–19, 142 A.3d 265 (2016).
Presently, the constancy of accusation doctrine, as
modified by our Supreme Court in Daniel W. E., per-
mits ‘‘the victim in a sexual assault case . . . to testify
on direct examination regarding the facts of the sex-
ual assault and the identity of the person or persons
to whom the incident was reported. . . . Thereafter,
if defense counsel challenges the victim’s credibility
by inquiring, for example, on cross-examination as to
any out-of-court complaints or delayed reporting, the
state will be permitted to call constancy of accusation
witnesses subject to [certain] limitations . . . . If
defense counsel does not challenge the victim’s credi-
bility in any fashion on these points, the trial court shall
not permit the state to introduce constancy testimony
but, rather, shall instruct the jury that there are many
reasons why sexual assault victims may delay in offi-
cially reporting the offense, and, to the extent the vic-
tim delayed in reporting the offense, the delay should
not be considered by the jury in evaluating the victim’s
credibility.’’4 (Citation omitted; internal quotation marks
omitted.) Id., 629. A constancy of accusation witness is
limited to testifying ‘‘only with respect to the fact and
timing of the victim’s complaint; any testimony by the
witness regarding the details surrounding the assault
must be strictly limited to those necessary to associate
the victim’s complaint with the pending charge, includ-
ing, for example, the time and place of the attack or the
identity of the alleged perpetrator.’’ (Internal quotation
marks omitted.) Id., 620.
‘‘[W]hether evidence is admissible under the con-
stancy of accusation doctrine is an evidentiary question
that will be overturned on appeal only where there was
an abuse of discretion and a showing by the defendant
of substantial prejudice or injustice. . . . An appellate
court will make every reasonable presumption in favor
of upholding the trial court’s evidentiary rulings. . . .
To the extent that the evidentiary ruling in question is
challenged as an improper interpretation of a rule of
evidence, our review is plenary.’’ (Citation omitted;
internal quotation marks omitted.) State v. Gene C., 140
Conn. App. 241, 247–48, 57 A.3d 885, cert. denied, 308
Conn. 928, 64 A.3d 120 (2013).
The defendant’s claim on appeal is that the trial court
abused its discretion by admitting Adgers’ testimony
under the constancy of accusation doctrine because
she believed that the victim had not delayed in reporting
the sexual assault. We disagree.
The defendant’s claim is premised on an inaccurate
reading of Daniel W. E. In Daniel W. E., our Supreme
Court established that the only prerequisite for the
introduction of constancy testimony is the ‘‘defense
counsel challeng[ing] the victim’s credibility by inquir-
ing, for example, on cross-examination as to any out-
of-court complaints or delayed reporting . . . .’’ State
v. Daniel W. E., supra, 322 Conn. 629. It is undisputed
that Gerace, in fact, did challenge the credibility of the
victim and her delay in her reporting. Such delay is a
matter for the jury to consider in evaluating the weight
to be given to the victim’s testimony. See id. As to
constancy of accusation witnesses, it is the fact of the
victim’s complaint to them that is relevant. See id., 622.
Any inaccuracy in the constancy witness’ belief as to
the delay in reporting does not preclude the admission
of such testimony but, rather, goes to that witness’ cred-
ibility.
We therefore conclude that the trial court properly
applied the constancy of accusation doctrine and did
not abuse its discretion in denying the defendant’s
motion to strike Adgers’ testimony.
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 assault 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 victim’s identity may be ascertained. See General Statutes § 54-86e.
1
On appeal, the defendant additionally claims that the trial court should
not have admitted portions of the testimony of the constancy of accusation
witness that were irrelevant and cumulative. The state argues, and the
defendant conceded at oral argument before this court, that these claims
were not presented to the trial court and, thus, were unpreserved for appeal.
Accordingly, we decline to review these unpreserved evidentiary claims.
See State v. Artiaco, 181 Conn. App. 406, 412, 186 A.3d 789, cert. granted
on other grounds, 329 Conn. 906, 185 A.3d 594 (2018); id., 411 (‘‘Appellate
review of evidentiary rulings is ordinarily limited to the specific legal
[ground] raised by the objection of trial counsel. . . . To permit a party to
raise a different ground on appeal than [that] raised during trial would
amount to trial by ambuscade, unfair both to the trial court and to the
opposing party.’’ (Internal quotation marks omitted.)).
2
Adgers also testified on cross-examination that she would not have
been surprised if she were mistaken and that the assault had occurred
years earlier.
3
After the close of evidence, the court granted the defendant’s motion
for a judgment of acquittal as to the second count of risk of injury to a
child in violation of § 53-21 (a) (1).
4
Following Daniel W. E., § 6-11 of the Connecticut Code of Evidence was
revised to reflect our Supreme Court’s modification of the constancy of
accusation doctrine. Section 6-11 (c) of the Connecticut Code of Evidence
presently provides in relevant part: ‘‘(1) If the defense impeaches the credibil-
ity of a sexual assault complainant regarding any out-of-court complaints
or delayed reporting of the alleged sexual assault, the state shall be permitted
to call constancy of accusation witnesses. . . .
‘‘(2) if the complainant’s credibility is not impeached by the defense
regarding any out-of-court complaints or delayed reporting of the alleged
sexual assault, constancy of accusation testimony shall not be permitted,
but, rather, the trial court shall provide appropriate instructions to the jury
regarding delayed reporting.’’
The revision to § 6-11 of the Connecticut Code of Evidence did not go
into effect until February 1, 2018, whereas the trial concluded in the present
case on November 30, 2017. Nonetheless, the Supreme Court released its
decision in Daniel W. E. on August 23, 2016, prior to the commencement
of the evidentiary portion of the present trial, and, thus, the modified con-
stancy of accusation doctrine applied to the present case. See State v. Daniel
W. E., supra, 322 Conn. 630.