State v. Barry A., 2013 Conn. App. LEXIS 450

Background

Defendant Barry A. was convicted by a jury of multiple counts of sexual assault (second and fourth degree) and risk of injury to a child for assaults on his adopted daughter; sentenced to an effective 40-year term (execution suspended after 20) and required sex-offender registration.
Victim testified to repeated sexual assaults beginning at about age 11, including assaults in the defendant’s truck and at home; she disclosed to her sister C and the family’s youth pastor, which triggered a DCF report and the defendant’s arrest.
At trial defense sought to use the DCF report to refresh the victim’s recollection about statements that appeared inconsistent with statements she made to her aunt; the trial court disallowed use of the report as irrelevant/collateral but permitted cross-examination demonstrating prior lies.
The state sought and the court admitted evidence of uncharged sexual misconduct against the defendant involving his daughter C, giving limiting instructions about the permissible use of that evidence (intent/motive/common scheme), and repeated those instructions.
Defendant raised 20 instances of alleged prosecutorial impropriety (personal vouching, appeals to emotion, denigration of defense counsel, introducing facts not in evidence); most were unobjected to at trial and the court rejected the claims on appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court improperly prevented defense from refreshing victim’s recollection with DCF report, violating Confrontation Clause	State: exclusion was within court’s discretion because the report was collateral and would confuse the jury; cross-examination already exposed prior inconsistent statements	Defendant: needed report to refresh victim’s memory about inconsistent statements to impeach credibility and confront witness	Court: No abuse of discretion; exclusion was permissible as collateral and not required for confrontation right
Whether admission of uncharged misconduct (assaults on daughter C) was improper	State: uncharged acts were similar, not too remote, and probative of intent/common scheme; limiting instruction mitigated prejudice	Defendant: acts differed in escalation, location, and victim relationship such that they were not sufficiently similar and were unduly prejudicial	Court: Evidence met DeJesus factors (similarity, temporal proximity, victims), was more probative than prejudicial, and proper cautionary instruction minimized prejudice
Whether cautionary jury instruction about uncharged misconduct was inadequate/confusing	State: court gave limiting instruction and repeated it; instruction was actually narrower than DeJesus propensity framing (thus favorable to defendant)	Defendant: instruction failed to identify appropriate exception, leaving jurors confused about how to use the evidence	Court: Instruction was appropriate, limited use to intent/motive, and did not cause prejudicial confusion
Whether prosecutor’s trial advocacy amounted to prosecutorial impropriety denying fair trial	State: prosecutor’s remarks were fair comment, reasonable inferences from evidence, responses to defense argument, or rhetorical devices; many points were unobjected to	Defendant: prosecutor vouched, appealed to emotion, denigrated defense counsel, and argued facts not in evidence across many instances	Court: No reversible impropriety; comments were within permissible argument, not severe/frequent enough to deprive of due process; defendant failed to show prejudice

Key Cases Cited

State v. Bruno, 236 Conn. 514 (discretion over refreshing witness recollection)
State v. Davis, 298 Conn. 1 (appellate review of evidentiary rulings and confrontation analysis)
State v. DeJesus, 288 Conn. 418 (admissibility framework for uncharged sexual misconduct in sex‑crime cases)
State v. L.W., 122 Conn. App. 324 (application of DeJesus factors for similarity and relevance)
State v. Antonaras, 137 Conn. App. 703 (balancing probative value v. prejudice for uncharged misconduct)
State v. Taft, 306 Conn. 749 (effect of failure to object on prosecutorial impropriety review)
State v. Stevenson, 269 Conn. 563 (due process touchstone for prosecutorial impropriety)
State v. Fauci, 282 Conn. 23 (factors to assess prosecutorial impropriety severity and impact)
State v. Long, 293 Conn. 31 (limits on prosecutorial vouching and permissible comment on evidence)
State v. Warholic, 278 Conn. 354 (improper appeals to sympathy/characterizations of victim)
State v. Colton, 227 Conn. 231 (impeachment and evidence of witness motive/bias)