346 Conn. 432
Conn.2023Background
- Michael R. (defendant) began a relationship with R and regularly had R’s nine‑year‑old daughter G stay overnight; during those visits he repeatedly sexually assaulted G.
- Defendant gave G a cell phone, required daily "selfies," forbade R from seeing the phone, and texted instructions for G to pose partially/fully nude; police later recovered numerous suggestive and nude photos and corroborating texts.
- After R found a bruise on G and the Cellebrite extraction of G’s phone, a civil protective order was entered prohibiting the defendant from contacting or stalking G; defendant later positioned himself to observe and follow G’s school van.
- Prosecutor charged three separate informations (sexual offenses; obscene performance/risk/assault; protective‑order violations and stalking); the court denied severance and granted joinder; defendant represented himself at trial.
- The trial court excluded video recordings of two forensic interviews when offered by the defense, and limited the defendant’s attempts to refresh/impeach G with those statements.
- A jury convicted the defendant of sexual assault in the first degree, two counts of risk of injury to a child, employing a minor in an obscene performance, assault in the third degree, two counts of criminal violation of a protective order, and two counts of stalking in the first degree; judgments affirmed on appeal.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Joinder/consolidation of sexual and nonsexual charges | Evidence was cross‑admissible to prove motive, intent, absence of mistake and to complete the story; joinder would not unduly prejudice defendant | Joinder unduly prejudiced defendant because sexual evidence was shocking and not cross‑admissible to prove nonsexual charges | Affirmed: trial court did not abuse discretion—evidence involving same victim was relevant, probative, cross‑admissible, and jury instructions mitigated prejudice (State v. James A. framework). |
| Vagueness challenge to § 53a‑196a (employing minor in obscene performance) | Statute and terms (e.g., "nude performance") are constitutionally adequate when read with prior Connecticut case law | Statute vague as applied; defendant’s posed nude selfies are not a "nude performance" or a "prohibited sexual act" | Rejected: statute not unconstitutionally vague as applied; prior Connecticut decisions put defendant on notice that directing a child to pose nude can constitute a "nude performance." |
| First Amendment: whether images are obscene/harmful to minors | Images depicting a nude child in sexually suggestive poses satisfy Miller/Miller‑as‑adopted standard and are harmful to minors; therefore no First Amendment protection | Images are not lascivious/sexually explicit and should be protected; requests independent appellate review | Rejected: independent review applied; photographs (given G’s age, poses, and defendant’s directions) were "harmful to minors" (obscene as to minors) and unprotected. |
| Exclusion of forensic interview recordings (confrontation/right to present a defense) | Court properly excluded recordings for lack of foundation/authentication and to protect child witness from abusive questioning; any error harmless | Exclusion prevented impeachment with prior inconsistent statements and violated confrontation/right to present defense | Court erred in interjecting during refreshment/impeachment but any error was harmless beyond a reasonable doubt because the first interview was cumulative and the second corroborated trial testimony (and would have been damaging to defense). |
| Sufficiency of evidence for assault (3d degree), protective‑order violations, and stalking | Physical injury, texts about punishment, photos and behavior supported intent and required elements; multiple acts supported "course of conduct" | Insufficient proof of intent to injure (blanket mitigated injury); stationary conduct insufficient for violation/stalking | Affirmed: evidence was sufficient—bruise, number of strikes, texts, inconsistent statements, and circumstantial evidence supported assault; positioning/waiting/following supported protective‑order violations and stalking (course of conduct). |
Key Cases Cited
- State v. James A., 345 Conn. 599 (Conn. 2022) (joinder standard; cross‑admissibility and state burden)
- State v. LaFleur, 307 Conn. 115 (Conn. 2012) (joinder/severance principles)
- State v. Boscarino, 204 Conn. 714 (Conn. 1987) (factors for severance when joinder may be prejudicial)
- State v. Ehlers, 252 Conn. 579 (Conn. 2000) (photographs for personal viewing can constitute an exhibition)
- State v. Sorabella, 277 Conn. 155 (Conn. 2006) (nude performance includes showing female breast with less than opaque covering)
- State v. Sawyer, 335 Conn. 29 (Conn. 2020) (case‑specific approach; Dost factors relevant in assessing lasciviousness/child pornography indicators)
- Miller v. California, 413 U.S. 15 (U.S. 1973) (obscenity test applied to determine whether material is protected speech)
- New York v. Ferber, 458 U.S. 747 (U.S. 1982) (child pornography may be proscribed notwithstanding Miller; state’s distinct interest in protecting children)
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (multifactor test for determining whether an image is a lascivious exhibition of the genitals)
- State v. Zarick, 227 Conn. 207 (Conn. 1993) (photographs of nude children can be sexually explicit and criminal under state law)