Opinion
The defendant, Constantinos Antonaras, appeals from the judgment of conviction,
The juiy reasonably could have found the following facts. In 1995, the victim, D,
On June 18,1996, D was sent to the Children’s Home of Cromwell (children’s home), a residential treatment facility, for behavioral issues.
At about this time, when D was eleven years old, he ran into the defendant again. D was playing basketball at a park across the street from the defendant’s residence on Orange Street in Hartford. The defendant was cleaning his car and D approached the defendant. The defendant then took D to batting cages and for ice cream. Afterward, the defendant gave D his cell phone number, which D would call from time to time. During the next two months, the defendant took D shopping, bought him clothes and sneakers, gave him money and took him roller skating. Although the defendant took D’s cousins to the roller skating rink as well, he did not pay for their admission; he only paid for D.
In August, 1998, the defendant asked D to come to his house on Orange Street to help him change a tire. D arrived with two of his cousins, but the defendant told the cousins to wait outside. The defendant told D to sit down in the living room and turned on the television for him. As D was watching television, the defendant sat down next to D and began rubbing D’s leg and telling him that he liked him. The defendant also began “rubbing on [D’s]
Approximately one week later, the defendant again took D and his two cousins roller skating. The defendant dropped the cousins off afterward and took D to get ice cream in West Hartford. The defendant then drove to a parking lot, pulled down his pants and began rubbing and kissing D. The defendant performed oral sex on D, and D performed oral sex on the defendant. Approximately one week after the first parking lot incident, the defendant took D back to the parking lot in West Hartford and had anal sex with him. The defendant then performed oral sex on D.
On Christmas day, 1998, the defendant took D back to the parking lot and gave him a CD player, sneakers and money as gifts. The defendant and D then performed oral sex on each other. That same day, the defendant took D, his two cousins and one of D’s friends to a restaurant at the Mohegan Sun casino. The defendant paid for everyone’s meal. Between August, 1998, and May, 1999, the defendant took D to the West Hartford parking lot for sex approximately ten times. On one occasion, while D’s two cousins were roller skating, the defendant took D to a parking lot in Vernon, where the defendant had oral and anal sex with him.
On May 4, 1999, D was sent to the children’s home a second time.
D left the children’s home on August 1, 2000, when he was fourteen years old, and moved in with the defendant, D’s uncle and D’s cousin. The defendant continued providing D with gifts and money. D and the defendant slept in the same room in separate beds and had oral sex with each other “[a] lot.” Whenever D would attempt to refuse the defendant’s advances, the defendant would “work his way into it” by offering D favors. In October, 2000, the defendant rented an apartment on Barnard Street in Hartford, where only D and the defendant resided. At Barnard Street, the defendant and D had sex “about three or four times a week.” The defendant also played pornographic movies for D at the residence. On April 12, 2001, the defendant became D’s temporary legal custodian.
On January 15, 2002, D was sent to the Long Lane School, a juvenile detention facility, for stealing a car and for truancy. On February 14, 2002, the defendant was appointed D’s legal guardian, after D and the defendant convinced D’s father to consent. On August 16, 2002, when D was sixteen years old, he left the Long Lane School and moved in with the defendant in Weth-ersfield. At the Wethersfield residence,
In May, 2004, D reported the defendant’s sexual abuse to the department of children and families (department).
I
The defendant first claims that the court abused its discretion in admitting the testimony of two witnesses who alleged that he sexually abused them when they were younger. We disagree.
The following additional facts and procedural history are relevant to this claim. The state filed written proffers of the expected testimony of C and R regarding uncharged sexual misconduct perpetrated by the defendant.
At the hearing, C testified that he met the defendant when he was nine or ten years old at the park across the street from the defendant’s residence, on Orange Street in Hartford. C lived near the park and played sports there. C and the defendant became friends, and the defendant drove C and C’s brother to soccer games. C eventually worked for the defendant and the defendant’s brother at their respective restaurants. The defendant took C to “the casino” once, played basketball with him, bought him a chain necklace from Greece and allowed him to eat for free at the restaurants. The defendant and C also talked on the telephone.
When C was between twelve and fifteen years old, he was riding in the defendant’s vehicle after having worked at his restaurant. The two were traveling to the defendant’s apartment, where C was staying for the night. As the defendant was driving, “[h]e slowly ran his hand down the side of [C’s] leg until [C became] aroused,” and then he began rubbing C’s penis with his hand underneath C’s shorts and underwear. This continued for approximately ten minutes until they arrived at the defendant’s apartment. C was “in shock,”
R testified at the hearing as follows. R met the defendant when he was eleven or twelve years old at his aunt’s house. R left his aunt’s house with the defendant to go to Foxwoods Casino (Foxwoods).
A few weeks after the Foxwoods trip, the defendant picked up R from his house and took him to the defendant’s residence. R was watching a basketball game on the defendant’s couch when the defendant sat next to him. The defendant placed his hand around R’s neck, lifted up his shirt and began rubbing his stomach. The defendant then asked to see R’s “trail,” which referred to R’s “pubic hairline going down” to R’s genitals. R attempted to stand up, but the defendant forced him to sit back down and continued his attempt to see R’s “trail.” R then stood up, unlocked the defendant’s door and asked the defendant to take him home.
On another occasion, the defendant bought R a wrestling suit, and after R tried it on the defendant told R to weigh himself. R weighed himself wearing only his boxer shorts, but the defendant asked R “to take off [his] boxers because that’s how the wrestlers do it.” R did not take his boxer shorts off because he felt uncomfortable. On another occasion, the defendant played a pornographic video for R and stated: “I’m gonna show you how to live life.” The defendant also showed R a Playboy magazine. R felt uncomfortable and told the defendant to take him home, which the defendant did. After this incident, R stopped seeing the defendant.
On May 1, 2007, after hearing argument from both the state and the defendant, the court admitted the uncharged misconduct testimony of C and R as common scheme or plan evidence. As to R, the court concluded that “the issue of remoteness does not really present itself . . . because the time period is so close to the time period [of the abuse perpetrated on D]. So, there is no issue of remoteness there. Similarity of the conduct is almost a template placed upon its — over its exact replica. Not only the appearances of the complainants [are] the same, the ages [were] the same, the ethnicity was the same. The defendant knew both families. Each had a trip to the casino, gifts of sports equipment, the same initial type of overtures, sexual overtures, lived in the same neighborhood, [the] defendant had been involved with [R’s] family since [he] was a baby.”
The court then noted the differences between D and R: “[R] was not employed at a restaurant, [and] it was a different
The court then concluded: “Now, in the case of [C] ... -we have the issue of remoteness. However, remoteness itself is not an answer. We do have exquisite similarity in the general identity of that victim in age, ethnicity, gender, appearance, at least what his current appearance would lead you to believe. We have the same age of initial contact, nine or ten, same place, Orange Street park, the same type of mentoring relationship. Here, the defendant becoming his soccer coach, playing basketball together, [C] helping out at the restaurant, getting paid and fed, a trip to the casino, at least one gift, similar initial sexual overtures as far as the type of touching, the defendant knowing the victim’s family.
“And, of course, now we know some of the differences: no trips to the motel, no actual guardianship, and, of course, the touchings stopped. But that’s after there was resistance on the part of [C]. Now, I realize that [C] came from a more intact family than [D], But it was still a family that allowed their nine or ten year old son to be taken to the casino by the defendant without repercussions. . . . There’s the same type of touching during their car ride, same type of sports and mentoring. So, on balance, the template involving the conduct testified to by [C], perpetrated by the defendant, sufficiently similar, exquisitely similar, that in this court’s opinion [it] overcomes any issue of remoteness and [is] more probative than prejudicial.” C and R subsequently testified in front of the jury consistent with the state’s offer of proof.
“The admission of evidence of . . . uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . [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. Heck,
We begin our review of the defendant’s claim by detailing the requirements for admitting evidence of uncharged sexual misconduct. At the time of the defendant’s trial, evidence of uncharged sexual misconduct was admissible under the liberal common scheme or plan standard, which focused on “the similarity shared by the charged and uncharged crimes, rather than the existence of a genuine plan in the defendant’s mind _” State v. DeJesus,
As explained in DeJesus, “[f]irst, evidence of uncharged sexual misconduct is admissible only if it is relevant to prove that the defendant had a propensity or a tendency to engage in the type of aberrant and compulsive criminal sexual behavior with which he or she is charged. Relevancy is established by satisfying the liberal standard pursuant to which evidence previously was admitted under the common scheme or plan exception. Accordingly, evidence of uncharged misconduct is relevant to prove that the defendant had a propensity or a tendency to engage in the crime charged only if it is: (1) . . . not too remote in time; (2) . . . similar to the offense charged; and (3) . . . committed upon persons similar to the prosecuting witness.” (Internal quotation marks omitted.) Id., 473. “Second, evidence of uncharged misconduct is admissible only if its probative value outweighs the prejudicial effect that invariably flows from its admission. ... In balancing the probative value of such evidence against its prejudicial effect, however, trial courts must be mindful of the purpose for which the evidence is to be admitted, namely, to permit the jury to consider a defendant’s prior bad acts in the area of sexual abuse or child molestation for the purpose of showing propensity.” (Citations omitted; internal quotation marks omitted.) Id., 473-74.
On appeal, the defendant argues that the court improperly admitted the uncharged misconduct testimony of C and R.
As to the first of the three relevancy prongs, we compare the time “with reference to the period between the cessation of the prior misconduct and the beginning of the charged sexual abuse.” State v. Romero,
In Romero, our Supreme Court also cited approvingly cases from other jurisdictions in which courts “have concluded that evidence of prior misconduct was admissible in instances in which the prior misconduct was far more remote in time than [nine years]. See United States v. Meacham,
Regarding similarity of the uncharged misconduct to the charged abuse, the second prong, the defendant cites State v. Gupta,
In a number of cases, our Supreme Court and this court have looked to the initial sexual advances of the defendant in comparing the similarity of the uncharged misconduct to the charged abuse, especially when the uncharged misconduct witnesses rebuffed the advances or the defendant otherwise was prevented from abusing them. In State v. McKenzie-Adams,
In fact, in State v. Jacobson, supra,
In State v. Ellis, supra,
In this case, as intimated by the trial court, the defendant engaged in a similar grooming process with D, C and R. He provided them with gifts, food and, with D and C, work. He was involved in sports with all three, fostering early contact with D and C at the park across from the defendant’s Orange Street residence, taking D to batting cages, coaching C in soccer, and purchasing R a wrestling suit. Additionally, he took all three boys to a casino at least once.
The defendant also engaged in similar initial sexual overtures. He made his initial advances either in his vehicle or residence when he was alone with the victims. He began by rubbing the legs of his victims to test their receptiveness to his advances before escalating to more intimate contact. He also attempted to entice D and R with pornography to further his sexual misconduct. Although the defendant is correct that the abuse perpetrated on D was far more frequent and severe than that of C and R, the jury reasonably could have inferred that this was true only because C and R rebuffed the defendant and stopped seeing him, while D did not. See State v. Jacobson, supra,
As to the third prong, the similarity between the witnesses and the victim, the defendant’s principal argument
Although, over time, the relationship between the defendant and D developed into a familial type of relationship, when the abuse started, the defendant’s relationship with D closely resembled his relationships with C and R. All three boys were similar in age when they first met the defendant. D met the defendant when he was nine years old, C met the defendant when he was nine or ten years old, and R met the defendant when he was eleven or twelve years old. The sexual misconduct first occurred when the boys were of similar ages as well: D was eleven years old, C was between twelve and fifteen years old, and R was eleven or twelve years old. As stated by the trial court, D, C and R have a similar appearance. Additionally, as mentioned, the defendant fostered his relationships with the boys in a similar fashion. Therefore, D, C and R were sufficiently similar victims, when the defendant’s abuse of them began, so that the evidence of the uncharged misconduct was relevant to prove that the defendant had a propensity to engage in the aberrant or compulsive sexual abuse with which he was charged.
The defendant next argues that the probative value of the uncharged misconduct evidence did not outweigh its prejudicial effect because “evidence of uncharged misconduct that involves the alleged sexual abuse of a child is extremely prejudicial.” We reject the defendant’s argument. Although evidence 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 added; internal quotation marks omitted.) State v. James G., supra,
ff
The defendant’s second claim is that the trial court improperly instructed the jury
After C testified in front of the jury and just before R testified, the court provided the following instruction to the jury: “Now, ladies and gentlemen, I have another specific instruction for you that will be repeated and expanded at the time of the final instruction. Before we hear from the next witness — and having just heard from the last witness, the evidence that has been testified to and I anticipate will be testified to about the— by the next witness involve an assertion of prior acts of misconduct on the part of the defendant. That evidence is not admitted to prove bad character of the defendant or the defendant’s tendency to commit criminal acts. The evidence is offered solely in an attempt to establish a common plan or scheme in the commission of criminal acts. You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity. You may consider such evidence if you believe it and further find that it logically, rationally, and conclusively supports the issue for which it is being offered by the state, but only as it may bear upon those issues. And that is the assertion of a common plan or scheme to sexually abuse young men. On the other hand, if you do not believe this evidence or even if you do, if you find it does not logically or rationally or conclusively support the issues of common plan or scheme for which it is being offered, you should not consider this testimony for any purpose whatsoever.” The court also provided a similar instruction to the jury after the close of all the evidence.
On appeal, the defendant argues that because the court instructed the jury that it could not use the uncharged misconduct evidence for propensity purposes, but could only use it as evidence of a common plan or scheme, the instruction was improper in that it conflicted with State v. DeJesus, supra,
In DeJesus, our Supreme Court held that “to minimize the risk of undue prejudice to the defendant, the admission of evidence of uncharged sexual misconduct under the limited propensity exception
As explained in State v. Johnson,
m
The defendant next claims that the court improperly failed to inquire as to a conflict of interest involving defense counsel and the Hartford police department. Specifically, the defendant argues that defense counsel’s statement, during individual voir dire of a prospective juror, that he sometimes represents Hartford police officers and “ ‘some of the union’ ” required the court to conduct a conflict of
The defendant’s claim is unpreserved because neither the defendant nor defense counsel claimed at trial that defense counsel may have had a conflict of interest in light of his ongoing relationship with the Hartford police department.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.
D testified that he was sent to the children’s home because he “had a couple [of incidents] with the law” for “throwing rocks at cars” and “pushing a kid off of a bike and taking his money.” When asked if there was “any other reason why [he] ended up” at the children’s home, D responded: “Just being disobedient of my dad.”
D testified that his father started beating him again and that on one occasion his father’s girlfriend struck him and D pushed her back. D’s father then kicked him out of the house.
D was sent to the children’s home in connection with his arrest for shooting his BB gun through a residential window.
The department personnel eventually convinced D to accept placement at a youth shelter in Hartford.
The state also sought to present the testimony of two other victims of the defendant’s sexual misconduct, which was uncharged. The trial court, however, excluded their testimony.
C also testified that on a prior occasion, he was playing soccer and was hit by the ball in his “private area . . . .” The defendant, who was one of the coaches at the time, came over, pulled C’s shirt up and shorts down and looked at his penis. C swatted the defendant’s hand away.
R testified that the defendant knew R’s family but that this was the first time he remembers meeting the defendant. R also testified that he did not tell his mother that he was going with the defendant to Foxwoods.
Therefore, we may look to “prior precedent construing the scope and contours of the liberal standard pursuant to which evidence of uncharged misconduct previously was admitted under the common scheme or plan exception.” State v. DeJesus, supra,
Although the uncharged misconduct evidence was admitted under the common scheme or plan exception, the defendant argues on appeal that the evidence was inadmissible under the propensity exception delineated in DeJesus. As the defendant concedes, if the evidence was admissible for propensity purposes, any error in admitting the testimony under the common scheme or plan exception was harmless. See State v. Johnson,
In State v. Gupta, supra,
The state also argues that we should not look to the severity of the • abuse at all because “[w]hatever the nature of the particular sexual behavior an adult inflicts on a child, the behavior shows aberrant sexual interest, which is the significant common factor for purposes of proof of propensity.” We are bound by the precedent of our Supreme Court, namely, Ellis and Gupta, which hold that severity is at least one factor to be consulted under the similarity of abuse prong.
The defendant also challenges various factual statements made by the trial court in its ruling on whether to admit the testimony of C and R. For example, the defendant argues that, contrary to C’s testimony that he was nine or ten years old when he met the defendant, C actually was at least thirteen years old and that there was no evidence that C was the same ethnicity as D or had a similar appearance when he was younger. The defendant also argues that there was no evidence that R was the same ethnicity as D, that the defendant knew D’s family or that D received “gifts of sports equipment” from the defendant. We see no merit in these conten-üons, as there was sufficient evidence from which the jury could have found these facts.
Although the uncharged misconduct evidence was admitted under the common scheme or plan exception, in light of DeJesus the jury properly could have considered the evidence for propensity purposes. See State v. Johnson, supra,
In DeJesus — which was decided subsequent to the defendant’s trial— our Supreme Court abandoned the common scheme or plan exception that was applicable to sex crimes as inconsistent with State v. Randolph,
The state also argues that the defendant’s claim of instructional error should not be reviewed because it is unpreserved and, if it is reviewed, that the jury instruction was not improper because DeJesus applies prospectively only. We disagree. See State v. Kitchens,
Although defense counsel informed the trial court prior to jury selection that the defendant sought new counsel, this request was unrelated to any potential conflict of interest involving defense counsel and the Hartford police. Moreover, after the defendant was unable to obtain the substitute counsel he wanted due to a scheduling conflict, there was no further discussion of the defendant’s dissatisfaction with his counsel until sentencing.