Opinion
The defendant, Constantinos Antonaras, appeals from the judgment of conviction, rendered following a jury trial, of five counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), nine counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and fourteen counts of 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 (1) admitted evidence of the defendant’s uncharged sexual misconduct with two other minors, (2) instructed the jury that it could consider the uncharged misconduct as evidence of a common scheme or plan and (3) failed to inquire as to a potential conflict of interest involving defense counsel and the Hartford police department. We affirm the judgment of the trial court.
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.
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.
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, the defendant
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
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,” and as soon as he entered the apartment he “grabbed a sheet” and wrapped it around himself. C stated that the defendant then started rubbing C’s leg and butt. C
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
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 vehicle involved .... And, of course, there was no guardianship. The other big difference is that [R] rebuffed the defendant’s advances. And shortly thereafter there were no more advances. . . . The difference with [D] is that they were not rebuffed and they didn’t stop. While this is not a signature issue, quite frankly, the conduct between . . . the defendant and [R] would raise it to that level. And I find that other
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. . . .
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, 288 Conn. 418, 467, 953 A.2d 45 (2008). Subsequent to the defendant’s trial, our Supreme Court, in DeJesus, created an exception, for sex crimes, to the general prohibition against the admission of uncharged misconduct evidence for propensity purposes. Our Supreme Court explained, however, that the same standard that governed the liberal common scheme or plan exception applies to the new propensity exception.
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
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, 269 Conn. 481, 499 n.20, 849 A.2d 760 (2004). C testified that the sexual misconduct occurred when he was between twelve and fifteen years old, which would have been between 1986 and 1989. D testified that he first was abused by the defendant in August, 1998. Accordingly, the interval between cessation of the prior misconduct and the beginning of the charged abuse of D was between approximately nine and twelve years. Although there are no Connecticut appellate court cases in which a twelve year gap was determined not to be too remote, there are cases indicating that a nine year or ten year gap is not too remote. See, e.g., State v. Jacobson, 283 Conn. 618, 632-33, 930 A.2d 628 (2007) (ten year gap not “insignificant” but not too remote); State v. Romero, supra, 498-500 (nine year gap not too remote).
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, 115 F.3d 1488, 1494-95 (10th Cir. 1997) (prior sexual misconduct took place thirty years earlier); State v. McGuire, 135 Idaho 535, 539-40, 20 P.3d 719 (App. 2001) (twenty-three years); Smith v. State, 745 So. 2d 284, 289 (Ala. Crim. App. 1998) (time gaps of between eighteen to twenty years and fourteen to twenty years); State v. Christopherson, 482 N.W.2d
Regarding similarity of the uncharged misconduct to the charged abuse, the second prong, the defendant cites State v. Gupta, 297 Conn. 211, 998 A.2d 1085 (2010), and State v. Ellis, 270 Conn. 337, 852 A.2d 676 (2004), for the proposition that the uncharged misconduct against both C and R was too dissimilar in frequency and severity to the abuse of D. The state argues that the defendant engaged in a similar pattern of behavior with regard to C, R and D in order to befriend them, gain their trust and, ultimately, sexually seduce them. The state further argues that we should look to the initial sexual advances of the defendant, because “it is reasonable to infer that the only reason the defendant’s sexual behavior with [C and R] was ‘less severe’ than that with [D] was that [C and R] rebuffed the defendant and stopped seeing him.”
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
In fact, in State v. Jacobson, supra, 283 Conn. 618, our Supreme Court concluded that the uncharged misconduct was sufficiently similar to the charged abuse
In State v. Ellis, supra, 270 Conn. 337, our Supreme Court made clear that frequency and severity are factors relevant to the similarity of abuse analysis; id., 359-60; but the court also looked to the location of the abuse and whether it occurred in the vicinity of others. The court noted that the abuse of one of the victims, Sarah S., took place inside her home when no one else was present, while the abuse of the other three victims took place at a sports facility and “all except one occurred in the vicinity of other persons.” Id., 359. Additionally, the court went out of its way to explain that the initial abuse of Sarah S. was not similar to the initial abuse of the other victims. Id., 363-64. Most importantly, the court noted that the defendant had a much different relationship with Sarah S. than with the other victims: “Sarah S., unlike the other girls, was not a member of [a] softball team [the defendant coached], did not have frequent and continuous contact with the defendant as
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.
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
ff
The defendant’s second claim is that the trial court improperly instructed the jury that it could consider the uncharged misconduct as evidence of a common scheme or plan. We agree that the court’s charge was improper but conclude that the court’s error was harmless.
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
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, 288 Conn. 418.
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 adopted herein must be accompanied by an appropriate cautionary instruction to the jury.” State v. DeJesus, supra, 288 Conn. 474.
As explained in State v. Johnson, 289 Conn. 437, 457, 958 A.2d 713 (2008), overruled in part on other grounds by State v. Payne, 303 Conn. 538, 548, 34 A.3d 370 (2012): “In the present case, even if the evidence of each murder was not cross admissible to prove intent or a common plan or scheme, the only potential harm that could arise from the admission of that evidence for either of those purposes was that the jury could infer that, because the defendant previously had killed women in the course of satisfying his sexual proclivities, he had done so again. Under DeJesus and [State v. Snelgrove, 288 Conn. 742, 766, 954 A.2d 165 (2008)], however, that evidence is admissible for that purpose. . . . Accordingly, even if we assume that the evidence was improperly admitted for other purposes, any impropriety was harmless.” (Citations omitted.) Just as the admission of uncharged misconduct evidence for common scheme or plan purposes is harmless, we conclude that the trial court’s instruction that the jury could consider the uncharged misconduct as evidence of a common scheme or plan was harmless.
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 interest inquiry. The defendant further argues that the court’s failure to inquire is reversible error because the conflict of interest caused defense counsel to inadequately cross-examine a Hartford police officer and to not call other witnesses to support the testimony of a defense witness. We decline to review this unpreserved claim.
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.
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, 288 Conn. 477; see also State v. Gupta, 297 Conn. 211, 225 n.7, 998 A.2d 1085 (2010).
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, 289 Conn. 437, 456-57, 958 A.2d 713 (2008), overruled in part on other grounds by State v. Payne, 303 Conn. 538, 548, 34 A.3d 370 (2012); State v. DeJesus, supra, 288 Conn. 476.
In State v. Gupta, supra, 297 Conn. 211, our Supreme Court also relied, in part, on the relative egregiousness of the sexual misconduct perpetrated by the defendant, a physician who performed medical examinations on the victims. Id., 226-27. That case, however, is distinguishable because M, one of the victims, “had a four year employment relationship with the defendant’s medical group preceding the date of the alleged assault, whereas J and D [the two other victims] had no relationship with him other than a physician-patient relationship.” Id., 229. Additionally, “with respect to D and J, the defendant’s misconduct was that he palpated their breasts in a manner intended to convey that such conduct was for a bona fide medical purpose,” whereas his misconduct with M “reasonably could not be viewed as intending to represent that the defendant was engaged in a such a bona fide medical purpose.” (Internal quotation marks omitted.) Id., 228 n.9.
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-
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, 289 Conn. 456-57.
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, 284 Conn. 328, 354-55, 933 A.2d 1158 (2007), which held that the common scheme or plan exception required a showing of a “ ‘true’ ” plan in the defendant’s mind. State v. DeJesus, supra, 288 Conn. 468. In its place, however, our Supreme Court created a propensity exception for sex crimes governed by the same standard that applied to the liberal common scheme or plan exception. Id., 470-73; see part I of this opinion.
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, 299 Conn. 447, 454, 10 A.3d 942 (2011) (“ [notwithstanding the defendant’s failure to preserve [his jury instruction claim] at trial, our interpretation of the kidnapping statutes in [State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008)] may be applied to the present case because of the general rule that judgments that are not by their terms limited to prospective application are presumed to apply retroactively ... to cases that are pending” [internal quotation marks omitted]). Our Supreme Court in .DeJesus did not limit its judgment to prospective application, and, in fact, our appellate courts have applied the DeJesus propensity exception to pending cases on a number of occasions. See, e.g., State v. Johnson, supra, 289 Conn. 455-57; State v. L.W., 122 Conn. App. 324, 330-38, 999 A.2d 5, cert. denied, 298 Conn. 919, 4 A.3d 1230 (2010). Although in this case the defendant’s initial direct appeal was dismissed as untimely, his right to appeal from the judgment of conviction and the time period within which he had to file the appeal were restored pursuant to an agreement in connection with his habeas petition. Therefore, this case was pending when DeJesus was decided, and the rule enunciated in DeJesus applies retroactively. See State v. Thompson, 118 Conn. App. 140, 154-55 and 154 n.7, 983 A.2d 20 (2009), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010).
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.