Opinion
The defendant, Anthony L. Favoccia, Jr., appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). 1 He claims that the trial court abused its discretion in permitting the state to offer certain expert testimony that allegedly bolstered the credibility of the victim in the present case. We agree and, accordingly, reverse the judgment of the trial court.
From the evidence adduced at trial, the jury reasonably could have found the following facts. The events underlying the defendant’s conviction occurred in the fall of 2005 and the summer of 2006. At that time, the victim, D, was under sixteen years of age. 2 Following the divorce of her parents when she was three years old, the victim resided with her mother, S. The victim regularly spent weekends with her father, R, pursuant to a court approved visitation schedule.
The defendant was a longtime friend of R, whom the victim had known since early childhoоd as “Uncle Tony.” During one of her weekend visits with R in the fall of 2005, the defendant spent the night at R’s residence. R worked an overnight shift as a 911 operator that evening. After R departed the residence and his girlfriend, M, had gone to bed, the defendant entered the victim’s bedroom and lay next to her. The defendant kissed her neck and touched her back, stomach, upper legs and buttocks.
A second incident involving the defendant and the victim occurred in the summer of 2006, during another weekend visit at R’s residence. On that particular evеning, the defendant was present when R, a volunteer firefighter, left the residence to respond to a fire. At that time, the victim took a shower and then retreated to her bedroom robed in a towel. After she closed the door, the defendant suddenly entered the room. As the victim testified, “he [got] on top of me and started kissing me on my neck . . . well, first it was on the lips and then my neck. . . . [H]e was on top of me, my towel had started to come off ... I guess because of being on top of me, and it was not a relatively big towel, and he was . . . touching on my sides and everything and then . . . after maybe five, ten minutes, I told him that I needed to get dressed and that he needed to leave, so he had to get off of me.” The defendant complied with her request. The victim did not report the incident to her parents but did inform J and B of the encounter, who again encouraged the victim to report the incident to her mother. The victim falsely assured her friends that she had done so.
One yeаr later, S finally learned of the incidents involving her daughter and the defendant. On that evening in late June or early July, 2007, S overheard the victim, J and B talking about a recent incident in which the defendant attempted to “[look] down [the victim’s] shirt . . . .” J then recounted to S the details of the victim’s two encounters with the defendant in the fall of 2005 and summer of 2006, and the victim began to cry. Shocked, S took the victim, J and B to the Stratford police department to report the incidents.
The defendant thereafter was arrested and charged, by amended information dated May 29, 2008, with one count of sexual assault in the second degree in violation
of General Statutes (Rev. to 2005) § 53a-71 (a) (l),
3
one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a) (l),
4
and two counts of risk of injury to a child in violation of § 53-21 (a) (2). A jury trial followed. The state’s case included testimony from the victim, J and B, and two exhibits. In addition, the state presented the expert testimony of рsychologist Lisa Melillo. The defense consisted of testimony from R, M and E, the victim’s high school color guard coach, as well as four exhibits. Following the close of evidence, the defendant moved for a judgment of acquittal. The court granted that motion as to the sexual assault in the fourth degree count only, concluding that the state had not proven beyond a reasonable doubt
On appeal, the defendant maintains that the court abused its discretion in permitting the state to offer certain expert testimony that vouched for and bolstered the credibility of the victim. He focuses on four colloquies between the prosecutor and Melillo in which Mel-illo allegedly conveyed to the jury her opinion that the victim had suffered sexual abuse. The state argues that the defendant’s claim is unpreserved in part, that the court did not abuse its discretion in admitting Melillo’s expert testimony and, alternatively, that the defendant has failed to demonstrate harm stemming from any abuse of that discretion. On the particular facts of this case, we agree with the defendant.
I
FACTS
The following additional facts are relevant to our review. Prior to trial, the state disclosed a list of potential witnesses. That disclosure stated in relevant part: “Lisa Melillo [to] testify as to characteristics of children who claim they werе sexually abused.” At trial, the state commenced its case-in-chief with the testimony of the victim, followed by the constancy of accusation testimony of J and B. The state then called Melillo to the witness stand.
That testimony began with a recitation of Melillo’s qualifications. Melillo testified that she is “a nationally certified school psychologist, which is the highest level of certification in the practice of school psychology.” She testified that she had been a full-time school psychologist for twenty-one years. In addition, Melillo had seven years of experience as a forensic interviewer, during which she has conducted “between 150 and 160 interviews . . . .”
6
Melillo attested to her ample training as a forensic interviewer, which involved instruction
with respect to behavioral characteristics of children who claimed to have been sexually abused. Her professional training included participation in the Cor-nerHouse modеl in Minneapolis, Minnesota, the Beyond Finding Words program in Indianapolis, Indiana, and a related program in Huntsville, Alabama, as well as “various trainings” in Connecticut. Melillo testified that she was “very involved in the Finding Words” training program, serving as both trainee and trainer. She explained that Finding Words is “a weeklong program, and part of it is certainly the interview protocol itself, but it’s the whole aspect of child abuse, child sexual abuse, investigation stemming from the role of law enforcement, the role of child protective services, the department of children
Melillo testified that she had not interviewed or spoken with the victim in the present case. Rather, she reviewed certain police reports and a report prepared by Donna Vitulano, her colleague at the Center for Women and Families of Greater Bridgeport, who had conducted a forensic interview with the victim. 7 Melillo testified that she watched the video of that forensic interview twice. 8 In addition, Melillo testified that she had spoken with the prosecutor about the case prior to the commencement of trial. She opined that her testimony at trial was predicated on her review of “the documents, [her] discussions [with the prosecutor] and the DVD.”
In this appeal, the defendant challenges the admission of opinions expressed by Melillo in four separate colloquies with the prosecutor. We detail the pertinent portions of each in turn.
A
First Opinion
The first challenged opinion concerns Melillo’s testimony that the present case involved an accidental disclosure of sexual abuse:
“[The Prosecutor]: . . . What types of disclosures are there?
“[The Witness]: They can be accidental disclosures. They can be purposeful disclosures. . . .
“[The Prosecutor]: . . . What is an accidental disclosure?
“[The Witness]: An accidental disclosure is a situation where a child has decided never to talk about their experiences for various reasons, but, despite the efforts of that child to keep this ... to themselves, it has come out by an accident, by a discovery process outside of themselves.
“[The Prosecutor]: And you mentioned the term purposeful?
“[The Witness]: Purposeful disclosure is exactly what it sounds like. The child has made a conscious decision to tell someone who can stop it or do something about it. . . .
“[The Prosecutor]: Upon your review of the documents in this case and the video that you reviewed . . . would you state for us whether this was an accidental or purposeful disclosure on the part of [the victim]?
“[Defense Counsel]: Objection, Your Honor. . . . [F]or her to express an opinion as to whether it was purposeful or not, I think would run counter ... to someone in her position making a statement about the credibility of a witness in this case, which is prohibited by . . . State v. Grenier,257 Conn. 797 ,778 A.2d 159 (2001), and other cases cited in the opinion, including State v. Ali,233 Conn. 403 , 433,660 A.2d 337 (1995), and talking about a particular alleged victim. This witness should not be allowed to answer questions about the credibility and the definition of what that person is alleged to have done, putting some kind of stamp of approval on it.
“The Court: All right. The objection is overruled. The witness is absolutely not allowed to testify as to credibility, but she is an expert and can render an opinion, and the jury is entitled to give it whatever weight [it] deem[s] appropriate based on her expertise. . . .
“[The Prosecutor]: With respect to your formal review of the documents, and I believe you said you looked at the DVD of [the victim’s forensic] interview, can you render an opinion whether her disclosure was an accidental disclosure or a purposеful disclosure?
“[The Witness]: I can render an opinion. . . . My opinion is, it was an accidental disclosure.
“[The Prosecutor]: Why is that?
“[The Witness]: Okay. When I was reviewing the videotape of [the victim], it was my understanding that she had not wanted to tell someone in a position of authority, a parental, parental figure, what was happening. She had shared it with some girlfriends in confidence, and they said they wouldn’t say anything, which we all know teenagers do .... It was my opinion, as I said before, that it was my understanding that she did not intend to tell, make a purposeful disclosure, and so she shared it with some Mends and it came out by accident.
“[The Prosecutor]: Okay. ... In addition to some of the documents that you reviewed and the DVD that you reviewed, have you had an opportunity before the trial started to speak to me about the case as well?
“[The Witness]: I have.”
B
Second Opinion
The second challenged opinion concerns Melillo’s testimony that the present case involved a delayed disclosure of sexual abuse:
“[The Prosecutor]: Is it an unusual or usual situation that a child would refrain from telling someone in authority about the abuse?
“[The Witness]: It would be—
“[Defense Counsel]: Objection, Your Honor.
“The Court: Overruled. . . .
“[The Witness]: It is my experience [that] it is more typical for them not to share it with somebody who can be in a position to intervene.
“[The Prosecutor]: Is there a term associated with that type of disclosure?
“[The Witness]: There is. . . . It’s called delayed disclosure.
“[The Prosecutor]: Okay. And what is that?
“[The Witness]: Again, we talk about the word disclosure, about it being a report or statement from the child. Oftentimes, we believe that kids just automatically tell, but what we found is, it’s just the opposite. They . . . either delay in reporting it or they never tell at all. So, the process of disclosure ... is not one event. It’s a process. And delayed disclosures are also found out, people report things that have happened in the past to them.
“[The Prosecutor]: And in this particular case, upon reviewing the documentation, as well as the DVD, what is your opinion with respect to whether or nоt [the victim] engaged in this process that you’re talking about, delaying her disclosure?
“[The Witness]: My opinion is [that] she did fit the characteristics of a delayed disclosure.”
Third Opinion
The third challenged opinion concerns Melillo’s testimony that, as a coping mechanism, the victim remained polite and respectful to the defendant following the incidents:
“[The Prosecutor]: Now, also in your training, experience, as well as the literature that exists in the field, is it possible for a child to continue to show signs of respect toward the abuser after the abuse has occurred?
“[The Witness]: Yes, that is very possible.
“[The Prosecutor]: Okay. And why is that?
“[The Witness]: Oftentimes, if a child has made a decision not to tell anybody and wants to keep this within themselves, they have to cope somehow to maintain that, and if they either act differently than what they are typically doing or don’t act in a certain way, that can bring, you know, some suspicion. So, if a person’s conduct, a child’s conduct, is typically respectful and polite to sоmeone, if they should suddenly change, that might arouse suspicion and then being asked questions, sending a flag to somebody, saying, what’s the matter, why aren’t you nice to that person anymore. That is a coping method to accommodate keeping that inside them.
“[The Prosecutor]: And did you see any evidence of that in your review of the documentation and, or, the DVD?
“[Defense Counsel]: Objection, Your Honor. It goes to . . . what’s in the mind of the . . . person who is being talked about, and it reflects—
“The Court: He said documentation as well as the DVD, [defense counsel]. Overruled. She is an expert rendering an opinion, and I’m sure you will be cross-examining her on her opinions.
“[Defense Counsel]: It goes to the credibility issues, Your Honor.
“The Court: It does not, [counsel]. It is an opinion.
“[The Prosecutor]: Miss Melillo? . . .
“[The Witness]: [A]s I viewed the videotape, again ... I saw her talk about how she, you know, was raised to be polite and respectful and wasn’t going to change that behavior ... in a situation like that.”
D
Fourth Opinion
The fourth and final challenged opinion concerns Melillo’s testimony that, as a coping mechanism, the victim attempted to make herself unattractive to the defendant:
“[The Prosecutor]: Have you . . . ever encountered in your dealings as a forensic interviewer, as well as a school psychologist, behavioral issues or behaviors that young ladies may engage in to address issues of their contact with the abuser?
“[The Witness]: Yes, I have. . . .
“[The Prosecutor]: Did you see any examples of this, whether it be by the documentation or the DVD that you viewed?
“[The Witness]: I did see—
“[Defense Counsel]: . . . Objection, Your Honor. There’s an allegation. This case is an allegation. [The prosecutor] is now using the language that I previously objected to. That is an assumption that there was abuse in prior cases and that she’s supposed to be comparing to this case when there’s an allegation and building in a presumption that the allegation is true.
“The Court: Overruled. . . .
“[The Witness]: There are many, I used the word accommodations before. There are many ways that a child or teen can cope. Typically, if a child feels kind of powerless and trapped, they might—particularly with some of the females that I work with at the high school level, have told me, I really just made myself look unattractive. . . . That [is] one of the things they can control—is how they present themselves, their appearance. So, oftentimes, they might try to make themselves look unattractive, hoping that would turn somebody away. Yes, that is a coping mechanism. That is the way of accommodating something, to be able to control a situation that they really can’t control. Similar to what I have said before about changing or not changing a certain behavior to try to cope and survive in a situation.
“[The Prosecutor]: Did you note [the victim’s] examples of that in the documentation or the DVD?
“[The Witness]: I did.”
For convenience, we refer in this opinion to the aforementioned colloquies as the first, second, third and fourth opinions, respectively, unless indicated otherwise.
II
PRESERVATION
Before considering the merits of the defendant’s claim, we first address the state’s contention that it was “not entirely preserved.” Our rules of practice require that a party “intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief ... or state the question distinctly to the judicial authority on the record before such party’s closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. . . .” Practice Book § 5-2; see also Practice Book § 5-5 (“[w]henever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he or she desires it to go upon the record, before any discussion or argument is had”). It is axiomatic that issues not properly raisеd before the trial court ordinarily will not be considered on appeal. Practice Book § 60-5; see also
State
v.
Faison,
The sine qua non of preservation is fair notice of the claim to the trial court. As our Supreme Court repeatedly has observed, “the essence of the preservation requirement is that
fair notice
be given to the trial court of the party’s view of the governing law . . . .” (Emphasis in original.)
State
v.
Ross,
The state argues that the defendant’s claim regarding the admission of Melillo’s expert testimony is unpre-served with respect to Melillo’s second and fourth opinions. Although the state cоncedes that the claim properly was preserved with respect to the first and third opinions, we nevertheless examine the defendant’s initial objection
It is undisputed that the defendant objected to all four of the opinions now challenged on appeal. At the same time, the state emphasizes that the defendant failed to expressly predicate his objections to the second and fourth opinions on the credibility basis earlier advanced, thereby precluding our review thereof. We disagree. The purpose of the preservation requirement is to provide fair notice to the trial court and the opposing party of a question of law that may form the subject of an appeal. The transcript of the defеndant’s initial objection to Melillo’s testimony and the court’s response thereto amply demonstrates that such notice was provided in the present case. To the extent that the defendant failed to assert more clearly the particular objection he now pursues on appeal regarding the second and fourth opinions, it cannot be said to be part of a trial strategy. Cf.
State
v.
Fabricatore,
Ill
IMPROPRIETY
The defendant contends the court abused its discretion in admitting portions of Melillo’s expert testimony. He claims that the challenged testimony constituted an indirect assertion on the victim’s credibility.
We begin by noting the standard by which we review the trial court’s determinations concerning the admissibility of evidence. “The trial court’s ruling on eviden-tiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicаble to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . .
“The determination of the credibility of a witness is solely the function of the jury. ... It is the trier of fact which determines the credibility of witnesses and the weight to be accorded their testimony. . . . Expert witnesses cannot be permitted to invade the province of the juiy by testifying as to the credibility of a particular witness or the truthfulness of a particular witness’ claims. . . . An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. . . . Experts can [however] sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass. . . .
“Additionally, in cases that involve allegations of sexual abuse of children . . . expert testimony of reactions and behaviors common to victims of sexual abuse is admissible. . . . Such evidence assists a jury in its determination of the victim’s credibility by explaining the typical consequences of the trauma of sexual abuse on a child. ... It is not permissible, however, for an expert to testify as to his opinion of whether a victim in a particular case is credible or whether a particular victim’s claims are truthful. ... In this regard, we have found expert testimony stating that a victim’s behavior was generally consistent with that of a victim of sexual or physical abuse to be admissible, and have distinguished such statements from expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse. . . .
“[E]ven indirect assertions by an expert witness regarding the ultimate issue in a case can serve inappropriately to validate the truthfulness of a victim’s testimony. . . . Finally, in cases in which an expert witness reaches a conclusion on the ultimate issue in part based uрon statements made by the victim . . . Connecticut case law has previously recognized the general rule of law that the expert is necessarily making a determination about the
The defendant argues that Melillo’s opinions amounted to indirect assertions on the victim’s credibility, which are not permitted under Connecticut law. See
State
v.
Grenier,
supra,
The crux of the defendant’s appeal is the import of those concluding portions of the four challenged colloquies between the prosecutor and Melillo. The state maintains that Melillo testified simply that the victim’s behaviors were consistent with that of other victims of sexual abuse. The state further emphasizes that the prosecutor never asked Melillo to render an opinion as to whether the victim was credible but merely asked her to evaluate the victim’s behavior. As to the state’s latter point, we note that opinions other than literal statements as to credibility may constitutе improper expert testimony. As the court recognized in Grenier, expert testimony that “was not a literal statement of [the expert’s] belief in [the victim’s] truthfulness” nevertheless may possess “the same substantive import and could be perceived as a conclusive opinion that [the victim] had testified truthfully.” (Internal quotation marks omitted.) Id.
The state’s principal contention, which is that Melillo simply testified that the victim’s behaviors were consistent with that of other victims of sexual abuse, implicates the “critical distinction between admissible expert testimony on general or typical behavior[al] patterns of minor victims and inadmissible testimony directly concerning the particular victim’s credibility.”
State
v.
Spigarolo,
Each of the four colloquies giving rise to the challenged opinions begins with a discussion of a general behavioral characteristic of sexually abused children. In that preliminary testimony, Melillo explained that victims of sexual abuse may delay their disclosure thereof, may accidentally make such a disclosure, may remain polite and respectful toward the perpetrator as a coping mechanism and likewise may attempt to make
themselves unattractive to the perpetrator as a coping mechanism. Such expert testimony plainly is permissible. See
State
v.
Iban C.,
supra,
The Supreme Court has held that “where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based on inconsistency, incompleteness or recantation of the victim’s disclosures pеrtaining to the alleged incidents, the state may offer expert testimony that seeks to demonstrate or explain
in general terms
the behavioral characteristics of child abuse victims in disclosing alleged incidents.” (Emphasis added.)
State
v.
Spigarolo,
supra,
Accordingly, whether the expert opined on the particular victim’s behavior is a paramount consideration in evaluating challenged expert testimony. For example, in
State
v.
Freeney,
supra,
When Melillo went beyond a general discussion of characteristics of sexual abuse victims and offered opinions, based on her review of the videotaped forensic interview and other documentation, as to whether this particular victim in fact exhibited the specified behaviors, her testimony crossed the line of permissible expert opinion. In contrast to the expert in
Yusuf,
Mel-illo stated her opinion as to whether the victim in fact made an accidental disclosure of her sexual encounters with the defendant and whether the victim had delayed that disclosure. Melillo opined on whether the victim, as mechanisms of coping with sexual abuse, attempted to make herself unattractive to the defendant and remained polite and respectful toward him. During her testimony at trial and in her forensic interview that was before the jury, the victim made such allegations. As a
result, Melillo’s expert opinion confirming those allegations “necessarily endorsed the victim’s credibility, and functioned as an opinion as to whether the victim’s claims were truthful.”
State
v.
Iban C.,
supra,
The impropriety is compounded by the fact that Mel-illo expressly predicated her testimony on, inter alia, her review of the victim’s videotaped forensic interview.
11
When an expert bases a conclusion in part on statements made by the victim, that expert is making a determination about the victim’s credibility.
State
v.
Iban C.,
supra,
The challenged opinions also are improper in that they were not beyond the ken of the average juror. Melillo properly explained to the jury four specified
characteristics of abuse victims, of which the victim already had made detailed allegations in her testimony. For example, the victim stated in the forensic interview аnd testified at trial that she “tried to make [herself] look less attractive. . . . Poor hygiene, wearing clothes that didn’t fit [her] right, just anything to make [her] not look attractive. ... So maybe [the defendant] wouldn’t [sexually assault her] again . . . .” In her subsequent expert testimony, Melillo stated that “[t]here are many, I used the word accommodations before. There are many ways that a child or teen can cope. Typically, if a child feels kind of powerless and trapped, they might—particularly with some of the females that I work with at the high school level, have told me, I really just made myself look unattractive. . . . That [is] one of the things they can control—is how they present themselves, their appearance. So, oftentimes, they might try to make themselves look unattractive, hoping that would turn somebody away. Yes, that is a coping mechanism. That is a way of accommodating something, to be able to control a situation that they really can’t contrоl. Similar to what I have said before about changing or not changing a certain behavior to try to cope and survive in a situation.” “When inferences or conclusions are so obvious that they could be as easily drawn by the jury as the expert from the evidence, expert testimony regarding such inferences is inadmissible.”
State
v.
Iban C.,
supra,
Had the state stopped after offering Melillo’s expert testimony explaining “in general terms the behavioral
characteristics of child abuse victims”;
State
v.
Spigarolo,
supra,
IV
HARM
That conclusion does not end the inquiry. The remaining question is whether admission of the improper testimony constituted harmful error. “[T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury’s verdict was substantially swayed by the error. . . . [I]t expressly requires the reviewing court to consider the effect of the erroneous
In
Grenier,
the Supreme Court considered the following factors in conducting its harmlessness analysis. They were: (1) “[f]irst, and most important, the state’s case rested entirely on [the victim’s] credibility”; (2) “[t]he state neither introduced physical or medical evidence of abuse nor presented any eyewitness testimony
other than that of [the victim]”; (3) “[t]he state’s case consisted of [the victim’s] testimony, the constancy of accusation testimony of several witnesses and the [expert] testimony”; (4) the defendant testified and denied the allegations of abuse; (5) the improper expert testimony “struck at the heart of the central—indeed, the only—issue in the case, namely, the relative credibility of [the victim] and the defendant”; (6) “inasmuch as [the victim’s] version of the events provided the only evidence of the defendant’s guilt, the state’s case was not particularly strong”; and (7) “[t]he testimony that the state properly adduced to underscore the expert qualifications [of its witnesses] . . . increased the likelihood that the jury would rely on their evaluations of the victim’s credibility.”
State
v.
Grenier,
supra,
Other than the fact that the defendant did not testify at trial, 12 the Grenier factors all are met in the present case. As the state neither introduced physical or medical evidence of abuse, nor presented any eyewitness testimony other than that of the victim, the case rested primarily on her credibility and, thus, was not particularly strong. Furthermore, the improper testimony concerned that central issue. Whereas Grenier involved only one indirect assertion by each expert as to the complainant’s credibility, the expert in this case made four such assertions. Finally, the ample evidence of Melillo’s expert qualifications at the outset of her testimоny made it probable that the jury would rely on her indirect assertions that the victim was credible.
The state nevertheless insists that the fact that the jury deadlocked on the sexual assault in the second degree count indicates that the jury did not rely on Melillo’s testimony. As it states in its appellate brief, “[h]ad the jury interpreted Melillo’s opinions in the way that the defendant claims, it would have at least reached a decision on that count.” We disagree. Our Supreme Court has observed that “reports of jury deadlock indicate that the fact finder itself did not view the state’s
Finally, it is not insignificant that the impropriety before us implicates the defendant’s constitutional right to a fair trial. As we have noted, “[c]entral to a defendant’s right to a fair trial is the right to have issues of fact and credibility decided by the jury.”
State
v.
Vargas,
Because we lack a fair assurance that the improperly admitted expert testimony did not substantially affect the verdict, we conclude that the defendant has satisfied his burden of demonstrating harm. Evaluating the victim’s credibility was the task for the finder of fact, not Melillo as an expert witness. See
State
v.
Iban C.,
supra,
The judgment is reversed and the case is remanded to the trial court for a new trial.
In this opinion the other judges concurred.
Notes
General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts ... of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony . . . .”
In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identity the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
General Statutes (Rev. to 2005) § 53a-71 (a) provides in relevant part: “A person is guilty of sexuаl assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”
General Statutes (Rev. to 2005) § 53a-73a (a) (1) provides in relevant part that a person is guilty of sexual assault in the fourth degree when “[s]uch person intentionally subjects another person to sexual contact who is . . . (A) under fifteen years of age . . .
The defendant’s probation was subject to numerous special conditions, including registration as a sexual offender.
In her testimony, Melillo explained that a forensic interview “is a structured or semistructured interview process that is neutral, objective and fact-finding. It’s to have a child, whetherit be a child or adolescent, sit down with an interviewer who is trained to ask nonleading questions to be able to report their experiences or abuse.”
Vitulano’s report was not offered into evidence at trial.
The video was introduced into evidence by the state. Following Melillo’s testimony, the jury viewed that video as the concluding part of the state’s case-in-chief.
Put another way, the defendant reasons that the prosecutor purposefully employed a syllogistic approach that began with a major premise—that sexual abuse victims exhibit a certain behavioral characteristic. He then proceeded to a minor premise, in which Melillo opined that she observed that characteristic in this particular victim. Left unstated is the conclusion that the victim in fact suffered sexual abuse.
At oral argument before this court, the state’s attorney was asked if he was aware of any similar case in which the expert was asked to opine as to the particular victim in that case. He answered in the negative.
The forensic interview of the victim conducted by Melillo’s colleague at the Center for Women and Families of Greater Bridgeport was more than one hour long. Melillo testified that she viewed the video of that interview twice prior to trial.
The defendant possessed a constitutional right not to testify at trial. That right “is rooted in the privilege against self-incrimination under both the federal and the state constitutions. The fifth amendment to the United States constitution provides that no person shall be compelled in any criminal case to be a witness against himself. That provision acts as a restraint upon the individual states as well as the federal government under the fourteenth amendment to the United States constitution.
Malloy
v.
Hogan,