STATE OF CONNECTICUT v. JOSEPH B.*
(AC 40847)
Alvord, Moll and Bear, Js.
Argued September 26, 2018-officially released January 15, 2019
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Syllabus
Convicted of the crimes of sexual assault in the first degree, sexual assault in the third degree, and risk of injury to a child in connection with his alleged sexual abuse of the minor victim, the defendant appealed. On appeal, he claimed, inter alia, that the trial court erred by denying his motion for a bill of particulars because the substitute information was overly broad and vague, which deprived him of notice of the nature of the charges brought against him and his right to present a defense. Held:
- The trial court did not abuse its discretion in denying the defendant‘s motion for a bill of particulars: the defendant was not prejudiced by the court‘s denial of his motion, as he had access to a copy of the victim‘s forensic interview, which contained statements of the victim that he claimed gave the state knowledge of more specific dates, the victim testified as to the specific instances at trial as well, and the defendant did not attempt to offer an alibi with regard to the specific instances identified by the victim or request a continuance to formulate an alibi; moreover, the defendant failed to demonstrate how he would have prepared his defense differently had the state charged him in accordance with the victim‘s statements made during her forensic interview.
- The defendant could not prevail in his claim that the trial court improperly admitted evidence that the victim tested positive for a certain sexually transmitted disease: the fact that the victim was diagnosed with a sexually transmitted disease was relevant and probative as to the victim‘s having had sexual contact, and given the victim‘s testimony that the defendant had sexual contact with her when he assaulted her through penile-vaginal penetration and her medical records, which provided that she was not sexually active, her diagnosis logically tended to prove that she had sexual contact with an individual, and the evidence that she had the requisite contact only with the defendant made it more likely that the defendant engaged in the conduct with which he was charged; moreover, the evidence pertaining to the victim‘s diagnosis was not unduly prejudicial, as the victim testified that the defendant sexually assaulted her before the jury heard testimony regarding her diagnosis, the testimony of the victim‘s mother regarding the victim‘s change in behavior corroborated the victim‘s report of the assault, the evidence pertaining to the victim‘s diagnosis was consistent with other evidence presented by the state, and the trial court gave the jury a specific instruction, which it was presumed to have followed, not to consider the evidence of the victim‘s diagnosis for the purpose of determining whether it was the defendant who infected the victim.
- The trial court did not abuse its discretion in denying the defendant‘s motion to preclude evidence of certain text messages from the defendant to the victim‘s mother:
- The defendant could not prevail in his claim that the text messages should have been precluded as untimely because the prosecutor knew or should have known of their existence prior to their disclosure at the start of trial; the prosecutor complied with discovery requirements by timely disclosing the evidence to the trial court and defense counsel on the same morning that the victim‘s mother informed her of the messages, and although the defendant relied on certain reports in support of his claim that the prosecutor should have been aware of the text messages, those reports did not specify the content of any text messages or contain information that there was text message evidence of the defendant‘s offerings of gifts or money.
- The defendant‘s claim that the evidence of text messages should have been precluded as a sanction under the applicable rule of practice (
§ 40-5 ) was unavailing; because the prosecutor timely disclosed evidence of the text messages, which the defendant conceded that he sent to the victim‘s mother, the prosecutor complied with discovery requirements
and, therefore, it was unnecessary for the trial court to impose the sanctions provided by
Procedural History
Substitute information charging the defendant with two counts of the crime of sexual assault in the first degree, two counts of the crime of sexual assault in the third degree, and six counts of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Kavanewsky, J; verdict and judgment of guilty of one count of sexual assault in the first degree, one count of sexual assault in the third degree, and four counts of risk of injury to a child, from which the defendant appealed. Affirmed.
James B. Streeto, senior assistant public defender, with whom was Zachary Peck, former certified legal intern, for the appellant (defendant).
Nancy L. Chupak, senior assistant state‘s attorney, with whom, on the brief, were John C. Smriga, state‘s attorney, and Ann P. Lawlor, senior assistant state‘s attorney, for the appellee (state).
Opinion
The jury reasonably could have found the following facts. From 2010 to 2013, the defendant lived with his wife in the third floor apartment of a multi-family home on Jefferson Street in Bridgeport. The victim, A, who is the defendant‘s biological granddaughter, was five years old in 2010 and lived with her mother and her brother in the first floor apartment at that same address. A went upstairs to the defendant‘s apartment almost every day after she got home from school. On more than one occasion, when the defendant‘s wife was not home, the defendant touched A‘s chest, vagina, and lower back while A‘s clothes were off. A specifically remembered one instance in which she was lying on the defendant‘s bed and he was going to touch her when they heard her cousin coming up the stairs. In addition, on a different occasion, the defendant asked A if she could bring over her friend, who lived across the street, so that he could do the same to her friend.
In February, 2013, the defendant moved to Birch Drive in Stratford. A‘s mother brought A to the defendant‘s apartment two weekends per month, during which A stayed overnight, in order for the defendant and the defendant‘s wife to watch A while A‘s mother worked. While the defendant lived at this address, he repeatedly engaged in penile-vaginal and penile-anal intercourse with A. Some instances of penetration occurred during the summer between A‘s third and fourth grade school years. During that summer, the defendant also asked A to place her hand on his penis a few times, and although she refused at first, she eventually complied. When A started fourth grade, her behavior changed at school, and she became physically aggressive on two different occasions, which was out of character for A. A also experienced three incidents of bedwetting.2
In November, 2014, when A was nine, she was watching television at the defendant‘s apartment when she heard the defendant call her name. She went into his room, where he told her to take off her clothes and to lie on the bed. The defendant then engaged in penile-vaginal intercourse with A.3 The defendant told A that if she told anyone, he would go to jail, and asked, “do you want your grandfather to go to jail[?]”
A few weeks later, A wrote a note to her mother disclosing that the defendant had been sexually assaulting her.4 A‘s mother immediately contacted the police, as well as A‘s doctor. On December 2, 2014, A was examined by Sarah Donahue, a nurse practitioner who worked at A‘s doctor‘s office. A told Donahue that the defendant sexually assaulted her through penile-vaginal penetration in excess of twenty-five times. During the physical examination, Donahue did not observe any signs of trauma,5 but
At the Yale Child Sexual Abuse Clinic, A was examined by Rebecca Moles, a pediatrician specializing in issues of child abuse. Dr. Moles reported that A had “normal appearing genital anatomy” and that the anatomy, including her hymen and the tissue surrounding the outside of the vagina, appeared “normally formed.”6 During the examination, Dr. Moles also observed that A had vaginal discharge, which she recognized to be a symptom of trichomonas vaginalis, a sexually transmitted disease. After testing A, Dr. Moles confirmed that A was infected with trichomonas vaginalis.
In the beginning of December, 2014, after A‘s mother reported the sexual abuse to the police, the defendant sent several text messages to A‘s mother. In these text messages, the defendant told A‘s mother that he had money for her, A, and A‘s brother. The defendant also sent a text message to A‘s mother stating that he would buy her a gift if she would accept it.
On December 10, 2014, Detective William Perillo of the Stratford Police Department interviewed the defendant at the defendant‘s home. When Detective Perillo began to question the defendant, he asked whether Detective Perillo had any DNA evidence. In addition, he told Detective Perillo that A was not a liar, but that he was not involved in what they were talking about. On January 2, 2015, Detective Perillo arrested the defendant.
A jury trial followed, at the conclusion of which the defendant was found guilty of one count of sexual assault in the first degree, one count of sexual assault in the third degree, and four counts of risk of injury to a child.7 The court rendered judgment in accordance with the jury‘s verdict and imposed a total effective sentence of eighteen years imprisonment and lifetime sex offender registration. This appeal followed. Additional facts will be set forth as necessary.
I
The defendant claims that the trial court abused its discretion when it denied his motion for a bill of particulars. Specifically, the defendant asserts that the substitute information was overly broad and vague, depriving him of notice of the nature of the charges brought against him and his right to present a defense. He argues that the state should have narrowed the time periods in the information using A‘s forensic interview. He claims the court‘s denial of his motion for a bill of particulars prejudiced his defense. We disagree that the denial of the motion prejudiced the defendant.
The following additional facts and procedural history are relevant to our resolution
The state filed a long form information on February 4, 2015, charging the defendant with sexual assault in the first degree, sexual assault in the third degree, and risk of injury to a child, arising out of conduct that occurred in June, 2012, at Birch Drive in Stratford.
On April 12, 2016, the state filed a ten count substitute information. The information charged the defendant with sexual assault in the first degree, sexual assault in the third degree, and two different counts of risk of injury to a child for conduct that occurred “on diverse dates from approximately 2010 to 2012, at or near Jefferson Street” in Bridgeport. In addition, the substitute information charged the defendant with two different counts of risk of injury to a child for conduct that occurred “on diverse dates, from approximately 2010 to 2012, at or near Hollister Avenue”10 in Bridgeport. The defendant was also charged with sexual assault in the first degree, sexual assault in the third degree, and two different counts of risk of injury to a child for conduct occurring “on diverse dates during 2013 and 2014, at or near . . . Birch Drive” in Stratford.
On April 18, 2016, the defendant filed a motion for a bill of particulars, requesting that the court order the state to include the date, time, particular location, and manner of the commission of each alleged count. In his motion, the defendant argued that (1) it was impossible to determine if the offenses charged in the substitute information stemmed from a minimum of three incidents or a maximum of ten incidents, (2) alleging “diverse dates” in each count “incorrectly allows the [s]tate to combine incidents from different dates to make up elements of the crime,” and (3) “[e]ach count has a time period of approximately
The defendant argued that the substitute information was insufficient to enable him to prepare a defense. The court scheduled a hearing on this motion for April 19, 2016.
On April 19, 2016, before the hearing on the motion for a bill of particulars, the state filed the operative substitute information. The first two counts of the ten count substitute information charged the defendant with risk of injury to a child for conduct that occurred “during 2010, at or near . . . Holly Street” in Bridgeport. Counts three through six charged the defendant with two different counts of risk of injury to a child, sexual assault in the first degree, and sexual assault in the third degree for conduct that occurred “on or about 2010 through 2013, at or near . . . Jefferson Street” in Bridgeport. Counts seven through ten charged the defendant with sexual assault in the first degree, two different counts of risk of injury to a child, and sexual assault in the third degree for conduct occurring “on or about 2013 through 2014, at or near . . . Birch Drive” in Stratford.
At the hearing, the defendant acknowledged that the state‘s substitute information filed earlier that day resolved some of his issues with the previous substitute information, particularly with the deletion of the “diverse dates” language from each count. The defendant maintained, however, that he still did not know the number of alleged incidents, which, he argued, “puts the defense at a disadvantage because the [s]tate can then basically form their closing argument and form their evidence to the pleadings in various ways.” In addition, the defendant argued that the 2010 through 2013 time frame, alleged in counts seven through ten, made it difficult to “fashion any kind of alibi defense or recollection defense in terms of factual inconsistencies that [the defendant] could provide pertaining to those incidents . . . .” At the conclusion of the hearing, the court determined that the substitute information filed that day was legally sufficient and denied the defendant‘s motion for a bill of particulars. Specifically, the court concluded that the substitute information narrowed the time periods of the offenses and “clearly track[ed]” the defendant‘s residences where the offenses were alleged to have occurred. In addition, the court noted that the defendant had the benefit of the full disclosure to which he was entitled, including police reports and statements. Lastly, the court concluded that it did not know how A would testify and that her testimony might eliminate some of the defendant‘s concerns.
At trial, after the state presented its case, the defendant renewed his motion for a bill of particulars. He again argued that he did not know how many incidents were alleged to have occurred based on the state‘s charges. In response, the state argued that A “testified
very clearly about multiple incidents of sexual abuse at the hands of her grandfather.” The court denied the defendant‘s motion.
The defendant‘s wife subsequently testified on the defendant‘s behalf. She initially testified that A was never left at home alone with the defendant. She later testified, however, that she had been away from the home for about two months in 2014. In addition, the defendant‘s wife stated that there were a few days during the summer of 2014, in between A‘s third and fourth grade school years, when the defendant watched A by himself. The defendant‘s wife also testified that A was left home alone with the defendant on the morning of November 2, 2014, when she went to church without A.11
In its final charge to the jury, the court instructed: “[T]here may have been testimony from [A] that the defendant committed these crimes against her more than once during the time periods stated in these counts, although she could not specify exact dates. The [s]tate is not required to prove the exact date of any offense so long as it proves beyond a reasonable doubt that a crime, that is, all the elements of the crime, did occur at least once on the same single occasion during the time period covered in a particular count.”
We begin by setting forth the standard of review and the legal principles that guide our analysis of this claim. “[T]he denial of a motion for a bill of particulars is within the sound discretion of the trial court and will be overturned only upon a clear showing of prejudice to the defendant. . . . A defendant can gain nothing
from [the claim that the pleadings are insufficient] without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information.” (Citations omitted; internal quotation marks omitted.) State v. McDougal, 241 Conn. 502, 521-22, 699 A.2d 872 (1997); see also State v. Spigarolo, 210 Conn. 359, 385, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). “The defendant has the burden of showing why the additional particulars were necessary to the preparation of his defense.” (Internal quotation marks omitted.) State v. Vumback, 263 Conn. 215, 221, 819 A.2d 250 (2003).
“The
The defendant claims that he was prejudiced by the court‘s denial of his motion for a bill of particulars. It is undisputed, however, that, at the time of the hearing on the motion, the defendant had access to a copy of A‘s forensic interview. “[T]his court has on numerous occasions adverted to sources extrinsic to the specific count or information to determine whether the defendant was sufficiently apprised of the offense charged. See, e.g., State v. Frazier, [194 Conn. 233, 237, 478 A.2d 1013 (1984)] (defendant sufficiently apprised where he had access to state‘s file, police reports and demonstrative evidence); State v. Beaulieu, 164 Conn. 620, 626, 325 A.2d 263 (1973) (information supplied by another count, state‘s attorney and court); see also State v. Moffett, 38 Conn. Supp. 301, 310, 444 A.2d 239 (1981) (defendant‘s access to prosecution file).” State v. Spigarolo, supra, 210 Conn. 384.
In State v. Vumback, supra, 263 Conn. 216-17, our Supreme Court concluded that the defendant had failed to demonstrate prejudice from the trial court‘s denial of his motion for a bill of particulars. The defendant was charged with repeatedly sexually abusing and attempting to sexually abuse a child victim on “[diverse] dates between approximately June, 1990 and July, 1996 . . . .” (Internal quotation marks omitted.) Id., 219. Although the operative information alleged that the offenses occurred over a six year period, the state had previously filed four informations alleging more specific time frames, such as between July 1 and July 10, 1996, between July 5 and July 10, 1996, and between July 5 and July 15, 1996. Id., 224. In addition, the victim had reported that two instances of sexual abuse occurred two weeks before, and two days before, her physician appointments. Id., 224. The victim testified at trial that no one ever had asked her to pinpoint the specific dates on which the sexual assaults by the defendant occurred. Id., 224. For these reasons, the court concluded that the state did not use its best efforts to provide a more narrow time frame to the defendant. Id., 224-25. Accordingly, the court determined that the trial court abused its discretion by denying the defendant‘s motion for a bill of particulars. Id., 227.
The court in Vumback concluded, however, that although the trial court abused its discretion by denying the defendant‘s motion for a bill of particulars, the defendant had failed to demonstrate prejudice from the court‘s decision. Id.. In reaching its conclusion, the court found that the defendant did not demonstrate that the more specific dates that the state possessed were necessary to his defense. Id., 228-29. Specifically, the court noted that, although the defendant introduced general alibi evidence that he was often working or taking classes, after the victim testified about two specific dates of abuse, the defendant did not attempt to offer an alibi with regard to them or request a continuance to formulate an alibi. Id., 229-30. Most significantly, the defendant was aware of the state‘s prior informations and had access to the state‘s file before trial, which included the reports containing the dates he claimed were missing from the information. Id., 228-29.
Although we recognize
that the defendant claims gave the state knowledge of more specific dates. A testified as to these specific instances at trial as well. Yet, like the defendant in Vumback, the defendant here did not attempt to offer an alibi with regard to the specific instances identified by A or request a continuance to formulate an alibi. For example, with regard to the penile-vaginal intercourse in November, 2014, the defendant did not present alibi evidence. Instead, the defendant admitted that he had been alone with A while his wife went to church but denied the allegations of sexual abuse. In addition, with regard to the summer between A‘s third and fourth grade school years, the defendant offered general alibi evidence that he worked “every day,” but he admitted that he did not work on Sundays. This evidence is consistent with A‘s testimony that the defendant sexually assaulted her when the defendant‘s wife was at church and A was left alone with the defendant. The defendant did not attempt to offer alibi evidence for a single Sunday of that summer.
Furthermore, the defendant in the present case failed to demonstrate how he would have prepared his defense differently had the state charged him in accordance with A‘s statements during her forensic interview. “A defendant can gain nothing from [the claim that the pleadings are insufficient] without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. . . . To establish prejudice, the defendant must show that the information was necessary to his defense, and not merely that the preparation of his defense was made more burdensome or difficult by the failure to provide the information.” (Internal quotation marks omitted.) State v. Vlahos, 138 Conn. App. 379, 396-97, 51 A.3d 1173 (2012), cert. denied, 308 Conn. 913, 61 A.3d 1101 (2013). Under the circumstances, the defendant has failed to establish that the denial of his motion for a bill of particulars prejudiced his defense on the merits.
II
The defendant next claims that the trial court improperly admitted evidence that A tested positive for trichomonas vaginalis. Specifically, the defendant argues that the evidence was irrelevant, or, alternatively, that the evidence was unfairly prejudicial. We disagree.
The following additional facts and procedural history are relevant to our resolution of this claim. In November, 2014, A complained to her mother of vaginal itching. During Dr. Moles’ examination of A, Dr. Moles administered tests for sexually transmitted diseases such as gonorrhea, chlamydia, HIV, syphilis, and hepatitis. Upon observing irritation, tenderness, and discharge during her examination of A‘s vagina, Dr. Moles also tested A for trichomonas vaginalis. The tests came back positive for trichomonas vaginalis. The defendant was
never tested to determine whether he had trichomonas.
On April 20, 2016, the defendant filed a motion in limine, requesting the court to exclude any testimony and evidence regarding
The court heard arguments regarding the defendant‘s motion in limine on April 26, 2016, the second day of trial. The defendant argued that there was “no evidence . . . to show that [the defendant] was the individual who was responsible for A contracting this sexually transmitted disease,” and that, therefore, “the link in making that relevant is missing . . . .” In addition, he argued that the evidence was prejudicial.
The court denied the defendant‘s motion in limine. The court concluded that evidence of A‘s medical diagnosis of trichomonas vaginalis was “highly probative” and “very relevant to establish that the child had sexual contact . . . or was engaged in sexual penetration with another person. And that‘s part of the state‘s burden of proof, to prove that that fact did occur.” The court further explained that it “[a]greed that there‘s nothing about [the defendant] in terms of absolute linkage there,” but that the jury could make inferences from the testimony, because A testified that it was the defendant who sexually abused her. The court also indicated that it would give a limiting instruction regarding the medical diagnosis of A‘s trichomonas vaginalis to inform the jury that the evidence was not being admitted to prove that the defendant gave A the disease, and that it, as the finder of fact, could make reasonable inferences from the medical finding and from A‘s testimony.
Dr. Moles subsequently testified about A‘s diagnosis of trichomonas vaginalis. She stated that “trichomonas is a sexually transmitted infection . . . that is transmitted sexually” and that trichomonas vaginalis is most commonly transmitted through penile-vaginal penetration. She testified that there have been reports about trichomonas vaginalis being transmitted when mothers give birth to children; however, she explained that even if a child is initially infected in such a manner, the infection clears within the first year of the child‘s life.12 She further testified that trichomonas vaginalis is uncommon in children, “so uncommon . . . that it is listed in the guidelines from the American Academy of Pediatrics . . . as a reportable condition. So, meaning, if it‘s diagnosed in a child, it is recommended . . . that the pediatrician then report concerns of sexual abuse based on that infection, report those concerns to Department of Children [and] Families, to police, depending on the jurisdiction.”
Immediately following Dr. Moles’ testimony, the court gave the following limiting instruction to the jury: “[T]he trichomonas diagnosis . . . is being admitted only for the purpose-if you find it credible, only for the purpose of your consideration of whether or not [A] had sexual contact with another person. It‘s not being admitted for the purpose of the conclusory determination of whether or not it was [the defendant] who was responsible for the trichomonas. I‘m admitting it only for the purpose of your consideration of whether or not the child had sexual contact, period. And you can draw any reasonable inferences [from] that as you would . . . .” In addition, in its final charge to the jury, the court instructed: “I said that evidence that [A] was diagnosed with a sexually transmitted disease was admitted for your consideration as to whether [A] had sexual contact with another person.
We begin by setting forth the standard of review and legal principles that guide our analysis of this claim. It is well established that “[t]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court‘s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court‘s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court‘s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Anwar S., 141 Conn. App. 355, 374-75, 61 A.3d 1129, cert. denied, 308 Conn. 936, 66 A.3d 499 (2013).
This claim is controlled by this court‘s decision in Anwar S.13 In Anwar S., a child victim of sexual assault was diagnosed with chlamydia. Id., 359. The defendant claimed that evidence of the victim‘s chlamydia diagnosis was irrelevant because no evidence was offered to connect him to the transmission of the disease. Id., 374. This court held that the evidence was relevant and probative as to the victim‘s having had sexual contact. Id., 375. This court determined that whether the defendant sexually assaulted the victim was a disputed, material issue of fact. Id.. It further explained that expert testimony at trial provided that chlamydia is most commonly transmitted through sexual contact, and that the victim testified that the defendant had sexual contact with her when he assaulted her. Id.. Therefore, this court concluded that the victim‘s diagnosis “logically tended to prove that she had sexual contact with an individual . . . [and] evidence that she had the requisite contact only with the defendant made it more likely that the defendant engaged in the conduct with which he was
charged.” Id.. Our Supreme Court declined to review this court‘s decision.
Here, A, like the victim in Anwar S., was diagnosed with a sexually transmitted disease.14 This evidence was relevant
The defendant alternatively asserts that evidence pertaining to A‘s trichomonas vaginalis diagnosis was unfairly prejudicial, as it had an adverse effect on him beyond tending to prove that A had sexual contact. See State v. James G., 268 Conn. 382, 399, 844 A.2d 810 (2004) (“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” [internal quotation marks omitted]). Specifically, the defendant claims that the evidence “unduly aroused the emotions, hostility, and sympathy” of the jury by compelling it to speculate that the defendant infected A with trichomonas vaginalis. We are not persuaded.
This court addressed a similar claim in Anwar S. In Anwar S., this court concluded that by the time the jury heard testimony regarding the victim‘s chlamydia diagnosis, the victim had already testified specifically that she was sexually assaulted by the defendant and, therefore, the evidence of chlamydia was not unduly prejudicial because it was consistent with other evidence presented by the state at trial. State v. Anwar S., supra, 141 Conn. App. 376. Similarly, in the present case, A testified specifically that the defendant sexually assaulted her before the jury heard testimony regarding her trichomonas vaginalis diagnosis. See State v. James G., supra, 268 Conn. 400 (evidence less likely to unduly arouse jurors’ emotions when similar evidence
taining to trichomonas vaginalis was consistent with other evidence presented by the state at trial, and we cannot conclude that its admission was unfairly prejudicial to the defendant.
In addition, the court specifically instructed the jury not to consider evidence of the trichomonas vaginalis diagnosis for the purpose of determining whether it was the defendant who was responsible for infecting A. Without evidence to the contrary, we presume that the jury followed these instructions. See State v. Parrott, 262 Conn. 276, 294, 811 A.2d 705 (2003) (“[b]arring contrary evidence, we must presume that juries follow the instructions given them by the trial judge” [internal quotation marks omitted]). For the foregoing reasons, we conclude that the trial court did not abuse its discretion by admitting evidence that A tested positive for trichomonas vaginalis.
III
The defendant‘s last claim is that the trial court improperly admitted evidence of text messages from the defendant to A‘s mother. Specifically, the defendant argues that the court should have precluded this evidence as untimely because the prosecutor who was in charge of the trial knew or should have known of the text messages prior to their disclosure at the start of trial. We disagree.
The following additional facts and procedural history are relevant to our resolution of this claim. On the morning of April 25, 2016, the first day of trial, A‘s mother presented the prosecutor with screenshots of text messages sent December 1, 2, and 5, 2014, from the defendant to her. In these text messages, the defendant stated that he had $110 for A, $65 for A‘s mother, and $25 for A‘s brother. The defendant also stated that “[s]omeone text me said they can not stop u from calling the cop? Let me know.” A few days later, the defendant stated, “I‘m buying [you a] gift if [you] [accept],” and “I‘m not upset with you . . . [H]ad to do what [you] did.” A‘s mother responded with a text message to the defendant stating that he had no reason to be upset with her. The defendant replied that he understood and that “[either] way all [our] life is messed up.”
The prosecutor informed the court and defense counsel about these text messages on the same morning that A‘s mother brought the messages to her attention. Although the prosecutor planned to call A‘s mother as its second witness, the court ordered A‘s mother‘s testimony to be delayed until the next day “in fairness . . . so everybody could digest the content” of the text messages.
The next day, before A‘s mother testified, the defendant moved to preclude the admission of these text messages into evidence. The defendant argued that, even if the prosecutor did not actually know about the
text messages until the day they were disclosed to the defendant, she should have known about the text messages earlier because text messages, according to counsel, were mentioned in A‘s medical report and gifts were mentioned in records from the Department of Children and Families. The defendant argued that the late disclosure by the prosecutor disadvantaged him in preparing his defense. He claimed that the text messages should have been disclosed at the earliest stages of the case and that their late disclosure violated his federal and state constitutional rights to due process.
The court denied the defendant‘s motion to preclude the evidence. It concluded that the prosecutor was not aware of the text messages at an earlier stage and there was
A‘s mother subsequently testified about the text messages. A‘s mother stated: “[H]e‘s never offered me money . . . it was like he wanted to give us money after the incident came out.” When the defendant testified, he attempted to explain the text messages by stating that he wanted to give A‘s mother money to buy gifts for Christmas.
We begin by setting forth the standard of review and legal principles that guide our analysis of this claim. As noted in part II of this opinion, the trial court‘s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court‘s discretion.
We conclude that the trial court did not abuse its discretion in admitting evidence of the text messages sent from the defendant to A‘s mother because the prosecutor complied with discovery requirements by timely disclosing the evidence shortly after she was told about it. The prosecutor informed the court and defense counsel of the text messages on the same morning that A‘s mother brought the messages to her attention.
The defendant argues that the prosecutor‘s disclosure of the text messages was untimely because the state should have known of the text messages prior to the first day of trial. He claims that “the record clearly indicates that the state should have been aware of the [text] messages” because of reports within the state‘s possession. We disagree. According to counsel at oral argument on the defendant‘s motion to preclude, during A‘s appointment with Donahue on December 2, 2014, A‘s mother informed A‘s doctor that the defendant was texting her almost daily. Donahue noted this information in her report. The report, however, did not indicate the content of the text messages. In addition, according to counsel, A‘s mother reported to the Department of Children and Families that the defendant had been offering to buy gifts for A and herself. A‘s mother stated that this offer was out of character for the defendant and that she felt it was the defendant‘s way of swaying her to stop the police investigation. However, the prosecutor asserted that the report did not state that the offers of gifts and money were contained in text messages. Consequently, there was no evidence that the prosecutor should have known of the text messages because, as the trial court concluded, neither report contained the information that there was text message evidence of the defendant‘s offerings of gifts or money. Therefore, the prosecutor‘s disclosure of the text messages authored by the defendant, made on the same morning she discovered the evidence, was timely.
The defendant argues that evidence of the text messages should have been precluded as a sanction under
The judgment is affirmed.
In this opinion the other judges concurred.