STATE OF CONNECTICUT v. JUAN V.
(AC 28871)
Appellate Court of Connecticut
Argued March 17—officially released July 29, 2008
109 Conn. App. 431
Bishop, Beach and Berdon, Js.
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 use the defendant‘s full name or to identify the victim or others through whom the victim‘s identity may be ascertained. See General Statutes § 54-86e.
returned a general verdict in favor of the defendant. Without interrogatories, we are not able to determine whether the jury found in favor of the defendant because the plaintiff failed to prove the allegations of the complaint or because the defendant prevailed on his special defense. We therefore must presume that the jury found every issue in favor of the defendant. See id.
The plaintiff‘s claim relates only to the jury‘s finding that the defendant was not negligent. As a result, it fails to undermine the presumed finding of contributory negligence. Application of the general verdict rule precludes our review of the plaintiff‘s second claim.
The judgment is affirmed.
In this opinion the other judges concurred.
STATE OF CONNECTICUT v. JUAN V.1
(AC 28871)
Bishop, Beach and Berdon, Js.
Argued March 17—officially released July 29, 2008
Sarah Hanna, deputy assistant state‘s attorney, with whom, on the brief, were Gail P. Hardy, state‘s attorney, and Robin D. Krawczyk, senior assistant state‘s attorney, for the appellee (state).
Opinion
BISHOP, J. The defendant, Juan V., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of
The jury reasonably could have found the following facts. Between July 5, 2003, and July 4, 2004, the victim, J, spent one to three mornings each week at the house of her grandmother and her grandfather, the defendant, while her parents worked. During this time, J was approximately four years old. Several times, while J was at the defendant‘s home, the defendant and J engaged in a “game called break-it.” The game occurred both in the defendant‘s bedroom and in the basement, and required that J take off her shirt, pants and underwear.2 The defendant would remove
At trial, both J and the defendant testified. Additionally, a significant amount of testimony was provided through the admission of the videotaped diagnostic and forensic interview that was conducted at the children‘s advocacy center at Saint Francis Hospital and Medical Center (advocacy center) after J complained about the sexual assault. At the trial‘s conclusion, the jury found the defendant guilty on both charges, and the court sentenced him to the custody of the commissioner of correction for a total effective term of twenty years, suspended after ten years, with twenty years of probation. This appeal followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court abused its discretion by admitting the examining pediatrician‘s report into evidence. Specifically, the defendant claims that the pediatrician‘s report contained a statement that impermissibly vouched for J‘s credibility. We disagree.
At trial, Frederick K. Berrien, a physician, testified for the state that, prior to conducting J‘s physical examination, he had read a report, prepared by Annabella Agudelo, summarizing J‘s interview at the advocacy center. Berrien relied on Agudelo‘s report for J‘s medical history and to tailor his examination to J‘s allegations. Although the physical examination of J was normal, Berrien testified that a lack of physical findings does not disprove sexual abuse. Berrien explained that since the assault allegedly took place approximately one month before the examination, there would have been time for damage to J‘s genitalia to heal. Furthermore, Berrien testified that penetration of the genitalia can occur without entrance as far as the hymen. In the course of Berrien‘s testimony, the state moved to admit a copy of the report of J‘s physical examination pursuant to the business record exception to the rule against hearsay. The state established, and the defendant did not dispute, that Berrien prepared the report, that it was prepared in the ordinary course of business and that it was completed at or near the time of the examination.5 The defendant objected to the following line in the report: “A normal exam can be found with sexual contact as revealed in the interview.” The defendant claimed that this
“The trial court‘s ruling on evidentiary 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.” (Internal quotation marks omitted.) State v. Robles, 103 Conn. App. 383, 401, 930 A.2d 27, cert. denied, 284 Conn. 928, 934 A.2d 244 (2007).
“[A]n expert witness may not testify regarding the credibility of a particular victim.” State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001). Our Supreme Court has “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 ha[s] 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.” (Citation omitted.) State v. Iban C., 275 Conn. 624, 635, 881 A.2d 1005 (2005).
Here, the defendant asserts that the phrase, “as revealed in the interview,” constitutes Berrien‘s opinion that J‘s interview statements alleging sexual assault were true. In making his argument, the defendant asserts that the phrase at issue in Berrien‘s report falls into the category of expert opinions deemed to be improper bolstering in Iban C. and Grenier. We disagree.
The statement in question here is distinctly different from the expert testimony found inadmissible in Iban C. and Grenier. In Iban C., the defendant objected to the written report and the direct testimony of the state‘s expert witness, a pediatrician, who diagnosed the victim in that case as having been sexually abused despite a normal physical examination. State v. Iban C., supra, 275 Conn. 632-33. On appeal, the Supreme Court found that the testimony under scrutiny usurped the role of the jury by impermissibly bolstering the victim‘s credibility. Id., 636-37. In this case, unlike in Iban C., Berrien did not opine that J had been sexually abused; rather, he made the general statement that a normal physical examination is not necessarily inconsistent with sexual abuse.
Grenier is likewise distinguishable from the case at hand. In Grenier, a counselor‘s testimony that the victim‘s ” ‘statements were very credible’ “; State v. Grenier, supra, 257 Conn. 802; was inadmissible because it amounted to “a direct assertion that validated the truthfulness of [the victim‘s] testimony.” (Internal quotation marks omitted.) Id., 806. Additionally, a clinical psychologist‘s testimony that she treated the victim for ” ‘the trauma of the abuse that [she] experienced’ “; id., 804; was inadmissible because it “constituted an indirect assertion that validated the truthfulness of [the victim‘s] testimony.” (Internal quotation marks omitted.) Id., 806. In this case, Berrien did not directly or indirectly validate the truthfulness of J‘s testimony. He simply indicated that a normal examination does not belie the occurrence of sexual abuse.
II
Next, the defendant claims that the court improperly permitted the state to bolster J‘s credibility on direct examination. Specifically, the defendant argues that the state‘s question, “Did you know you were supposed to tell the truth to [Agudelo]?” and J‘s affirmative response vouched for her credibility before the defendant had put her credibility at issue on cross-examination. We disagree.7
Because the defendant is challenging an evidentiary ruling, our standard of review is whether the court abused its discretion in permitting the testimony. State v. Robles, supra, 103 Conn. App. 401. Evidence that bolsters a witness’
The following additional facts from the trial are pertinent to this issue. At the beginning of the direct examination of J, the state asked:
“Q. Do you remember going to a hospital and talking to a lady named [Agudelo]?
“A. Yes.
“Q. And did you tell her things that happened also?
“A. Yes.
“Q. And the things that you told her, were they true?
“A. Yes.”
The defendant objected to the final question and answer on the ground that the state was improperly attempting to bolster the witness’ credibility. The court agreed to strike the question and answer from the record. Thereafter, as the direct examination of J continued, she related many of the details of the alleged assault; however, some details differed, in particular regarding the issue of penetration, from statements she had made during her videotaped interview with Agudelo at the advocacy center. The following exchange, which is the heart of this claim, ensued:
“Q. And you talked to [Agudelo] about what happened. Right?
“A. Yes. . . .
“Q. And when you were—when you were telling [Agudelo] those things, did you know that you were supposed to tell the truth then?
“[Defense Counsel]: Objection, Your Honor. It improperly seeks to bolster the credibility of an unimpeached witness.
“[The Prosecutor]: No. I‘m seeking to lay a foundation in the terms of a six year old.
“The Court: I‘ll allow it.
“Q. Did you know that you were supposed to tell the truth to [Agudelo]?
“A. Yes.”
The court did not abuse its discretion in permitting the state to ask J whether she knew she was supposed to tell the truth during her interview with Agudelo because it is reasonable to conclude that the state was attempting to lay a proper foundation for admissibility of the videotape. Shortly after the court permitted the question at issue, the state concluded its direct examination of J and informed the court that it was going to seek to introduce portions of the videotaped interview under the Whelan8 and past recollection recorded exceptions to the rule against hearsay. Both of these exceptions to the rule against hearsay require the moving party to show that the out-of-court statements were reliable.9 Consequently,
Furthermore, the state‘s question about whether J knew she was supposed to tell the truth during the interview is readily distinguishable from the impermissible and previously stricken question of whether she was, in fact, telling the truth. The latter is an improper invasion of the province of the jury, as it seeks to bolster J‘s credibility before it has come under attack. In contrast, the former seeks to discern the state of mind of the witness during the interview as a prelude to the admissibility of the videotaped interview.
III
The defendant next claims that the court abused its discretion by admitting portions of the videotaped interview of J pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Specifically, the defendant claims that the state failed to prove that J had personal knowledge of the contents of the videotape, and, therefore, her availability for cross-examination was meaningless. The defendant‘s argument is without merit.
The following additional facts are relevant to our disposition of the defendant‘s claim. After J reported being sexually assaulted by the defendant, she provided a detailed account of the assaults in a videotaped interview with Agudelo at the advocacy center. J related many of the details of the sexual assaults in her testimony at trial; however, when asked, “[D]id his front private go inside or outside your front private?” she replied, “Outside.” Additionally, when asked, “Did his front private go in your front private?” J responded, “No.” These assertions were inconsistent with the details J provided in the videotaped interview. As a result, the state sought to admit segments of the interview that were inconsistent with her trial testimony under the Whelan exception to the rule against hearsay. The defendant objected, arguing that because J could not recall the substance of her prior videotaped statements, she had no personal knowledge of them; and her lack of memory would deny the defendant meaningful cross-examination. The court overruled the objection and permitted segments of the interview into evidence pursuant to Whelan.
“The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the . . . discretion of the trial court. . . . [T]he trial court‘s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court‘s ruling.” (Citation omitted; internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 56, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006); accord State v. Saucier, 283 Conn. 207, 217-18, 926 A.2d 633 (2007) (en banc) (adopting “hybrid”
“As with any statement that is admitted into evidence under a hearsay exception, a statement that satisfies the Whelan criteria may or may not be true in fact. But, as with any other statement that qualifies under a hearsay exception, it nevertheless is admissible to establish the truth of the matter asserted because it falls within a class of hearsay evidence that has been deemed sufficiently trustworthy to merit such treatment.” (Internal quotation marks omitted.) State v. Watkins, 72 Conn. App. 804, 810, 806 A.2d 1072 (2002), cert. denied, 263 Conn. 923, 823 A.2d 1216 (2003).
The defendant does not contest that the admitted portions of the videotaped interview were inconsistent with J‘s trial testimony or that the process of videotaping satisfied the writing requirement. Rather, the defendant asserts that the witness lacked personal knowledge at the time of trial of the accuracy of her videotaped statements.
“In evaluating whether a declarant has personal knowledge of the facts contained within a prior inconsistent statement, we look to the statement itself. If the statement itself indicates that the basis of the information contained in that statement is the declarant‘s personal knowledge, that is sufficient to satisfy the criteria of personal knowledge established by Whelan.” Id., 812.
In this case, through an interview, J related events that happened directly to her. This interview was captured on a videotape. The jury was shown the actual tape. Despite the obvious demonstration that J had personal knowledge of the facts that she related in the videotaped interview, the defendant argues that her inability to remember some of the interview at trial rendered her lacking in personal knowledge. Whether a witness repudiates a prior inconsistent statement has no bearing on the reliability of such statement. See State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993). Furthermore, “[a]llowing a party to circumvent the exception to the hearsay rule established by Whelan merely by repudiating the foundation for his knowledge when that foundation is an element of the statement itself would eviscerate the Whelan exception, potentially leaving no statement admissible under the pertinent rule.” State v. Watkins, supra, 72 Conn. App. 812.
As to the defendant‘s claim that J‘s faulty memory deprived him of meaningful cross-examination, we are unpersuaded. J was in court, testified as to her ability to distinguish between the truth and a lie, and was available to respond to the defendant‘s questions. See United States v. Owens, 484 U.S. 554, 561, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988). The defendant was able to avail himself fully of the opportunity to cross-examine J about the inconsistencies between her testimony and the videotaped interview. Her inability at trial to remember certain details about the interview does not render her unavailable for cross-examination. “[Meaningless cross-examination] is not produced by the witness’ assertion of memory loss which . . . is often the very result sought to be produced by cross-examination, and can be effective in destroying
IV
The defendant also asserts that the entire videotaped interview was admitted improperly by the court under the medical treatment exception to the rule against hearsay. The defendant contends that because J was not suffering from any physical symptoms, the state failed to prove that J knew that she was providing a statement for the purpose of medical treatment. We disagree.
The following additional facts are pertinent to the defendant‘s claim. After J reported the alleged sexual abuse to her parents, her father consulted with members of his church about her complaints. Thereafter, the police received a report of the sexual abuse and sent an officer and an investigator from the department of children and families to speak with J. On May 24, 2004, J was brought to the advocacy center for a diagnostic and forensic interview with the social worker, Agudelo.10 J was shown the interview room as well as an adjoining room, and she was told that there would be people, including a police officer, in the adjoining room.
After the interview, Agudelo made recommendations to J‘s family concerning J‘s future care and provided details of the interview for the examining pediatrician, Berrien. Berrien testified that the purpose of his examination was to determine if J needed further medical treatment. In addition, he relied on the details provided by Agudelo in order to understand J‘s medical history and to inform his physical examination.
At trial, portions of the videotaped interview were admitted under the Whelan exception to the rule against hearsay, but the state sought to introduce the entire videotape pursuant to the medical treatment exception to the rule against hearsay. To this end, the state elicited testimony from J that she knew that the interview with Agudelo occurred at a hospital and that she thought Agudelo was a physician. J testified that she had been examined by two physicians, Agudelo and a man, who both “checked me [to see] if there was anything wrong.” The defendant objected, inter alia, to the state‘s offer on the ground that the state had failed to prove that the statements were made by J for the purpose of obtaining medical treatment. The court admitted the entire videotape over the defendant‘s objections.
To the extent that a court admits evidence relying on an interpretation of the Connecticut Code of Evidence, our review is plenary; but here, where the court‘s decision was an application of the facts to the law, we afford the trial court‘s ruling deference and will only reverse for an abuse of discretion. See State v. Saucier, supra, 283 Conn. 218-20.
The record provides ample basis that J gave the statements to obtain medical treatment. J testified that she was brought to a hospital, she believed Agudelo was a physician and the purpose of the interview was to see “if there was anything wrong.” Not only did J believe that she was interviewed for diagnostic purposes, but she did, in fact, receive medical treatment. Agudelo testified that she made recommendations to J‘s parents after the interview.11 Furthermore, the interview fell within the chain of medical care because Berrien adapted his physical examination to J‘s reported experiences. On the basis of this evidence, the court did not abuse its discretion by admitting the entire videotaped interview under the medical treatment exception to the rule against hearsay.
V
Finally, the defendant claims that the court improperly denied his motion for a judgment of acquittal as to the count of sexual assault in the first degree because the evidence was insufficient to prove the necessary element of sexual intercourse. Specifically, the defendant contends that the state failed to present any evidence of penetration from which the jury could conclude that he engaged in sexual intercourse with J. We disagree.
“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favor- able to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .
“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is
“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant‘s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .
“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact‘s] verdict of guilty.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007) (en banc).
The evidence, when construed in the light most favorable to sustaining the jury‘s verdict, is sufficient to sustain the defendant‘s conviction of sexual assault in the first degree. The court admitted segments of the videotaped interview between J and Agudelo under the Whelan exception to the rule against hearsay during redirect examination of J. J described the defendant‘s penetration of her genitalia in her videotaped interview with Agudelo in the following manner:
“Q. So, grandpa took out his peanut. And then what happened? . . .
“A. Grandpa took it out. He had it in a zipper. And he took off his shirt. He took off his pants. And then he had a little hole in his pajama pants. So, he took that out.
“Q. Uh-huh.
“Q. It was gooey. What was gooey?
“A. This was a little hole in there that made gooey stuff on it.
“Q. Yeah. A hole in what?
“A. It had a—it had a little hole this small—
“Q. Uh-huh.
“A. —that you can‘t really see. And what happened is that—oh. I went—I went on him.
“Q. Uh-huh.
“A. He started making me gooey.
“Q. He made you gooey?
“A. Uh-huh.
“Q. Where were you gooey?
“A. Well, he (unintelligible) tolin, [because] I have a tolin. And he put it right in there. So, it got me gooey.
“Q. Yeah. He put what in your tolin?
“A. He put white gooey stuff.
“Q. White gooey stuff? Where did the white gooey stuff come from?
“A. From his peanut. . . .
“Q. So, he put his peanut in your tolin?
“A. Uh-huh.
“Q. What did that feel like?
“A. It feels like something was going on me. And it started sending a lot of gooey.
“Q. A lot gooey?
“A. Yes.
“Q. What was he doing with his peanut in your tolin? What was he doing?
“A. He started jumping around and doing this.”
Additionally, on recross-examination, the following exchange took place between counsel for the defense and J:
“Q. Okay. Did you hear yourself say on the tape that grandpa got gooey stuff in your tolin? Did you hear yourself—
“A. Yes.
“Q. —on tape say that?
“A. Yes.
“Q. Do you remember—now that we have seen the tape, do you remember saying that?
“A. Yes.
“Q. Is that true that he got gooey stuff in your tolin?
“A. Yes.
“Q. And how do you know that it was in your tolin? Did you feel something that made you think it was in your tolin?
“A. I think so.
“Q. Okay. What did you feel?
“A. I think it—I think . . .
“Q. [J], did you feel any pain?
“A. No.
“Q. No pain at all? You sure about that?
“A. Yes.
“Q. When I say, ‘Did you feel any pain?’ I mean, specifically, in your front private part?
“A. No. There was no pain.”12
The defendant also asserts that Agudelo‘s question, “So, he put his peanut in your tolin?” was a leading question and, therefore, unreliable.13 The use of leading questions with children, when appropriate, does not necessarily render their responses untrustworthy. J. Myers, Child Witness Law and Practice (1987) § 4.6, pp. 129-34. Here, the defendant had ample opportunity to cross-examine J about her testimony and to expose weaknesses in her credibility. Ultimately, the determination of what weight to afford particular testimony is the exclusive province of the jury.
Because the jury reasonably could have determined that penetration occurred, we conclude that the court properly denied the defendant‘s motion for a judgment of acquittal.
The judgment is affirmed.
In this opinion BEACH, J., concurred.
BERDON, J., dissenting. This is a difficult case, not because of the applicable law, but because it involves allegations of sexual assault and abuse of J,1 a four year old child, allegedly perpetrated by the defendant, Juan V., her grandfather, the thought of which would arouse the emotions of anyone. But we are a nation of laws, and a jury must decide the guilt or innocence of a defendant on the basis of legally admissible evidence. In such cases, it is the duty of this court to rule on claimed errors even when its decision would result in a new
After the allegations with respect to the sexual abuse of J came to the attention of the East Hartford police department, a police officer brought J to the Saint Francis Hospital and Medical Center‘s children‘s advocacy center (advocacy center), a program that is partially funded by the office of the chief state‘s attorney. At the advocacy center, J was interviewed by Annabella Agudelo, a “clinical child interview specialist.” The police officer recorded and observed the interview through a one-way mirror. Although J, in her courtroom testimony, denied penetration, a necessary element of sexual assault in the first degree pursuant to General Statutes § 53a-65 (2),2 during this interview, in response to leading questions by Agudelo,3 a statement was elicited indicating that there was penetration.
Shortly thereafter, Frederick K. Berrien, a pediatrician and the director of the advocacy center, examined J. At trial, Berrien testified that his examination of J revealed no abnormal findings, and the state offered into evidence his written report, which included the following statements under the heading of “Assessment“: “The anogenital exam on [J] is normal. A normal exam can be found with sexual contact as revealed in the interview [with Agudelo].” (Emphasis added.)4 Counsel for the defendant timely objected to the admission of the italicized portion of that statement and sought its redaction, arguing that the language improperly vouched for J‘s credibility. In fact, during the limited argument that counsel was forced to make in the presence of the jury,5
I recognize that the “trial court‘s ruling on evidentiary 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 applicable 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 determination of the credibility of a witness [however] 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 to their testimony. . . . Expert witnesses cannot be permitted to invade the province of the jury 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.” (Citations omitted; internal quotation marks omitted.) State v. Iban C., 275 Conn. 624, 634-35, 881 A.2d 1005 (2005).
Here, the majority tries to minimize Berrien‘s statement by characterizing it as a “general statement that a normal physical examination is not necessarily inconsistent with sexual abuse.” Berrien, however, did not write what the majority would like us to believe. He wrote of the “sexual contact as revealed in the interview” with Agudelo, which, at the very least, was an indirect assertion that J was telling the truth in her interview and should be believed. Our Supreme Court has “noted that even 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.” (Emphasis added.) State v. Iban C., supra, 275 Conn. 635; see also State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001). The error of allowing this statement into evidence was compounded by the fact that it was in writing and also was made available to the jury as a full exhibit during its deliberations. To make matters worse, the court forced defense counsel to argue his objection regarding the admissibility of Berrien‘s statement without first excusing the jury. This must have underscored for the jury its importance in this case. The error of bolstering the credibility of J‘s statements made during the interview was further exacerbated when the court permitted the state to elicit from J, over the timely objection of the defendant, that she knew that she had to tell the truth to Agudelo during the interview.7
It is clear that “[w]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) State v. Ritrovato, 280 Conn. 36, 56, 905 A.2d 1079 (2006). This requirement is satisfied by showing that “it is more probable than not that the erroneous evidentiary ruling affected the result.” (Internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 353, 904 A.2d 101 (2006).
I come to the conclusion that the error was harmful because of the admission of Berrien‘s report into evidence as a full exhibit, because the court required defense counsel to argue the statement‘s admissibility in the presence of the jury and because the court allowed the state to elicit from J that she knew that she was required to tell the truth during the interview. Furthermore, because there was no physical evidence of sexual assault or abuse and the only evidence was from J, the case must be characterized as “not particularly strong, especially when the victim is a minor.” State v. Ritrovato, supra, 280 Conn. 57. There was no curative instruction given by the court. Under these circumstances, the admission of Berrien‘s statement was harmful. Just as in State v. Ritrovato, supra, 57, because “there was no independent physical evidence of the assault [and abuse] and no other witnesses to corroborate [the victim‘s] testimony, her credibility was crucial to successful prosecution of the case.” Berrien‘s suggestion that there was “sexual contact as revealed in the interview [with Agudelo]” must have played a significant role in the jury‘s determination of guilt. I would therefore reverse the judgment of the trial court and order a new trial on both counts.
Accordingly, I dissent.
Notes
A variation of this problem arises in footnote three of the dissent in which Judge Berdon comments: “It is obvious that because the state relied on this interview to prosecute the defendant, and Agudelo‘s employer, the advocacy center, was financed in part by the office of the chief state‘s attorney, Agudelo acted, at least in part, in the role of a prosecutor in the interview.” Aside from the obvious impediment that we ought not to be engaging in fact-finding on review, the record is devoid of any support for this factual leap. To the contrary, the record reveals that Agudelo, as a clinical child interview specialist, acted as part of an interdisciplinary team to interview the victim and that her purpose in doing so was to “gather as much accurate information as possible to make decisions for medical and other mental health services.” Additionally, the record is clear that the victim, who was aware that she was in the hospital when the interview took place, thought Agudelo was a physician and was there to help her. Although our colleague may be troubled by the notion of a multidisciplinary team approach to the interviewing of a child, one that may have both criminal investigative as well as medical care purposes, the record in this case lends no support to the notion that everyone who participates in such an interview must be an agent of the prosecution simply because this team approach is financially supported, in part, by the prosecutorial arm of the state.
The following colloquy occurred during the prosecutor‘s direct examination of Berrien:“[The Prosecutor]: Dr. Berrien, did you perform—I mean, did you write a report in connection with your physical examination of the child in court‘s exhibit one?
“[The Witness]: Yes, I did.
“[The Prosecutor]: Prepare a report, is what I was trying to say. And I‘m showing you, Dr. Berrien, state‘s exhibit eight for identification. Do you recognize what that is?
“[The Witness]: Yes. It‘s a copy of my report.
“[The Prosecutor]: And is that prepared in the ordinary course of business?
“[The Witness]: Yes, it was.
“[The Prosecutor]: Is it your ordinary course of business to prepare such a report?
“[The Witness]: Yes, it is.
“[The Prosecutor]: And was it prepared at or near the time of the examination?
“[The Witness]: Yes, it was.
“[The Prosecutor]: I‘d offer it as a full exhibit. . . . The history that‘s indicated in this report—from who did you receive that information?
“[The Witness]: From whom did I receive all of the information?
“[The Prosecutor]: That‘s included in your report under the section called ‘history‘.
“[The Witness]: History was in large part obtained from the report of . . . Agudelo.
“The Court: All right. Subject to the name being redacted, I‘ll allow it in as a full report.
* * *
“[Defense Counsel]: The court has a copy of the report? Under ‘[a]ssessment,’ Your Honor. The assessment, the second sentence, which I‘d rather discuss in the jury‘s absence, because I‘m certainly saying—tell you that this is—does not belong in this report and should be excluded.
“The Court: Okay.
“[Defense Counsel]: So—
“The Court: I‘ve read it, [the] state‘s attorney has read it [and the] doctor has previously testified to it. Your objection is overruled.
“[Defense Counsel]: No, Your Honor. I—excuse me, Your Honor. It‘s the last phrase as revealed in the interview is vouching—Your Honor, this is very inappropriate for me to make this argument in the jury‘s presence. It‘s unfair to the defense. It‘s unfair to the jury. The—
“[The Prosecutor]: May I be—
“[Defense Counsel]: The doctor appears to be accepting as true and vouching for the truth of what appears in that phrase. . . . Clearly—clearly is
“[The Prosecutor]: Okay. And when you were—when you were telling [Agudelo] those things, did you know that you were supposed to tell the truth then? . . . Did you know that you were supposed to tell the truth to [Agudelo]?
“[The Witness]: Yes.”