author: ESPINOSA, J.

text:
    STATE OF CONNECTICUT v. EDWARD J. ALLEN
    (AC 33528)
    Robinson, Espinosa and Sheldon, Js.

      Argued September 14, 2012
    officially released January 29, 2013

      Kathleen E. Rallo, with whom were Brian J. Woolf and, on the brief, Douglas K. Lindbergh, for the appellant (defendant).

      David J. Smith, senior assistant state’s attorney, with whom were Christa L. Baker, assistant state’s attorney, and, on the brief, Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

ESPINOSA, J.

The defendant, Edward J. Allen, appeals from the judgment of conviction, rendered following a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The defendant claims that (1) the evidence did not support the jury’s verdict, (2) the trial court improperly admitted evidence of prior uncharged sexual misconduct and (3) the court, following an in camera review of certain counseling records of the victim, improperly failed to disclose such records to him. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, along with her mother and her sister, began to reside with the defendant in Connecticut sometime in 1999, when the victim was approximately six or seven years of age. Beginning in 2000, several incidents of a sexual nature involving the defendant and the victim occurred. In one instance, the victim had a conversation with the defendant about a movie. The defendant discussed different aspects of male and female anatomy, and stated that men insert their penises into women for fun. The defendant proceeded to touch the victim’s vagina over her clothing.

In another instance, the victim entered the defendant’s bedroom to speak with him. The defendant played a pornographic movie on the television and began massaging the victim, ultimately rubbing her vagina over her clothing. Despite the victim’s protests, the defendant removed her underwear and inserted a vibrator into her vagina.

In yet another incident, the defendant called the victim into his bedroom where he began massaging her. The defendant exposed his penis and caused the victim to perform oral sex on him until he ejaculated in her mouth.

Days later, the defendant entered the victim’s bedroom, sat on the victim’s bed with her and began touching her under her pajamas. The defendant removed the victim’s pajamas and underwear, exposed his penis and partially inserted his penis into her vagina. Unable to fully penetrate the victim, who was crying and in pain, the defendant pulled himself off the victim and left the bedroom. The defendant told the victim, “don’t tell anyone because I can hurt you and your family.”

In still another incident, the victim entered the defendant’s bedroom and began looking through his dresser. The defendant discovered the victim in the bedroom, guided her to the bed and inserted a vibrator into her vagina. Once again, the defendant warned the victim not to tell anyone about what had occurred. Additional facts will be set forth as necessary.

I

First, the defendant claims that the evidence did not support the jury’s verdict with regard to any of the six counts of which he was found guilty. We disagree.

“The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. 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 favorable 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. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“[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 trier, 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 jury’s verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 656-57, 1 A.3d 1051 (2010).

In challenging the sufficiency of the evidence, the defendant does not draw our attention to any specific essential elements of the crimes of which he stands convicted. Nor does the defendant dispute that the victim’s trial testimony, if deemed to be credible evidence, satisfied the essential elements of the crimes at issue. Rather, the defendant argues that the jury could not reasonably have relied on the victim’s incriminating testimony regarding the events at issue because the victim testified that, for her, there was more than one reality and that she did not know the difference between reality and a nightmare. Also, the defendant argues that the jury could not reasonably have relied on the victim’s testimony because the evidence reflected numerous and significant inconsistencies between the victim’s trial testimony and statements that the victim made during an August 3,2006 interview, a videotape of which was admitted into evidence.

The victim was cross-examined vigorously by the defendant’s attorney. The defendant’s attorney asked her about the differences between her statements on August 3,2006, and her trial testimony. As the defendant argues, part of the victim’s testimony during cross-examination could be interpreted to mean that she has difficulty differentiating between reality and her dreams. Upon further questioning, however, the victim testified, “The things that I’ve testified I know are real. I’m not going to say something that I’m not sure if it’s just a vivid dream or my memory trying to tell me this is real. Everything I’ve testified is real, is true, is reality.” The victim stated that she knew that the events about which she testified were real “[b]ecause every day it goes through my mind and I know it’s real.” With regard to one incident of alleged abuse, the defendant’s attorney asked the victim if she could be certain that the events occurred or whether it was a dream. The victim stated, “I can tell this is reality, not a dream.” In responding to an inquiry about her videotaped statement, the victim testified: “At the time, it was reality also . . . .”

The record reflects that the defendant’s attorney amply cross-examined the victim concerning her recollection of relevant events, the differences between her trial testimony and her earlier videotaped statement, as well as her ability to recall past events accurately. These topics were a subject of the defendant’s closing argument to the jury.

The fact that the defendant reasonably could argue to the jury that the victim’s testimony was not entirely consistent with her videotaped statement or that the victim’s testimony possibly exposed a weakness in her ability to recall prior events accurately does not provide this court with a basis upon which' to direct a verdict of not guilty. The victim testified that she was able to perceive the prior events accurately, and her testimony concerning those events sufficiently supported the finding of guilt as to the crimes of which the defendant stands convicted. Determining whether this testimony was truthful was a matter for the jury, not this court, to resolve. “It is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness’ testimony. ... If there is any reasonable way that the jury might have reconciled the conflicting testimony before [it], we may not disturb [its] verdict.” (Citations omitted; internal quotation marks omitted.) State v. Allen, 289 Conn. 550, 559, 958 A.2d 1214 (2008).

II

Next, the defendant claims that the court improperly admitted evidence of uncharged sexual misconduct the state alleged that he had committed. Within this larger claim, the defendant argues that the court’s evidentiary ruling was improper because (1) the uncharged misconduct was dissimilar to the charged misconduct of which he stood accused, (2) the court erred in its gatekeeping role and (3) the prejudicial effect of the evidence outweighed its probative value. We disagree with all aspects of this claim and will address each of them in turn.

Prior to trial, the state filed a notice of intent to offer evidence of uncharged misconduct by the defendant. Specifically, the state gave notice of its intent to present evidence that on various dates between 1993 through 1999, the defendant engaged in sexual intercourse with another minor, J.C. The defendant opposed the motion and filed a motion in limine in which he asked the court to preclude such evidence. In a pretrial hearing in connection with the motion held on February 16, 2011, the state presented the testimony of J.C. outside of the presence of the jury. Also, the state submitted a detailed, written offer of proof to the court concerning the victim’s allegations in the present case.

In a thorough decision, the court concluded that the evidence was admissible because it was relevant to demonstrate the defendant’s propensity to engage in the type of sexual misconduct with minors of which he stood charged. Also, the court concluded that the evidence was more probative than prejudicial.

As the court observed, the offer of proof concerning the victim revealed the following facts. The female victim was between seven and eleven years of age when the defendant committed the acts at issue. The ten or eleven alleged incidents occurred between 2000 and 2004. The defendant used physical force to perpetrate the sexual acts. The defendant engaged in a pattern of conduct that began with his touching the victim while she was clothed, escalated to his touching of her shoulders and her breasts and ultimately progressed to acts such as penile-vaginal intercourse, digital penetration, cunnilingus and fellatio. Thus, the court found that the allegations of sexual conduct were of “an ascending nature . . . .” These acts occurred in the defendant’s residence, including in his bedroom, while the victim was staying at the residence. The defendant showed the victim pornography at the time of the assaults, and his sexual misconduct involved the use of vibrators. The assaults included the defendant’s kissing the victim. Also, the defendant told the victim that if she told anyone about his sexual conduct, she would be in a lot of trouble.

The court discussed the relevant portions of J.C.’s testimony, which encompassed the following facts. J.C. was a female, and the defendant sexually assaulted her ten times when she was between ten and fourteen years of age. J.C. was the defendant’s neighbor and lived a few houses away from the defendant but sometimes was at the defendant’s residence to perform gardening duties or help the defendant’s girlfriend around the house. The defendant’s course of sexual conduct began with acts such as kissing and touching over her clothing. The acts progressed to more egregious types of sexual conduct, such as cunnilingus and penile-vaginal intercourse. The defendant assaulted J.C. in his residence, including in his bedroom. J.C. observed pornographic materials and vibrators in the defendant’s bedroom, but the defendant neither displayed pornography for J.C. nor utilized a vibrator during his sexual assaults on J.C. The defendant, however, utilized a strap-on dildo during some of his assaults of J.C.

The court concluded that J.C. was similar to the victim, that the acts described by J.C. were similar to those described by the victim and that the acts alleged by J.C. were not too remote in time to be relevant to the present case. The court concluded that although there were some dissimilarities in terms of the characteristics of the alleged victims and the manner in which the assaults occurred, these dissimilarities were not significant for purposes of its analysis. Having concluded that J.C.’s testimony was relevant evidence, it also concluded that the evidence was not more prejudicial than probative for the purpose of demonstrating the defendant’s propensity to engage in sexual misconduct with minors. Thus, the court ruled that the state could present the evidence concerning J.C., and that it would deliver an appropriate limiting instruction related to the evidence.

Before discussing each aspect of the defendant’s claim on appeal, we set forth applicable legal principles, including our standard of review. “Evidence of other crimes, wrongs or . . . acts of a person is inadmissible to prove the bad character or criminal tendencies of that person. Conn. Code Evid. § 4-5 (a). Evidence of other crimes, wrongs or acts of a person is admissible for purposes . . . such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony. Conn. Code Evid. § 4-5 (b). In State v. DeJesus, 288 Conn. 418, 470, 953 A.2d 45 (2008) (en banc) . . . our Supreme Court effectively carved out an additional exception to [those listed in] § 4-5 (b) of the Connecticut Code of Evidence when it recognized a limited exception to the prohibition on the admission of uncharged misconduct evidence in sex crime cases to prove that the defendant had a propensity to engage in aberrant and compulsive criminal sexual behavior. . . .

u[l]n DeJesus, the court recognized that evidence routinely admitted under the common plan or scheme exception typically is unrelated to the existence of an overall scheme or plan in the defendant’s mind that encompasses the commission of the charged and uncharged crimes . . . [and that] evidence admitted under this standard ordinarily does not fall within the true common scheme or plan exception. . . . Citing a variety of public policy reasons, the court concluded that evidence of uncharged misconduct in sex crime cases may be admitted to demonstrate a defendant’s propensity to engage in sexual misconduct. . . .

“The court in DeJesus determined that evidence of this nature is admissible if three conditions are satisfied. First, the evidence must be relevant to prove that the defendant had a propensity or a tendency to engage in the type of aberrant and compulsive criminal sexual behavior with which he or she is charged. Relevancy is established by satisfying the liberal standard pursuant to which evidence previously was admitted under the common scheme or plan exception. Accordingly, evidence of uncharged misconduct is relevant to prove that the defendant had a propensity or a tendency to engage in the crime charged only if it is: (1) . . . not too remote in time; (2) . . . similar to the offense charged; and (3) . . . committed upon persons similar to the prosecuting witness. . . . Second, the evidence must be more probative than prejudicial. ... In balancing the probative value of such evidence against its prejudicial effect . . . trial courts must be mindful of the purpose for which the evidence is to be admitted, namely, to permit the jury to consider a defendant’s prior bad acts in the area of sexual abuse or child molestation for the purpose of showing propensity. . . . Third, to minimize the risk of undue prejudice to the defendant, the admission of evidence of uncharged sexual misconduct under the limited propensity exception . . . must be accompanied by an appropriate cautionary instruction to the jury.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. L.W., 122 Conn. App. 324, 329-31, 999 A.2d 5, cert. denied, 298 Conn. 919, 4 A.3d 1230 (2010).

“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. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Coccomo, 302 Conn. 664, 670-71, 31 A.3d 1012 (2011).

A

The defendant claims that the admission of J.C.’s testimony was improper because the uncharged misconduct involving J.C. was dissimilar to the charged misconduct with which the defendant stood charged. The defendant asserts that the evidence presented at trial demonstrated that (1) although the defendant attempted to engage in penile-vaginal intercourse with the victim only once, he primarily engaged in this type of sexual conduct with J.C.; (2) the defendant used one or more vibrators during his abuse of the victim but did not use a vibrator during his abuse of J.C.; (3) the defendant forced the victim to perform fellatio on him but did not force J.C. to do so; (4) the defendant displayed pornography during his abuse of the victim but did not display pornography for J.C.; (6) the defendant acted in a violent manner toward the victim but not toward J.C.; and (6) the defendant abused the victim when she was seven years of age and abused J.C. when she was between ten and fifteen years of age.

As a preliminary matter, we disagree with the defendant’s characterization of the evidence that is relevant to our analysis. In evaluating whether the court properly ruled that the uncharged misconduct evidence was admissible, we look to the evidence presented to the court at the time it made that ruling. See State v. Harris, 32 Conn. App. 476, 481 n.4, 629 A.2d 1166 (“[w]e are bound to evaluate the propriety of the trial court’s rulings on the basis of the facts known to the court at the time of its rulings”), cert. denied, 227 Conn. 928, 632 A.2d 706 (1993). The state represented that the defendant engaged in penile-vaginal intercourse with the victim ten or eleven times. Further, the state represented that the defendant abused the victim when she was between seven and eleven years of age. During her pretrial testimony in connection with the state’s written motion to present the uncharged misconduct, J.C. testified that the defendant abused her sexually when she was between nine and fifteen years of age.

“Our review of the relevant case law reflects that there is no bright line test for determining whether alleged acts of uncharged sexual misconduct and those involving the complaining witness in a sexual assault case are sufficiently similar. What is clear, however, is that the law requires similar acts of misconduct, not identical acts of misconduct.” (Emphasis in original.) State v. L.W., supra, 122 Conn. App. 333.

The evidence before the court at the pretrial hearing demonstrated that the defendant abused the female victim, who was living in his residence, when she was between seven and eleven years of age. The evidence demonstrated that the defendant abused J.C., a female, when she was between nine and fifteen years of age. J.C. was a neighbor of the defendant and frequently was at his residence. Insofar as the defendant’s argument appears to be based on the dissimilarity of the victim and J.C., we conclude that the court did not abuse its discretion by concluding that the uncharged misconduct was committed against a victim who was similar to the complaining witness.

The evidence before the court demonstrated that the defendant sexually abused the victim in his residence, including in his bedroom. The defendant also exhibited pornographic images for the victim to observe, touched the victim in a sexual manner, masturbated in the victim’s presence, performed oral sex on the victim, forced the victim to perform oral sex on him, used vibrators to penetrate the victim and engaged in penile-vaginal intercourse with the victim on numerous occasions. The evidence before the court demonstrated that the defendant sexually abused J.C. in his residence, including in his bedroom. The defendant touched J.C. in a sexual manner, performed oral sex on J.C., used a strap-on dildo in some of his assaults and engaged in penile-vaginal intercourse with J.C. On this record, we readily conclude that the evidence of uncharged misconduct was sufficiently similar to the conduct at issue involving the victim. For the foregoing reasons, we conclude that the court did not abuse its discretion in concluding that the uncharged misconduct evidence was sufficiently similar, and thus relevant, to the issues related to the misconduct with which the defendant stood charged.

B

Next, the defendant claims that the court erred in its gatekeeping role as it related to the admission of the uncharged misconduct evidence. Specifically, the defendant argues that the court had an obligation, in its gatekeeping role, to preclude the state from presenting J.C.’s testimony because “it was determined, through discovery and through cross-examination at a preliminary hearing, that J.C. had, and admitted to, filing a false police report regarding the alleged ‘prior misconduct’ attacks.” Additionally, the defendant asserts that “it was clearly shown that she lacked credibility and had a history of making false accusations regarding sexual assaults.”

Previously, we discussed the test for admissibility enunciated by our Supreme Corut in DeJesus. It requires a showing that the evidence is relevant to demonstrate the defendant’s propensity to engage in the sexual acts with which the defendant stands charged and that its probative value is not outweighed by its prejudicial effect upon the finder of fact. State v. DeJesus, supra, 288 Conn. 473. In crafting this test for admissibility, our Supreme Court did not require a showing that the prior misconduct in fact occurred or that the evidence related to the prior misconduct satisfy a heightened standard of reliability rather than that applicable to evidence generally. Our case law does not support the defendant’s argument. In State v. Aaron L., 272 Conn. 798, 819-27, 865 A.2d 1135 (2005), our Supreme Court rejected a claim that prior misconduct evidence, to be admissible, must first be shown by clear and convincing evidence to have occurred. The court reasoned: “[W]e decline to adopt a rule requiring that the trial court make a preliminary finding by clear and convincing evidence that prior misconduct occurred before submitting that evidence to the jury. Thus, once a trial court determines that an act of prior misconduct is material and relevant to the charges at trial, and that its probative value outweighs its prejudicial effect, the evidence is admissible.” Id., 824.

“We are mindful that a trial court, in considering whether there is evidence from which the jury reasonably could conclude that the defendant actually committed the prior act of misconduct, acts as an evidentiary gatekeeper when considering the admissibility of such evidence. . . . [A]s a gatekeeper, the trial court . . . considers whether evidence reasonably supports the finding for which it is offered.” (Citations omitted.) State v. Cutler, 293 Conn. 303, 319 n.17, 977 A.2d 209 (2009). “[I]t has long been established that a court maintains the obligation to ensure [only] that a witness’ testimony meets the minimum standard of credibility necessary to permit a reasonable person to put any credence in that testimony. . . . Whether evidence is admissible is a question of law that is determined according to the rules of evidence. Whether the burden of persuasion has been met and the weight to be accorded to the evidence are questions of fact to be determined by the trier of fact.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Ritrovato, 280 Conn. 36, 51-52, 905 A.2d 1079 (2006).

We carefully have reviewed all of the evidence and arguments presented to the court concerning J.C.’s testimony. After the court heard testimony from J.C. and granted the state permission to present the uncharged misconduct evidence on February 16, 2011, the defendant filed a motion for reconsideration of that decision. The defendant’s March 16,2011 motion for reconsideration was premised on the ground that newly discovered evidence concerning J.C. raised significant issues related to her credibility, such that “she should not. . . be allowed to testify.” On March 21, 2011, the court held an evidentiary hearing related to the motion for reconsideration. At the hearing, the defendant presented the newly discovered evidence regarding J.C.’s testimony on which he relied. Specifically, the defendant presented evidence that on an earlier occasion, J.C. told the police and others that another individual, not the defendant, had committed the sexual misconduct that she presently alleged to have been committed by the defendant. This testimony contradicted the testimony that J.C. provided at the earlier pretrial hearing.

The court upheld its earlier decision to permit the state to present J.C.’s testimony. The court accurately acknowledged that the defense had grounds by which to impeach J.C.’s testimony concerning the defendant, namely, the issue of J.C.’s false statements. Nonetheless, the court observed that J.C. explained the circumstances surrounding her earlier statements and testified in the present proceeding that the defendant had committed the prior misconduct about which she testified. The court reasoned that these issues related to credibility were fodder for the jury’s consideration and concluded that a jury may believe her testimony in the present case. Recognizing the minimal standard inherent in the court’s gatekeeping function, we readily conclude that the testimony of J.C. tended to support the fact for which it was offered, namely, that the defendant had engaged in prior sexual misconduct, and that a reasonable jury could have deemed her testimony to be credible. The weaknesses in J.C.’s testimony, which were amply brought to light by the defendant, both in argument related to the admissibility of J.C.’s testimony and, later, at trial, were fodder for the jury’s consideration, but such arguments did not affect the admissibility of the evidence.

C

The defendant claims that the court improperly admitted the evidence because its prejudicial effect outweighed its probative value. “Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jur[ors]. . . . The trial court . . . must determine whether the adverse impact of the challenged evidence outweighs its probative value. . . . Finally, [t]he trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . [Bjecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done.” (Internal quotation marks omitted.) State v. Dillard, 132 Conn. App. 414, 425-26, 31 A.3d 880 (2011), cert. denied, 303 Conn. 932, 36 A.3d 694 (2012).

“Although evidence of child sex abuse is undoubtedly harmful to the defendant, that is not the test of whether evidence is unduly prejudicial. Rather, evidence is excluded as unduly prejudicial when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence. ... As explained in DeJesus, because of the unusually aberrant and pathological nature of the crime of child molestation, prior acts of similar misconduct, as opposed to other types of misconduct, are deemed to be highly probative because they tend to establish a necessary motive or explanation for an otherwise inexplicably horrible crime . . . and assist the jury in assessing the probability that a defendant has been falsely accused of such shocking behavior.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Antonaras, 137 Conn. App. 703, 722-23, 49 A.3d 783, cert. denied, 307 Conn. 936, 56 A.3d 716 (2012).

Here, in summary fashion, the defendant asserts that the uncharged misconduct evidence was unduly prejudicial because “[t]he uncharged sexual misconduct as to J.C. was materially and qualitatively dissimilar to that [related to] the offenses charged involving [the victim] in that it consisted of numerous instances of penile-vaginal intercourse, whereas there was [evidence of] just one alleged instance of attempted penile-vaginal intercourse involving [the defendant and the victim]. Thus, the alleged prior uncharged sexual misconduct involving J.C. was far more egregious than that concerning [the victim] . . . .”

Having reviewed the offer of proof submitted by the state at the time that the court ruled on the admissibility of the evidence as well as the testimony of J.C., we conclude that the uncharged misconduct evidence was not more egregious than the evidence related to the charged misconduct such that it was unduly prejudicial. As discussed in part II A of this opinion, the offer of proof concerning the victim included the display of pornography, inappropriate touching, penetration of the victim with the use of vibrators, cunnilingus, penile-oral intercourse, masturbation by the defendant and numerous instances of penile-vaginal intercourse. On this record, we conclude that the court did not abuse its discretion in concluding that the uncharged misconduct evidence was not more egregious than the charged misconduct and, therefore, was not more prejudicial than probative.

Furthermore, the record reflects that during trial and during the court’s final charge the court delivered a detailed instruction to the jury that limited its use of the uncharged misconduct evidence to its proper evi-dentiary purpose. These instructions, the substance of which is not challenged on appeal, mitigated any prejudicial impact of the evidence beyond the proper purpose that justified its admission.

Ill

Finally, the defendant claims that the court, following an in camera review of certain counseling records of the victim, improperly failed to disclose such records to him. We disagree.

The defendant requested the disclosure of the victim’s medical records, including psychological or psychiatric records, or that such records be disclosed for an in camera review by the court. The state provided certain counseling records of the victim to the court. At trial, the defendant sought disclosure of any information related to the victim’s allegations. Following an in camera review of the records, the court ruled that, under the standard set forth in State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), they did not contain information that should be disseminated to the defense. The court properly ordered the records to be sealed and made part of the record as a court exhibit. The defendant, questioning whether the records contained information that might have been useful to the defense in confronting the victim at trial, invites this court to review the sealed records for the purpose of determining whether the trial court abused its discretion in failing to disclose such records to the defense.

“Connecticut has a broad psychiatrist-patient privilege that protects the confidential communications or records of a patient seeking diagnosis and treatment. . . . Our Supreme Court has held that records and communications between a sexual assault victim and a sexual assault counselor are similarly protected and subject to the Esposito-Bruno procedure before such information may be disclosed to the defendant. . . .

“The victim’s right to privacy in such cases, however, often directly conflicts with the defendant’s right to confront the state’s witnesses. The right to confrontation is fundamental to a fair trial under both the federal and state constitutions. ... It is expressly protected by the sixth and fourteenth amendments to the United States constitution . . . and by article first, § 8, of the Connecticut constitution. . . . The defendant is guaranteed more than an opportunity to confront witnesses physically. . . . The right to confrontation secures to the defendant the opportunity to cross-examine witnesses against him . . . and to expose to the jury the facts from which the jurors . . . could appropriately draw inferences relating to the reliability of the witnesses. . . .

“In Esposito, our Supreme Court struck a balance between the confidentiality of psychiatric records and the defendant’s right to confrontation, concluding: If . . . the claimed impeaching information is privileged there must be a showing that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right of confrontation such that the witness’ direct testimony should be stricken. Upon such a showing the court may then afford the state an opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination. If the defendant does make such showing and such consent is not forthcoming then the court may be obliged to strike the testimony of the witness. If the consent is limited to an in camera inspection and such inspection, in the opinion of the trial judge, does not disclose relevant material then the resealed record is to be made available for inspection on appellate review. If the in camera inspection does reveal material then the witness should be given an opportunity to decide whether to consent to release of such material to the defendant or to face having her testimony stricken in the event of refusal.

“On review, we must determine whether the court’s decision constituted an abuse of discretion. . . . This court has the responsibility to conduct its own in camera review of the sealed records to determine whether the trial court abused its discretion in refusing to release those records to the defendant. . . . While we are mindful that the defendant’s task to lay a foundation as to the likely relevance of records to which he is not privy is not an easy one, we axe also mindful of the witness’ legitimate interest in maintaining, to the extent possible, the privacy of her confidential records. . . . The linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth ... so as to justify breach of their confidentiality .... Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis.” (Citations omitted; internal quotation marks omitted.) State v. Tozier, 136 Conn. App. 731, 751-63, 46 A.3d 960, cert. denied, 307 Conn. 925, 55 A.3d 567 (2012).

We carefully have reviewed the sealed records at issue. On the basis of that review, we agree with the court that they do not contain information that would have been useful to the defense. The records do not contain evidence that tended to discredit the victim’s testimony, her capacity to testify or her reliability as a witness in this case. Accordingly, we conclude that the court’s decision not to disclose the records did not reflect an abuse of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of one count of sexual assault in the first degree and one count of risk of injury to a child. The trial court imposed atotal effective sentence of eighteen years incarceration, execution suspended after thirteen years, followed by ten years of probation.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       The defendant does not argue that the court should have reconsidered its decision in light of the victim’s trial testimony.

       See footnote 3 of this opinion.

       See State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986), and State v. Esposito, supra, 192 Conn. 166.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    ROBIN MULCAHY v. GARY E. HARTELL
    (AC 33381)
    Gruendel, Beach and Robinson, Js.

      Argued October 18, 2012
    officially released January 29, 2013

      Anthony J. Nótale, with whom, on the brief, were Brian L. Wolinetz and Shannon N. Butler, for the appellant (plaintiff).

      Beverly S. Knapp, with whom, on the brief, was Craig A. Fontaine, for the appellee (defendant).
   Opinion

BEACH, J.

The dispositive issue in this appeal is whether evidence of a plaintiff s posttreatment conduct may be offered by a defendant under a general denial for the purpose of showing that the plaintiffs conduct was the sole proximate cause of her injuries. Because the defendant, Gary E. Hartell, D.C., proceeded under a general denial, and did not plead comparative negligence as a special defense, the plaintiff, Robin Mulcahy, claims that the defendant was precluded from offering any evidence demonstrating that the plaintiffs own conduct caused her injuries. We disagree and, accordingly, affirm the judgment of the trial court.

This medical malpractice action arises out of a bacterial infection that the plaintiff developed after obtaining acupuncture treatment from the defendant on October 11, 2007. At the time, the plaintiff was being treated for breast cancer and was experiencing neuropathy. She sought acupuncture from the defendant, a licensed chiropractor, in the hope of alleviating severe pain that she was experiencing in her legs. Part of the acupuncture regimen involved inserting a needle into the plaintiffs glabella, the region between the eyebrows and above the nose. The plaintiff subsequently developed celluli-tis in that region; as a result of the infection, she was hospitalized and needed intravenous antibiotic treatments. The treatments prevented the infection from spreading to the plaintiffs brain, but she experienced permanent scarring in the affected region.

The plaintiff commenced this medical malpractice action against the defendant, alleging that he was negligent in several respects. First, the plaintiff alleged that the defendant failed to utilize “clean needle techniques,” which failure led to the introduction of bacteria into the wounds caused by the acupuncture needles. The plaintiff also alleged that the defendant failed to apprise her adequately, prior to her treatment, of the heightened risk of infection due to the compromised state of her immune system. Accordingly, the plaintiff claimed that the defendant had not obtained her informed consent to undergo the procedure. Moreover, she alleged that the defendant himself failed to appreciate the potential complications attendant to the plaintiff’s cancer treatments. The defendant filed an answer to the complaint on April 1, 2009; the defendant denied the plaintiffs claims of malpractice, but did not assert any special defenses.

Before trial, the plaintiff filed a motion in limine seeking to preclude evidence of her posttreatment conduct on the ground that the defendant had not pleaded comparative negligence or contributory negligence pursuant to Practice Book § 10-53. The defendant sought to introduce evidence of “an alternative theory of causation” — that is, that the plaintiffs cellulitis was not caused by the defendant’s failure to observe clean needle techniques, but rather by the plaintiffs wiping the wound with an unsterile item, such as her hand or a discarded tissue in her car, following the procedure. The defendant asserted that the purpose of this evidence was not to establish that the plaintiff was comparatively negligent; instead, it was to show that “[the defendant’s] actions did not cause the plaintiffs injuries.” The defendant argued that “[i]t is beyond dispute that a defendant may offer proof of an alternative cause [of injury] under a denial of the plaintiffs allegation of causation.”

The plaintiff argued that any such evidence should be precluded because the defendant had not asserted comparative negligence or contributory negligence pursuant to Practice Book § 10-53 as a special defense. See General Statutes § 52-114 (“[i]f contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant . . . and the burden of proving such contributory negligence shall rest upon the defendant”); Practice Book § 10-53 (“[i]f contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant”); see also General Statutes § 52-572h (regarding procedures established for determining comparative negligence). Moreover, the plaintiff suggested the defendant improperly was attempting to introduce evidence of comparative negligence without carrying the burden of proof associated with raising such a defense. The plaintiff stated that her position in this regard was supported by this court’s decision in Forrestt v. Koch, 122 Conn. App. 99, 996 A.2d 1236 (2010).

The trial court, Peck, J., agreed with the defendant and denied the plaintiffs motion. The court held that the defendant was entitled to present evidence that the sole proximate cause of the plaintiffs injury was something other than the defendant’s conduct. Although the court acknowledged that “there is a fine line . . . between contributory negligence and a general denial,” it found that “the focus of the defense is on the issue of causation . . . .”

Consequently, at trial, the defendant presented expert testimony from Gary Schleiter, a physician who specialized in internal medicine and infectious disease, that the plaintiffs cellulitis was caused by the plaintiffs wiping of her skin with an unwashed hand or unsterile object in her car after the acupuncture treatment. During closing argument, the defendant urged that the plaintiff’s cellulitis was caused by bacteria that she herself introduced when she wiped her forehead in her car.

In accordance with its ruling on the motion in limine, the court instructed the jury that “the defendant takes the position that it was the plaintiffs own conduct in wiping her forehead in her car after leaving the office of [the defendant] that caused her cellulitis. [The defendant] cannot be held liable if [the plaintiffs] injuries were caused solely by this act, an act over which [the defendant] had no control; therefore if you find that this factor was the sole proximate cause of the plaintiffs injuries and that any negligence on the part of [the defendant] was trivial or inconsequential then you must return a verdict for the defendant.”

The jury found that the defendant violated the relevant standard of care by failing to observe clean needle techniques, specifically by neglecting to swab properly the area of needle insertion in the plaintiffs glabella with an alcohol wipe. The jury did not find, however, that this violation caused the plaintiffs injury. This appeal followed.

On appeal, the plaintiff claims that the court erred in denying her motion in limine seeking to preclude evidence of her posttreatment conduct. Such evidence, the plaintiff claims, could have been properly introduced only if the defendant had pleaded the special defense of comparative negligence or contributory negligence pursuant to § 52-114 and Practice Book § 10-53. Accordingly, the plaintiff continues, it was error for the jury to have been instructed that it could find that the defendant was not liable for the plaintiffs injuries if it found that her own actions were their singular cause. We disagree.

The decisive issue is the distinction between cases in which the defendant asserts that the plaintiff has been comparatively negligent, and thus the defendant’s conduct could also be a proximate cause, and those cases in which the defendant claims that his conduct did not cause the plaintiffs injuries at all. An assertion of comparative negligence is consistent with the plaintiffs rendition of the facts, and therefore must be raised as a special defense. On the other hand, the claim that an actor other than the defendant caused the plaintiffs injuries is inconsistent with a prima facie negligence case, and, thus, can be pursued under a general denial. The essence of the defense at issue in the present case was that the plaintiff was entirely responsible for her injuries; therefore, the court correctly admitted it without the assertion of a special defense.

“The scope of our appellate review depends [on] the proper characterization of the rulings made by the trial court.” (Internal quotation marks omitted.) Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 31-32, 946 A.2d 839 (2008). In the present case, we must decide whether the court applied the correct legal standard in determining that the defendant was permitted to establish that the plaintiffs conduct was the sole proximate cause of her injuries. Our review therefore is plenary. See id., 32.

“The distinction between matters which may be proved under a general denial and matters constituting special defenses, which must be specifically pleaded, was enunciated in Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 327 A.2d 583 (1973), where [our Supreme Court] observed . . . that the issues to be tried may be framed in several ways. A denial of a material fact places in dispute the existence of that fact. Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact. ... If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the new matter must be affirmatively pleaded as a special defense.” (Citations omitted; internal quotation marks omitted.) Bernier v. National Fence Co., 176 Conn. 622, 629, 410 A.2d 1007 (1979). “[T]he purpose and history of the special defense rule . . . helps to clarify its effect. The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way.” (Internal quotation marks omitted.) Pawlinski v. Allstate Ins. Co., supra, 6.

Causation is an element of a cause of action in negligence. Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. 32. “[A] plaintiff must establish that the defendant’s conduct legally caused the injuries, that is, that the conduct both caused the injury in fact and proximately caused the injury. . . . The test of proximate cause is whether the defendant’s conduct is a substantial factor in producing the plaintiffs injury. The substantial factor test asks . . . whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” (Internal quotation marks omitted.) Id., 32-33.

Evidence that an actor other than the defendant was the sole proximate cause of the plaintiffs injuries constitutes a factual scenario “inconsistent with the plaintiffs allegation that the proximate cause of the injuries to the [plaintiff] . . . was the negligence, whether sole or concurrent, of the defendant.” Bernier v. National Fence Co., supra, 176 Conn. 630. Therefore, such evidence properly is admitted pursuant to a general denial. Id.

In situations in which the defendant attempts to show that the plaintiff was the sole proximate cause of his injury, “there is neither need nor room for the doctrine of contributory negligence. . . . Contributory negligence is never properly invoked when the plaintiffs negligence alone causes the damage but only when the negligence of both the plaintiff and the defendant are contributing proximate causes of it.” (Emphasis in original.) 4 F. Harper et al., Torts (3d Ed. 2006) § 22.2, pp. 334-35; cf. Wagner v. Clark Equipment Co., 243 Conn. 168, 184, 700 A.2d 38 (1997) (“[comparative responsibility does not come into play . . . unless the defendant is found to have proximately caused [at least in part] the plaintiffs injuries”).

Thus, the defendant was entitled, under a general denial, to present evidence that the plaintiff caused her own injuries, because this defense constitutes a set of facts inconsistent with the defendant’s liability. See Bernier v. National Fence Co., supra, 176 Conn. 629. Put another way, the defendant did not present evidence that was consistent with the allegations in the complaint, but would nonetheless defeat the plaintiffs personal injury claim. Therefore, there was no danger that such a defense would “ambush” the plaintiff at trial.

The plaintiffs suggestion that the defendant was scheming to avoid the burden of proof associated with a comparative negligence claim is without merit. This contention overlooks the fact that “[cjontributory negligence is never properly invoked when the plaintiffs negligence alone causes the damage . . . .” (Emphasis in original.) 4 F. Harper et al., supra, § 22.2, p. 335. Because the defendant was not attempting to demonstrate that both he and the plaintiff concurrently caused the plaintiffs injury, he simply was not making a comparative negligence claim. Accordingly, there was no need for him to assert this special defense.

The plaintiff attempts to distinguish the rule enunciated in Bernier, which clearly allows a defendant to contest the issue of causation under a general denial, by drawing a distinction between third parties and plaintiffs. The plaintiff concedes that it is proper, under a general denial, for the defendant in a personal injury case to attempt to show that a third party is the sole proximate cause of the plaintiffs injuries, in order to negate its own negligence. She nonetheless argues that the same defense strategy is improper when it is the plaintiff that the defendant asserts is solely responsible for the injury. This is a distinction in search of a difference. The test for whether evidence is admissible pursuant to a general denial is whether it is consistent, or not, with a prima facie cause of action. See Bernier v. National Fence Co., supra, 176 Conn. 629. This analysis does not turn on whether the inconsistent factual scenario asserted by the defendant involves the conduct of the plaintiff instead of a third party. The plaintiff additionally states that allowing a defendant to assert that the plaintiff was the sole proximate cause of the plaintiff’s own injuries would “effectively eviscerate the requirement to specifically plead comparative negligence . . . .” But, again, this contention misses the distinction between comparative negligence, which is consistent with a prima facie personal injury claim and therefore requires notice to the plaintiff, and the assertion that the plaintiff was solely responsible for her own injuries, which does not.

Finally, the plaintiff’s reliance on Forrestt v. Koch, supra, 122 Conn. App. 99, is misplaced. In Forrestt, the plaintiffs sued an ophthalmologist and laser vision center for injuries the patient sustained following LASIK surgery. Id., 103. The defendants asserted as a special defense that the patient was comparatively negligent, in that, among other things, he failed to seek recommended medical treatment immediately after his post-treatment complications became apparent. Id. The defendants withdrew this special defense before closing arguments. Id., 103-104. Despite abandoning the comparative negligence defense, during closing argument, the defendants’ counsel persisted in attempting to shift some of the blame for the patient’s injuries to decisions he made after his injuries became manifest. See id., 104 — 105 (The defendants’ counsel argued before the jury, “[W]e don’t criticize [the patient for his decisions]. We just say, don’t criticize us . . . .” [Internal quotation marks omitted.]). This court held that “the remarks of the defendants’ counsel during closing argument were improper. The defendants had withdrawn their comparative negligence defense that would have permitted the jury to consider the relative contributory negligence of the parties and determine whether the plaintiffs’ recovery should be either barred or diminished. . . . The repeated remarks of the defendants’ counsel concerning [the patient’s] decisions . . . allowed the defendants to insinuate [the patient’s] negligence after having been relieved of the burden of proving as much by a preponderance of the evidence.” Id., 109-10.

Forrestt is inapposite: it dealt with a defendant’s attorney’s attempt to imply, during closing argument, that a plaintiff was comparatively negligent after this special defense had been withdrawn and where the issues were framed such that the plaintiffs decisions had no bearing on the case. Forrestt says nothing about the decisive issue here, that is, whether a defendant may attempt to demonstrate that the plaintiff was the sole proximate cause of her own injuries, following a general denial.

The judgment is affirmed.

In this opinion the other judges concurred.

       Neuropathy is “a disease involving the cranial nerves or the peripheral or automatic nervous system.” Stedman’s Medical Dictionary (27th Ed. 2000).

       Cellulitis is a bacterial skin infection that occurs in the subcutaneous tissue or the dermis, which results in inflammation.

       According to the plaintiffs expert witness, Richard Quintiliani, a physician who specializes in antibiotic therapy, the proximity of the plaintiffs cellulitis to her eye presented the risk of retinal orbital cellulitis, which can spread to the brain or result in meningitis.

       Quintüiani testified that clean needle technique is the process of preparing an area of the skin that will be punctured by, for example, a needle or catheter, to reduce the prevalence of bacteria and, therefore, the risk of infection.

       As to the informed consent claims, the jury found that the defendant had failed to disclose a known material risk of acupuncture, but that a reasonable person in the plaintiffs position, if advised of such a risk, still would have proceeded with the treatment.

       The defendant preliminarily asserts that review of the plaintiffs claims is precluded by the general verdict rule. We disagree. “In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have acjjudicated.” Curry v. Burns, 225 Conn. 782, 790, 626 A.2d 719 (1993). Here, the defendant claims that it is impossible to know whether the jury decided the causation issue in his favor because the plaintiff failed to prove by a preponderance of the evidence that the defendant’s breach of the standard of care was the legal cause of the plaintiffs injury or, alternatively, because the plaintiffs conduct was the sole proximate cause of her injury. The general verdict rule, however, does not apply “to [various] grounds advanced to defeat the claimed cause of action which are admissible under mere denials of facts alleged in the complaint.” (Internal quotation marks omitted.) Id., 796. The rule does apply when the defendant denies the allegations in the complaint and asserts a special defense. See id.; see also Tetreault v. Eslick, 271 Conn. 466, 473, 857 A.2d 888 (2004) (applying general verdict rule where defendants denied allegations of complaint and asserted special defense of superseding cause). Because, as we explain, the defense asserted here was admissible under a general denial, the general verdict rule is not implicated.

       Our discovery procedures are helpful in this regard. In the present case, for example, the plaintiff knew the defendant’s position prior to trial. She filed a motion in limine and did not object on a ground of nondisclosure.

       Moreover, the court’s jury instructions on causation made it clear that comparative negligence was not at issue. The court explained that in order to accept the defendant’s sole proximate cause theory, it must find that the plaintiffs conduct “contribute[d] so powerfully to the production of [her] injury as to make the defendant’s negligent contribution to the injury merely trivial or inconsequential . . . .”