text:
    TERESA M. GUARAGNO v. WILLIAM L. GUARAGNO
    (AC 32740)
    DiPentima, C. J., and Sheldon and Bishop, Js.

      Argued December 6, 2012
    officially released March 19, 2013

      David V. DeRosa, for the appellant (defendant).

      Kathleen M. Zarro, for the appellee (plaintiff).
   Opinion

BISHOP, J.

This appeal arises from the court’s judgment, dated September 2, 2010, on the parties’ post-marital dissolution cross motions for contempt in which the court granted, in part, the motion filed by the plaintiff, Teresa Guaragno, and denied the motion filed by the defendant, William Guaragno. On appeal, the defendant claims that the court improperly: (1) found him in contempt of court for his failure to pay certain healthcare expenses incurred for the benefit of the parties’ minor children in accordance with the terms of the parties’ marital dissolution agreement and judgment; (2) exonerated the plaintiff from any liability arising from her management of Next Step Technologies, LLC (Next Step), and ordered him, inter alia, to reimburse the plaintiff in connection with a certain Next Step credit card transaction; and (3) determined that the plaintiff should be liable to him for only $2000 in attorney’s fees incurred in conjunction with the creation of a trust contemplated by the terms of the parties’ marital dissolution agreement and judgment. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the issues on appeal. At the time of the parties’ marital dissolution on October 17, 2008, they had three minor children for whom the judgment contained certain healthcare provisions. Additionally, they had operated Next Step, which, in essence, they agreed ultimately would become the defendant’s sole property. In conjunction with their marital dissolution, the court incorporated the parties’ separation agreement into its judgment, which contained the following provisions relevant to the issues at hand.

In article 5 of the separation agreement, entitled MEDICAL INSURANCE AND EXPENSES, § 5.1 provides in relevant part: “b. The parties shall equally pay for the benefit of each minor child all unreimbursed reasonable medical, surgical, hospital, optical, psychiatric, psychological and nursing expenses, the costs of prescription drugs, deductible and co-pay costs, and dental and orthodontia expenses. No psychiatric, psychological, orthodontic, or elective, non-emergency surgery or extraordinary medical treatments shall be incurred without the prior consent of both parties, whose consent shall not be unreasonably withheld. The provisions of the maintenance of health insurance are subject to and in accordance with Connecticut General Statutes § 46b-84e.

“c. Neither party, without the prior consent of the other party, which consent shall not be unreasonably withheld, shall incur non-emergency expenses pursuant to this Article, if they are not covered by the medical insurance carrier that is in effect at the time. Both parties shall use service providers which are approved by the medical insurance carrier to the extent practicable and whenever reasonably possible. Both parties shall follow all rules required by the health insurance carrier prior to obtaining non-emergency treatment. Each party shall provide to the other all bills and explanations of benefits within fifteen (15) days of their receipt and reimburse the other party the appropriate un-reimbursed portion within seven (7) days of presentation of such bill and explanation of benefits. The parties shall cooperate with each other in the event that either of them decides to appeal any decision of the health insurance carrier. ...”

In article 9, entitled “NEXT STEP TECHNOLOGIES, LLC,” the separation agreement provides: “9.1 The parties are the owners of Next Step Technologies, LLC (hereinafter [Next Step]). The [plaintiff] shall immediately resign as President of [Next Step] and simultaneously transfer her entire interest in [Next Step] to Kenneth J. Ayers, Trustee, for the benefit of [the defendant]. The trustee shall manage and operate a trust until January 5, 2011, at which time the trust shall terminate and the [defendant] shall be entitled to the corpus thereof. During the trust period, the Trustee shall specifically be granted authority to hire a business manager to operate and manage the financial affairs of [Next Step] and follow Medicare rules and regulations.

“The [plaintiff] further agrees to tender to the [defendant] keys to the business (except for one set which can be used for emergency purposes only until he and the business vacate the property). The [plaintiff] shall also tender the keys to the [Next Step] post office box, Prius, Porsche and boat and relinquish her password for company computer access, and . . . remove her name from all [Next Step] bank accounts. The [plaintiff] shall make no claim for employment-related benefits associated with [Next Step], other than her COBRA election, as more specifically set forth in [the separation agreement].

“b. The [defendant] shall immediately withdraw with prejudice the civil action entitled Next Step Technologies, LLC vs. Teresa Guaragno, which matter is pending in the Superior Court, Judicial District of Danbury bearing docket number DBD-CV-08-4009436-S.

“The [plaintiff] shall not have any ongoing obligations to [Next Step] and she shall not sustain any liability with regard to [Next Step]. From the date of her resignation as President and the transfer of her interest to the Trustee, the [defendant] shall hold the [plaintiff] harmless from and against all liability regarding the company. In the event the parties are personally liable for any assessment, fine or penalty or are sued individually by any governmental agency for any actions arising from the operations of [Next Step] prior to the date of dissolution, they shall equally be responsible for such liability.”

The plaintiff filed a postjudgment motion for contempt dated January 13, 2010, against the defendant in which she claimed, inter alia, that the defendant had failed to reimburse her for one half of certain medical expenses she had incurred on behalf of the children. She claimed, as well, that on October 16, 2008, the day before the parties’ dissolution judgment, she had paid a bill for $11,696 received from an Next Step creditor with a Next Step American Express credit card backed by her personal guarantee, but that, after the dissolution judgment, the defendant reversed the payment transaction, with the result that American Express sought reimbursement from her. She alleged that she paid the sum of $7000 from her personal funds to satisfy this Next Step debt, an amount for which she sought reimbursement from the defendant in addition to attendant attorney’s fees.

On April 6, 2010, the defendant filed a postjudgment motion for contempt in which he alleged, inter alia, that the plaintiff had failed to transfer her interest in Next Step to a trustee for the defendant’s benefit “immediately,” as required by the separation agreement, and that, because of the plaintiff’s delay, he had been required to retain counsel to create the necessary trust instrument and to secure an accountant to perform services in conjunction with the late transfer. He alleged further that while the plaintiff had been in sole control of Next Step, prior to the dissolution judgment and until she transferred her interest to a trustee, she had failed to meet certain business obligations arising before and after the dissolution judgment totaling in excess of $500,000.

The court, Hon. Sidney Axelrod, judge trial referee, found that the plaintiff did incur unreimbursed medical expenses and that the defendant was hable for one half of those expenses. The court, in its discretion, did not hold the defendant in contempt for failing to pay the unreimbursed medical expenses, but ordered the defendant to pay within thirty days of the judgment. The court, however, did hold the defendant in contempt for reversing the payment on the Next Step American Express card and awarded attorney’s fees to the plaintiff. The court further found that the defendant was not entitled to reimbursement from the plaintiff for his claims regarding the plaintiffs failure to meet certain business obligations. Finally, the court did not hold the plaintiff in contempt for failing to create the trust. The court, however, did order the plaintiff to pay the defendant $2000 for the creation of the trust and awarded attorney’s fees for counsel for the defendant. This appeal followed.

Before turning to an analysis of the defendant’s claims on appeal, we examine the appropriate standards of review. As our Supreme Court previously has stated concerning separation agreements in marital dis-solutions: “A judgment rendered in accordance with such a stipulation of the parties is to be regarded and construed as a contract. . . . Accordingly, [o]ur resolution of the [defendant’s] claim is guided by the general principles governing the construction of contracts. A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.” (Citations omitted; internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999). “If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) O’Connor v. Waterbury, 286 Conn. 732, 744, 945 A.2d 936 (2008).

Additionally, as to judicial decision-making in marital dissolution matters generally, this court has stated: “The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) McKeon v. Lennon, 131 Conn. App. 585, 597, 27 A.3d 436, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011).

Finally, this court reviews the trial court’s determination on a motion for contempt for an abuse of discretion. “The abuse of discretion standard applies to a trial court’s decision on a motion for contempt. ... A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . The resolution of conflicting factual claims falls within the province of the trial court. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... We cannot retry the facts or pass on the credibility of the witnesses. ... A reviewing authority may not substitute its findings for those of the trier of the facts.” (Internal quotation marks omitted.) Oldani v. Oldani, 132 Conn. App. 609, 625-26, 34 A.3d 407 (2011). With these standards of review in mind, we turn to the defendant’s claims.

I

We first address the defendant’s claim that the court improperly found him in contempt for his failure to pay one-half the cost of certain unreimbursed healthcare expenses incurred by the plaintiff on behalf of the minor children, and that the court incorrectly ordered him to pay the sum of $818.10, representing one-half the cost of those expenses. Although the defendant does not challenge the amount in question as actually expended, he claims that he should not be liable for these expenses because the plaintiff failed to follow the dictates of the parties’ separation agreement that required her to seek his prior approval of such expenses before incurring them.

Contrary to his claim regarding this issue, the defendant was not found in contempt of court regarding these expenses. Instead, the court explicitly declined to make such a contempt finding. The court did, however, order the defendant to pay the claimed amount on the basis of its finding that the defendant did not object to the provision of healthcare that resulted in these costs. In relevant part, the court opined: “The court does find that the plaintiff did not provide to the defendant advance notice of incurring those charges and therefore he did not give consent to those charges. The defendant would not have objected to any of those charges being incurred if he had been given advance notice. Regardless of what his rights would have been if he had been given advance notice and had objected during the charges, in this case the defendant admits that he would not have objected to any of those charges and would have given consent to them.”

In requiring the defendant to make this payment, the court reasoned that, although the plaintiff did not seek and obtain the defendant’s prior approval, the parties’ separation agreement provided that neither would unreasonably withhold consent for such treatment and associated costs, and that, since the defendant would not have withheld consent, he should, as a practical matter, be obligated to pay one half of the treatment costs. In coming to this determination, we find that the court acted well within the bounds of its discretion.

II

The defendant next claims that the court improperly exonerated the plaintiff from any liability arising from her management of Next Step, improperly ordered him to reimburse the plaintiff in connection with a certain Next Step credit card transaction, and improperly rejected his own claim for reimbursement. We reject these claims.

With respect to the claims arising out of the plaintiffs management of Next Step, the defendant argued that “the company that was finally transferred to the defendant was awash in debts and financial obligations that were incurred during the stewardship of the plaintiff. Upon his receipt of the management of Next Step, the defendant had to contend with taxes, interest, fines, penalties, and audits, from local, state, and federal authorities, including the [Internal Revenue Service], [Department of Revenue Services], Medicare, and the Labor Department. The retirement plan of the company had not filed a mandatory return.” The defendant further claimed that: “After judgment entered, [he] discovered that, while [Next Step’s] finances were controlled by the plaintiff, [Next Step] had failed to meet its payroll in the amount of over $12,000, and had failed to pay debts of the company totaling approximately $500,000.”

In responding to the defendant’s claims, the court made the following additional relevant factual findings. The court found that, within one week of the dissolution judgment, the plaintiff resigned as president of Next Step and removed her name from all records as a Next Step owner, and that, since the dissolution judgment, she had no access to Next Step. In sum, the court found that since the marital dissolution, the plaintiff had not participated in the activities of the business. The court further found that, subsequent to the dissolution judgment, in January, 2009, Ayers declined to act as trustee as contemplated in the parties’ separation agreement, and that although the plaintiff initially tried to find a substitute trustee, the defendant retained the law firm of Shipman & Goodwin, LLP (law firm), in January, 2009, to create the trust instrument. Finally, the court found that the plaintiff transferred her interest in Next Step to the trust created by the law firm as soon as the trust document was prepared.

The defendant also claims that the court improperly ordered him to pay attorney’s fees and to reimburse the plaintiff in connection with a certain Next Step credit card payment she was obligated to make as a result of the defendant’s postjudgment conduct. The court found that, prior to the date of the dissolution judgment, the plaintiff had an American Express card that was used for Next Step expenses and for which she also bore personal liability. The court found further that, on October 16,2008, she utilized Next Step’s American Express card to pay a Next Step creditor the amount of $11,695, but that, after the dissolution judgment, the defendant reversed the credit card payment, with the result that American Express then sought to hold the plaintiff personally hable for the $11,695 payment it had made to the Next Step creditor. Finally, the court found that the plaintiff settled this claim with American Express in March, 2009, by paying American Express $7000 from her own funds.

Both parties made claims regarding this payment. The plaintiff sought reimbursement of the $7000 she paid to American Express and attorney’s fees. The defendant argued that, as a result of the plaintiffs settlement of this claim for $7000, he received a Form 1099 issued by American Express for the sum of $6798, characterized as “other income” and representing the difference between the amount accepted by American Express and its payment of the $11,695 to the Next Step creditor. In making this argument, the defendant reasoned that, pursuant to the parties’ separation agreement, both parties were personally liable for actions arising from their operations of Next Step prior to the date of the dissolution judgment. The court rejected the defendant’s claim regarding the American Express card settlement and its tax consequences. The court also rejected the defendant’s claims that the plaintiff should be required to reimburse him for payments made on other Next Step liabilities incurred before the dissolution judgment.

The court rejected the defendant’s arguments on two bases. As to the defendant’s obligation to pay taxes on the amount of the Next Step debt forgiven by American Express in its settlement with the plaintiff, the court relied on the parties’ separation agreement which provided, in part, that the “plaintiff shall not have any ongoing obligations to [Next Step] and she shall not sustain any liability with regard to [Next Step].” The court relied, as well, on the provision of the separation agreement through which the defendant agreed to withdraw, with prejudice, the Next Step action, in which Next Step claimed, in essence, that due to the plaintiffs alleged failures to properly manage the affairs of the business before the dissolution judgment, Next Step had suffered substantial harm, including significant indebtedness. The court reasoned that, because the defendant had agreed to withdraw such claims against the plaintiff with prejudice, he was prevented from raising them in the form of a contempt motion in the present action. In addition to rejecting the defendant’s claim for reimbursement flowing from the tax consequences of the American Express settlement, the court found the defendant in contempt of the dissolution judgment, ordered the defendant to reimburse the plaintiff the sum of $7000, and awarded attorney’s fees to her in the amount of $1000 in regard to this finding.

As to the plaintiff’s potential liability for Next Step obligations, the defendant argued that the plaintiff should share personal liability for the business obligations arising both before the dissolution judgment and after until she transferred her interest in Next Step to the trust. In making this claim, the defendant argued that two consecutive sentences of the separation agreement should be read together, with the result that the plaintiff should only be relieved of personal liability for Next Step debts as of the date on which she transferred her interest to the trust. The court disagreed and reasoned, as to prejudgment liabilities of Next Step, that the plaintiff was exonerated by the defendant’s withdrawal, with prejudice, of the Next Step action in conjunction with the dissolution judgment. As to postjudgment liabilities, the court found that the express terms of the separation agreement, entered into at the time of the dissolution judgment, clearly and unambiguously provided that she would not have any ongoing obligation to Next Step and that she would not sustain any liability with regard to the business.

We find no fault with the soundness of the court’s reasoning or with the court’s exercise of its discretion with regard to these related claims. As found by the court, the plaintiff attempted to pay an Next Step bill with an American Express card dedicated to the business but for which she also had personal liability. If the defendant had not reversed this payment, the result would have been payment of the business’s indebtedness with a credit card dedicated to that purpose. However, because of the defendant’s conduct in reversing this payment after the marital dissolution, the plaintiff was obligated to utilize her personal funds to compromise a claim made personally against her by American Express. As a consequence of the parties’ agreement, however, she should not have been exposed to any personal liability after the marital dissolution for Next Step debts and she became hable on this indebtedness only because of the defendant’s inappropriate conduct reversing the American Express payment. We agree, as well, with the court’s analysis of the import of the •withdrawal of the Next Step action against the plaintiff and the significance of the separation agreement language exonerating her from any personal liability regarding Next Step.

The defendant’s claim that the language exonerating the plaintiff, when read in conjunction with the next sentence regarding the transfer of the business, leads to the conclusion that he was required to hold the plaintiff harmless from any and all liability regarding Next Step only once she transferred her interest in Next Step to the trustee, misreads the import of this sentence. The provision he cites concerns only the timing of the onset of the defendant’s obligation to hold the plaintiff harmless from any Next Step-related liabilities, but does not affect the other language of the separation agreement providing that the plaintiff should not have any ongoing obligation to Next Step.

In sum, we conclude that the record amply supports the court’s factual findings and we believe that the court’s legal conclusions regarding the import of the relevant language of the separation agreement are supported by the record and the application of law to the properly found facts. Further, the court’s award of attorney’s fees was well within the ambit of the court’s discretion. See Esposito v. Esposito, 71 Conn. App. 744, 748, 804 A.2d 846 (2002).

m

The defendant finally claims that the court should have awarded him an amount greater than the award of $2000, in recognition of the substantially greater legal fees that he claims to have incurred for the preparation of the trust instrument necessary to transfer Next Step to his sole ownership. We reject this claim.

The following additional facts are relevant to our discussion of this issue. As noted previously in this opinion, the parties’ separation agreement required the plaintiff to “immediately resign as President of [Next Step] and simultaneously transfer her entire interest in [Next Step] to Kenneth J. Ayers, Trustee, for the benefit of [the defendant].” The court found, and the parties do not dispute, that although the plaintiff resigned as president of Next Step within one week from the date of dissolution and took other steps to remove herself from the operations of the business, she did not simultaneously transfer her interest to Ayers. Rather, in January, 2009, Ayers indicated that he would not act as trustee. The court found, further, that while the plaintiff initially attempted to find someone else to serve as trustee, the defendant also sought the assistance of an attorney to create the necessary trust document. The court indicated that the defendant retained the law firm in January, 2009, to draft the trust document, in addition to “other purposes,” that the trust document was drafted by the law firm the following summer, and that the plaintiff executed it immediately.

In responding to the defendant’s motion for contempt and request for fees in regard to the creation of the trust, the court carefully examined both the express language of the agreement and its general tenor. As to the former, the court found that, “there was no specific and definite language in the separation agreement requiring the plaintiff to create the trust.” Accordingly, the court declined to hold the plaintiff in contempt for her failure to have the trust created. Regarding the general tenor of the agreement, however, the court reasoned that, because the plaintiff undertook to transfer her interest to the trustee, it would be consistent with such obligation that the plaintiff should be held responsible for the legal fees attendant to creating the trust. Accordingly, the court turned to the evidence regarding fees assessed by the law firm for this purpose. In that regard, the court found that the defendant failed to provide adequate proof of the legal costs in preparing the trust document. Although the defendant presented an invoice from the law firm for $21,639.75, which was captioned “Transfer of Business,” the court found that the defendant had failed to provide adequate evidence of the actual cost of preparing the trust document to warrant an order that the plaintiff pay the full invoice.

The court awarded $2000 to the defendant and opined: “No credible evidence has been presented as to the amount of the bill of [the law firm] that relates solely to the creation of the trust and the amount of the bill that was for other purposes.” On the basis of our review of the invoice, we find no fault with the court’s view that the invoice, by its terms, does not support the defendant’s claim for reimbursement in an amount greater than the court’s award of $2000. We note that the invoice itemized work by eight individuals spanning the time period from January though December, 2009, ending well after the trust document had been created and executed, and encompassing seventy-two hours of legal effort. We find no fault with the court’s conclusion that one cannot reasonably determine, from this document, the law firm work effort dedicated to the creation of the trust. As to the defendant’s testimony in this regard, the court is in the best position to make credibility determinations, and the court, in this instance, did not find credible evidence in support of the defendant’s claims. It is a bedrock principle of appellate jurisprudence that: “The fact-finding function is vested in the trial court .... Appellate review ... is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court.” Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). Accordingly, and mindful of the court’s assessment of the evidence in this regard, we do not find that the court abused its discretion in failing to award the sum sought by the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       On October 17,2008, the court, Reynolds J., rendered judgment dissolving the parties’ marriage and incorporating the parties’ separation agreement.

       We refer in this opinion to the civil action commenced by the defendant on behalf of Next Step against the plaintiff as the Next Step action.

       The plaintiffs motion for contempt also included allegations that she was personally obligated to make other payments on behalf of Next Step from her personal funds for which she sought reimbursement, that the defendant failed to cause Next Step to vacate premises utilized by another business formerly owned by the parties, but was now owned by the plaintiff, and that the defendant had failed to cooperate in regard to her entitlement to COBRA continuation health coverage. See Consolidated Omnibus Budget Reconciliation Act of 1985,29 U.S.C. §§ 1161 through 1168. From our review of the court’s memorandum of decision and later articulation, it does not appear that these claims were litigated; nor are these issues presented on appeal.

       The defendant also claimed in his motion for contempt that the plaintiff had violated the provision of the parties’ separation agreement regarding custody and visitation that neither party would relocate from his or her present location without providing the other party sixty days written notice. In this regard, the defendant alleged that the plaintiff had relocated from her prior residence without providing him the requisite notification. Finally, and in regard to other provisions in the agreement regarding the children, the defendant claimed that the plaintiff had incurred e:jqpenses and demanded reimbursement from him for certain extracurricular activities to which the defendant had not agreed. For this claimed infraction, the defendant sought an order that the plaintiff be solely liable for the costs of the children’s extracurricular activities for which she did not seek his prior permission.
      Notwithstanding the breadth of the defendant’s contempt motion, the defendant’s claims on appeal are limited to the court’s response to his allegations relating to Next Step and the parties’ respective obligations regarding its ownership and liabilities arising before and after the dissolution judgment, and to the court’s treatment of the plaintiffs motion for contempt regarding healthcare expenses and her requests for reimbursement and attorney’s fees.

       In relevant part, in the Next Step action, it alleged the following:
      “8. Ms. Guaragno has failed to discharge her fiduciary duties as Manager of Next Step, as set forth in Section 5.5(a) of the Operating Agreement. As a direct and proximate cause of Ms. Guaragno’s failure to manage the LLC carefully and competently, the LLC has suffered and will suffer substantial damages. . . .
      “10. Due to Ms. Guaragno’s failure to timely deliver business correspondence, Next Step has not paid several bills submitted by its insurance providers, vendors, and suppliers for services provided. As a direct and proximate result of Ms. Guaragno’s negligence, important relationships with its insurance providers, vendors, and suppliers have been unnecessarily placed in jeopardy.”

       The relevant sentences in the separation agreement are as follows: “The [plaintiff] shall not have any ongoing obligations to [Next Step] and she shall not sustain any liability with regard to [Next Step], From and after the date of her resignation as president and the transfer of her interest to the Trustee, the [defendant] shall hold the [plaintiff] harmless from and against all liability regarding the company.”

       We note that the defendant has not challenged this determination on appeal.

       It is noteworthy that the invoice was sent to:
      “Next Step Technologies, LLC
      “Attention: William Guaragno
      “9 Berkshire Blvd.
      “Bethel, CT 06801”
      Because it appears that Next Step, not the defendant, was billed for this work, one can reasonably question the propriety of an order that the plaintiff make any payment regarding this bill since, as noted by the court, the parties’ separation agreement relieved her of personal responsibility for any Next Step liabilities. Because, however, the plaintiff has not filed a cross appeal, we need not decide whether the court incorrectly ordered her to make any payment for the law firm’s work.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANWAR S.

    (AC 34635)
    Lavine, Alvord and Foti, Js.

      Argued December 4, 2012
    officially released March 19, 2013

      Elizabeth M. Inkster, assigned counsel, with whom was Desmond Ryan, certified legal intern, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, Charles M. Stango, senior assistant state’s attorney, and Melanie Cradle, assistant state’s attorney, for the appellee (state).

       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 identify may be ascertained. See General Statutes § 54-86e.

   Opinion

FOTI, J.

The defendant, Anwar S., appeals from the judgment of conviction rendered following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The defendant claims that the trial court improperly (1) denied his motion in limine to preclude laboratory results on the ground that they constituted testimonial hearsay, (2) precluded the admission of testimony pursuant to General Statutes § 54-86f regarding the past sexual history of the victim, T, and (3) denied the defendant’s motion to strike evidence as irrelevant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2008, T was residing in Connecticut along with her mother, her half brother and her stepfather, the defendant. In or about March, 2008, T’s mother found her masturbating and asked T what she was doing. T stated in response, “Mom, don’t get mad [at dad], but it only happened one time . . . .’’An argument then ensued between T’s mother and the defendant regarding whether he had engaged in inappropriate sexual conduct with T. Shortly thereafter, T and her mother moved out of the family residence, while T’s half brother remained with the defendant.

In July, 2008, T returned to the defendant’s home to spend time with the defendant and her half brother. During this visit the defendant sexually assaulted T by engaging in penile-rectal intercourse. After the July, 2008 visit, T relocated with her mother to Kansas and then ultimately relocated to California. Once in California, T told her mother that the defendant had assaulted her not just once, but multiple times during the three preceding years.

In December, 2008, T and her mother returned to Connecticut, and in January, 2009, T’s mother filed a complaint against the defendant with the police. The police department made an appointment for T to be seen at the Yale Child Sexual Abuse Clinic (clinic) for a forensic interview with a social worker. Because T reported information indicating that a medical examination should be performed, the social worker made another appointment for T to receive a medical examination at the clinic.

Janet Murphy, a pediatric nurse practitioner and the associate medical director for the clinic, conducted a medical examination of T. Murphy testified that she is a member of a multidisciplinary team (team), which is a group of professionals from different disciplines involved in the investigation and evaluation of child abuse and sexual abuse. Murphy’s role on the team is to conduct medical evaluations of the children at the clinic. Because T reported penile penetration, Murphy obtained specimens from T’s genital area to screen for sexually transmitted infections. The vaginal screening was done via a urine specimen, and the rectal screening was completed with a swab. T’s urine and rectal test results indicated that she tested positive for chlamydia, a sexually transmitted infection usually acquired from sexual contact.

Murphy stated that treatment, in a case involving possible sexual abuse, requires a confirmatory test to ensure that the results were not a false positive. Accordingly, Murphy contacted T’s mother, who had already returned to California, to inform her of T’s positive test results and to make arrangements for T to be seen at a clinic in California. To facilitate T’s tests, Murphy spoke with Fred Bruhn, a physician at a clinic in California, regarding T’s positive results. Bruhn then set up an appointment to have T evaluated, during which she underwent confirmatory tests consisting of a vaginal swab for chlamydia culture, a rectal swab for chlamydia culture, and a repeat of the urine tests also conducted in Connecticut. The vaginal swab culture was positive, the rectal swab was negative, and the urine test was positive. Murphy received a verbal report of these results from the physicians who examined T in California. According to Murphy, “[t]he fact that the [California] tests were positive tells me chlamydia was present in the genital location of her body.”

Before trial, the defendant filed a motion in limine to preclude evidence of the laboratory tests performed on T. The court denied the defendant’s motion, holding that the evidence was relevant and that the probative value outweighed the danger of unfair prejudice. In so holding, the court found that “[t]he defendant’s objections, as to the testing . . . the nature of the testing . . . who did the testing, and the protocols . . . [go] to the weight of the evidence . . . but does not go to the admissibility.” The results of the Yale clinic tests were admitted as business records, and the results of the California tests were admitted through Murphy’s testimony. Additional facts will be set forth as necessary.

I

The defendant asserts that the trial court improperly (1) admitted the Yale clinic laboratory results as physical evidence and (2) allowed Murphy to testify as to the results of the Yale and California chlamydia tests. Specifically, the defendant asserts that the results of both tests should have been precluded as testimonial hearsay under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We disagree.

We first set forth the applicable standard of review. “Under Crawford v. Washington, supra, 541 U.S. 68, the hearsay statements of an unavailable witness that are testimonial in nature may be admitted under the sixth amendment’s confrontation clause only if the defendant has had a prior opportunity to cross-examine the declarant. Hearsay statements that are nontestimo-nial in nature are not governed by the confrontation clause, and their admissibility is governed solely by the rules of evidence. . . . Thus, the threshold inquiry for purposes of the admissibility of such statements Under the confrontation clause is whether they are testimonial in nature. Because this determination is a question of law, our review is plenary ....

“In Crawford, the Supreme Court declined to spell out a comprehensive definition of testimonial .... Instead, the court defined a testimonial statement in general terms: A solemn declaration or affirmation made for the purpose of establishing or proving some fact. . . . The court did note, however, three formulations of th[e] core class of testimonial statements . . . [1] ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially ... [2] extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions . . . [and 3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial .... State v. Slater, [285 Conn. 162, 169-70, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008)].

“[I]n Davis v. Washington, [547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)] the United States Supreme Court elaborated on the third category and applied a primary purpose test to distinguish testimonial from nontestimonial statements given to police officials, holding: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. State v. Smith, 289 Conn. 598, 623, 960 A.2d 993 (2008). Our Supreme Court reaffirmed this precedent by holding that whether a statement is testimonial in nature focuses on the reasonable expectation of the declarant that, under the circumstances, his or her words later could be used for prosecutorial purposes.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Brown, 112 Conn. App. 131, 134-36, 961 A.2d 481 (2009); see also State v. Slater, supra, 285 Conn. 172 (“it is clear that much of the Supreme Court’s and our own jurisprudence applying Crawford largely has focused on the reasonable expectation of the declarant that, under the circumstances, his or her words later could be used for prosecu-torial purposes”).

Addressing the defendant’s claims in turn, we first discuss whether the Yale clinic test results were testimonial in nature and, thus, whether their admission violated the defendant’s right to confront witnesses against him. The defendant argues that the reports in the present case are analogous to those in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011), and therefore fall within the core class of testimonial statements. We disagree.

Our inquiry turns on the reasonable expectation of the laboratory analysts, who prepared the report, under the circumstances in this case. See State v. Slater, supra, 285 Conn. 172. That the laboratory report also serves a forensic purpose is insufficient to render it testimonial. In fact, there is no requirement that the laboratory results serve exclusively a medical purpose, but instead Davis requires a primarily nonevidentiary purpose. See State v. Arroyo, 284 Conn. 597, 632 n.20, 935 A.2d 975 (2007) (“[requiring that [the medical examination] serve an exclusively medical purpose in order to be considered nontestimonial ... is simply not based on an accurate reading of Davis”).

In Melendez-Diaz, the police seized several small plastic bags containing cocaine from the defendant’s car and submitted these bags to a state laboratory for chemical analysis. Melendez-Diaz v. Massachusetts, supra, 557 U.S. 308. The certificates of analysis reported the weight of the bags as well as the substance found within. Id. The analysts who prepared the report were employed by a state laboratory and swore to the certificates before a notary public. Id. During trial, the prosecution submitted these certificates of analysis into evidence. Id., 309. The United States Supreme Court concluded that these documents were testimonial in nature. Id., 310. Although denominated “certificates,” the reports were clearly affidavits that were made for the propose of establishing some fact and, as such, “[w]ere functionally identical to five, in-court testimony.” Id., 310-11.

Similarly, in Bullcoming, the results of the defendant’s blood alcohol concentration test were introduced during trial through the five testimony of an analyst who did not perform the test. Bullcoming v. New Mexico, supra, 564 U.S. 651. The arresting officer obtained the defendant’s blood sample pursuant to a warrant and witnessed the blood draw. Id., 653. The law enforcement officer then provided this seized evidence to a state laboratory. Id. The laboratory’s report contained information filled in by the arresting officer, the reason the suspect was stopped by the officer and the time the blood was drawn. Id. The laboratory report referred to various corut rules regarding the admission of certified blood alcohol analyses and presented a certificate of the analyst who tested the sample, which affirmed the blood alcohol level, that the seal of the sample was intact when received, that the analyst’s statements were correct and that the results were obtained by following the proper procedures. Id., 653, 665. The court, in Bullcoming, recognized that “[a]n analyst’s certification prepared in connection with a criminal investigation ... is ‘testimonial,’ and therefore within the compass of the Confrontation Clause.” Id., 658-59. Although the absence of an oath is not dispositive, the certificate in Bullcoming closely resembled the certificate in Melendez-Diaz, as the analyst’s certificate was formalized in a signed document reporting results pertaining to seized evidence provided by a law enforcement officer. The presence of such formalities was sufficient to qualify the analyst’s assertions as testimonial.

The laboratory results submitted into evidence in this case are distinguishable from the aforementioned cases in light of law enforcement’s limited involvement in facilitating the testing. In the present case, the analysis was requested by Murphy, a medical staff member, rather than a law enforcement officer. Although a detective first referred T to the clinic for a forensic interview, it was the social worker who referred T to Murphy. Murphy conducted a medical examination, during which she collected specimens for testing, which were then examined by the analyst who ultimately prepared the report. Furthermore, the specimens in the present case were not seized by law enforcement, and the officers neither witnessed the collection of the specimens nor completed the laboratory request forms. Finally, the laboratory and its analysts are affiliated with Yale-New Haven Hospital rather than a state laboratory mandated to perform such analyses at the request of law enforcement. Given the attenuated nature of law enforcement’s involvement, the laboratory analysts, having received the request from a medical staff member, would not reasonably expect that the report would be used for a prosecutorial purpose.

Although the absence of an oath is not dispositive in determining whether a statement is testimonial, we conclude that the laboratory report in the present case lacks the indicia of formality that were present in both Melendez-Diaz and Bullcoming, and, thus, was not a testimonial statement. In this case, the report provided information including the patient’s name, the specimen source, the results of the analyses, the dates and time the specimens were collected and received, and the date and time the results were reported. The report, however, did not provide information regarding admissibility of laboratory results, it was not notarized and it did not bear any form of certification as to the accuracy of the analyst’s statements or the procedures used. Moreover, the report was devoid of any accusatory information such as the defendant’s identity or details regarding T’s contraction of the infection. These circumstances, viewed objectively, would not have led the analyst reasonably to believe that his or her statements in the laboratory report would later be used at trial. For the foregoing reasons, we conclude that the analyst’s statements were not testimonial in nature and, thus, the confrontation clause was not implicated.

We next address the defendant’s claim that the California clinic test results, admitted through Murphy’s testimony during trial, were testimonial in nature and, thus, their admission violated his constitutional right to confrontation. We conclude that the circumstances under which the California results were generated would not have led the analysts reasonably to believe that this report would be used primarily for prosecu-torial purposes.

As with the Yale tests, law enforcement’s involvement in initiating the California tests was attenuated at best. Murphy initiated the laboratory analyses when she referred T to Bruhn for confirmatory testing and treatment. Specimens were then collected at the California clinic and sent to a laboratory for analysis, and the results were ultimately reported by a laboratory analyst to the California clinic. In the context of multiple technicians working on a DNA profile, the United States Supreme Court has observed that “[w]hen the work of a lab is divided up [among multiple persons] it is likely that the sole purpose of each technician is simply to perform his or her task in accordance with accepted procedures.” Williams v. Illinois, U.S. , 132 S. Ct. 2221, 2244, 183 L. Ed. 2d 89 (2012). We find this principle instructive in the present case. Akin to the multiple technicians in Williams, the laboratory analysts in this case, having received the request from a physician in Califomia that stemmed from several previous referrals, reasonably could have understood the request to be for a medical purpose and, thus, performed their isolated tasks accordingly without any further consideration.

Although the state concedes that the California reports serve a dual medical-prosecutorial purpose, the defendant has not pointed us to any evidence in the record that the laboratory analysts understood the request as such. Murphy testified that T’s laboratory results were reported to her verbally by T’s physician and not the laboratory analysts. These circumstances lessen the likelihood that the analysts were aware of either Murphy’s or Connecticut law enforcement’s involvement. Moreover, although this test served a dual purpose of confirming the Yale clinic results and providing medical treatment to T, Murphy’s testimony is devoid of any evidence that the California laboratory results bore the indicia of formality sufficient to render the results a solemn declaration and, consequently, testimonial. See Bullcoming v. New Mexico, supra, 564 U.S. 647; Melendez-Diaz v. Massachusetts, supra, 557 U.S. 305. Because we conclude that the statements were not testimonial, their admission into evidence did not violate the defendant’s right to confrontation.

II

The defendant next asserts that the trial court abused its discretion in precluding the admission of evidence pursuant to § 54-86f indicating that T had sexual contact with an individual other than the defendant. Specifically, the defendant claims that the exclusion of this evidence violated his constitutional rights to confrontation, cross-examination, compulsory process, due process, a fair trial and to present a defense by (1) preventing him from showing an alternate source for T’s sexually transmitted disease, (2) preventing him from providing an alternate source for T’s sexual knowledge (the mother’s observations of T’s masturbation) and (3) eliminating a line of questions regarding T’s and her mother’s credibility regarding motive, bias and interest. The following additional facts and procedural history are relevant to our resolution of this claim.

The state filed a motion in limine to preclude evidence regarding T’s collateral disclosures of a separate incident of sexual abuse committed by an individual referred to as “Uncle J.B.” The parties do not dispute that T, while residing in California, was sexually assaulted by Uncle J.B. in the latter half of 2008. T disclosed the incident, but the allegations were not pursued by her family or the California authorities. The state argued that because T’s allegations regarding Uncle J.B. involved both parties being fully clothed, the collateral allegation was not relevant as a means of explaining T’s chlamydia, and its admission would therefore prejudice T and confuse the jury.

The defendant filed an opposition to the state’s motion in limine and a motion to admit this evidence pursuant to § 54-86f. Specifically, the defendant argued that the collateral disclosures were relevant evidence regarding an alternative source for T’s advanced sexual knowledge and her sexually transmitted disease, as well as a means of questioning T’s and her mother’s credibility due to motive, bias or interest. The defendant also asserted that the assault committed by Uncle J.B. was relevant to his claim of actual innocence by establishing that T’s subsequent conduct was inconsistent with the defendant’s having assaulted her.

The court granted the state’s motion in limine, thereby precluding evidence regarding the sexual assault committed by Uncle J.B. In reaching its conclusion, the court found the timing of Uncle J.B.’s assault relevant. The court understood the facts as follows: “[I]n May of 2008, [T’s mother] discovered her engaging in certain behavior that led her to question her daughter . . . [and shortly thereafter T] had disclosed [to her mother] what had happened to her at the hands of the defendant. [The] [m] other moved out of the house, and, eventually, moved to other states.” The court found that “Uncle J.B. could not have been the source of knowledge of other behavior because when [T] disclosed [the assault committed by the defendant] to the mother, she hadn’t even met Uncle J.B., at that point and time.” The court further concluded, based on the attorneys’ recitation of the facts, that Uncle J.B. could not have been the source of chlamydia because T had her clothes on during the incident. The court specifically held that it found the probative value of this evidence, as a potential alternate source for T’s advanced sexual knowledge and sexually transmitted disease, “to be extremely, extremely, low [due] to the fact that it does not have probative value [and has] prejudicial effect outweighing any probative value.”

As a preliminary matter we set forth the appropriate standard of review that will guide our analysis. “We review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law . . . for an abuse of discretion. State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007). 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. State v. Snelgrove, 288 Conn. 742, 758, 954 A. 2d 165 (2008). The trial court has wide discretion to determine the relevancy [and admissibility] of evidence .... State v. Johnson, 289 Conn. 437, 462, 958 A.2d 713 (2008). In order to establish reversible error on an evidentiary impropriety . . . the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.” (Internal quotation marks omitted.) State v. Cecil J., 291 Conn. 813, 818-19, 970 A.2d 710 (2009).

The rape shield statute, § 54-86f, limits the use of the victim’s prior sexual conduct. Section 54-86f provides in relevant part: “[N]o evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of . . . disease ... or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. ...”

“The rape shield statute directs the court to examine the defendant’s constitutional rights, implicating both his sixth amendment right to confront witnesses and his fourteenth amendment due process right to call witnesses on his own behalf. . . . [T]he right to confront and to cross-examine victims of sexual assault about their sexual histories is not absolute and may bow to accommodate other legitimate interests. . . . One of the legitimate interests is the court’s right, indeed, duty, to exclude irrelevant evidence. ... If the court determines that the proffered evidence is not relevant, the defendant’s right to present witnesses in his own behalf has not been affected and the evidence can properly be excluded.” (Citations omitted; internal quotation marks omitted.) State v. Farah, 126 Conn. App. 437, 450-51, 13 A.3d 1108, cert. denied, 300 Conn. 931, 17 A.3d 68 (2011).

“A defendant who seeks to introduce evidence under one of the exceptions of § 54-86f must first make an offer of proof. State v. Cecil J., 99 Conn. App. 274, 280-81, 913 A.2d 505 (2007), aff'd, 291 Conn. 813, 970 A.2d 710 (2009). . . . Offers of proof are allegations by the attorney ... in which he represents to the court that he could prove them if granted an evidentiary hearing. . . . The purpose of an offer of proof has been well established by our courts. First, it informs the court of the legal theory under which the evidence is admissible. Second, it should inform the trial judge of the specific nature of the evidence so that the court can judge its admissibility. Third, it creates a record for appellate review. . . . Additionally, an offer of proof should contain specific evidence rather than vague assertions and sheer speculation. . . . [T]he defendant bears the burden of establishing the relevance of proffered testimony.” (Citations omitted; internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 771, 991 A.2d 1086 (2010).

“A clear statement of the defendant’s theory of relevancy is all important in determining whether the evidence is offered for a permissible purpose. State v. Sullivan, 244 Conn. 640, 647, 712 A.2d 919 (1998). . . . [I]n order for evidence of a victim’s prior sexual conduct to be admissible under § 54-86f to show a source for the victim’s sexual knowledge, [pjrior to trial the defendant must make an offer of proof showing: (1) that the prior acts clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to [the] defendant’s case; and (5) that the probative value of the evidence outweighs its prejudicial effect.” (Citation omitted; internal quotation marks omitted.) State v. Cecil J., supra, 291 Conn. 825.

We first address whether the court abused its discretion by precluding the proffered evidence, on the ground that it had little probative value, which was outweighed by its prejudicial effect. The defendant argues that the court improperly credited the state’s representation of the facts in reaching its conclusion that the assault committed by Uncle J.B. could not have been the source for T’s sexually transmitted disease or advanced sexual knowledge. The state, however, contends that the defendant failed to make an offer of proof sufficient to establish relevancy. We agree with the state and conclude that the trial court did not abuse its discretion.

The defendant’s assertion that he was unable to meaningfully contest the state’s version of events because the assault committed by Uncle J.B. was not further investigated is unavailing. The defendant bears the burden of establishing the relevance of the proffered testimony by making an offer of proof informing the court of the specific nature of the evidence, rather than making vague or speculative assertions. State v. Martinez, supra, 295 Conn. 771-72. The defendant asserted that because Uncle J.B. assaulted T, he could have been the source of T’s infection and advanced sexual knowledge and, therefore, a good faith inquiry was warranted due to the lack of evidence pertaining to the assault. Such an assertion, however, is speculative, as the record reveals that the defendant failed to provide specific evidence to refute the state’s representation of the chronological order of events and the distinguishable nature of the assault. As the state aptly noted, defense counsel did not embellish his proffer by calling any witnesses outside the presence of the jury or claiming that the state hampered his efforts to make a proffer. The trial court was within its discretion to conclude that (1) the collateral assault could not be the source of T’s sexual knowledge because T had not yet met Uncle J.B. at the time her mother found her masturbating and (2) that because the nature of the collateral assault differed from the one at bar, as it did not involve the type of genital contact necessary to transmit chlamydia, it could not serve as an alternate source for T’s sexually transmitted infection. We therefore conclude that the court did not abuse its discretion by precluding inquiry into the collateral sexual assault, as it was not relevant to any critical issue in the present case.

Ill

The defendant finally claims that the trial court erred by refusing to strike the chlamydia evidence as irrelevant or, alternatively, that the evidence was unfairly prejudicial. We disagree. The following facts and procedural history are relevant to our resolution of this claim.

The defendant filed a motion to strike and for a curative instruction pertaining to all testimony relating to T’s chlamydia testing and positive results on the grounds that the evidence was irrelevant and more prejudicial than probative. Specifically, the defendant claimed that the state failed to establish any link between him and the condition of T because no evidence was offered to connect him to the transmission of the disease and T’s sexual history was speculative. The court denied the motion, reasoning “that the evidence, as to chlamydia, [was] probative as to the [child’s report of] having sexual contact . . . .” The court further noted that the state, during its closing argument, could represent only that T had chlamydia and not that the defendant was the source, “because that would be speculative.”

It is well established that “[t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” State v. McClelland, 113 Conn. App. 142, 156, 965 A.2d 586, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009).

We readily conclude that the court properly determined that the evidence was relevant and probative as to T’s having had sexual contact. See Conn. Code Evid. § 4-1. “A relevant fact is one that has a logical tendency to aid the trier in the determination of an issue. . . . Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn. App. 359, 378, 805 A.2d 130 (2002). No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience.” (Internal quotation marks omitted.) Harrison v. Hamzi, 77 Conn. App. 510, 516-17, 823 A.2d 446, cert. denied, 266 Conn. 905, 832 A.2d 69 (2003). Whether the defendant sexually assaulted T was a disputed, material issue of fact. T was diagnosed with chlamydia, which, according to expert testimony, is transmitted most commonly through sexual contact and requires some degree of penetration by an individual infected by the disease. T testified that she had sexual contact with the defendant when he assaulted her, penetrating her vaginally and anally. Furthermore, T’s medical records provided that she was not sexually active. Because T’s diagnosis logically tended to prove that she had sexual contact with an individual, the evidence that she had the requisite contact only with the defendant made it more likely that the defendant engaged in the conduct with which he was charged.

The defendant alternatively asserts that evidence pertaining to T’s chlamydia diagnosis was unfairly prejudicial, as it had an adverse effect on the defendant beyond tending to prove that T had sexual contact. See State v. James G., 268 Conn. 382, 399, 844 A.2d 810 (2004) (“evidence is excluded as unduly prejudicial when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence” [internal quotation marks omitted]). Specifically, the defendant claims that the evidence compelled the jury to speculate that he was also infected with chlamydia. We are not persuaded. This evidence, by itself, was probative of the fact that T had the type of sexual contact with an individual necessary to transmit the infection and does not lead us to conclude that it was unfairly prejudicial. Furthermore, by the time the jury heard testimony regarding T’s diagnosis, T had already testified specifically that she was sexually assaulted by the defendant, and her mother’s testimony corroborated T’s report of the incident. See id., 400 (evidence less likely to unduly arouse jurors’ emotions when similar evidence has already been presented to jury). The evidence pertaining to chlamydia was consistent with other evidence presented by the state at trial, and we cannot conclude that its admission was unfairly prejudicial to the defendant. For the foregoing reasons we conclude that the trial court did not abuse its discretion in denying the defendant’s motion to strike.

The judgment is affirmed.

In this opinion the other judges concurred.

       T’s mother and the defendant were never married, but T referred to the defendant as her stepfather because he had raised her. T’s half brother is the biological child of T’s mother and the defendant.

       At the direction of the defendant, T had refrained from reporting these previous incidents of abuse. During that three year period, to deter further abuse from the defendant, T began wearing pants under her nightgowns or multiple pairs of underwear.

       Murphy stated that chlamydia can be contracted in útero as well as through sexual contact, but that T’s infection was unlikely to have resulted from the birth process, as those infections are usually discovered within the first three years of the child’s life and T was twelve years old at the time of her examination.

       Murphy distinguished cases of sexual abuse from those in which an individual is sexually active and infected with chlamydia — in the latter instance treatment would be given without confirmatory tests.

       Murphy testified that the nucleic acid amplification test, conducted in California, amplifies genetic material of the organism while cultures actually grow the organism. That test is more sensitive than a culture, as it requires less of the genetic material of chlamydia to detect it.

       The defendant did not claim that the laboratory results were otherwise inadmissible.

       We disagree with the defendant’s assertion that Mruphy, as a member of the team established pursuant to General Statutes § 17a-106a, was operating as law enforcement personnel. Our Supreme Court has observed that “[t]he stated purposes of the[se] multidisciplinary teams includes the advancement and coordination of the prompt investigation of suspected cases of child abuse, but also includes the goals of reducing the trauma to the child victim and ensuring the protection and treatment of the child victim.''' (Emphasis added.) State v. Arroyo, supra, 284 Conn. 634. “The mere fact that police are involved . . . because they are made privy to the information obtained ... is not sufficient, without more, to render the [statements] testimonial.” Id., 632 n.20. Similarly, in Slater, our Supreme Court held that the statements made to health care personnel are not automatically testimonial merely because the medical personnel were members of a team, organized pursuant to General Statutes § 19a-112a, that also included law enforcement officers. State v. Slater, supra, 285 Conn. 184 n.14. In the present case, Murphy examined T and ordered various tests for medical purposes, distinct from law enforcement’s investigatory objectives. Indeed, “[an assault victim] is necessarily in need of medical attention.” Id., 185. We conclude that Murphy’s status as a team member is insufficient, by itself, to render her law enforcement personnel and, thus, the laboratory results in this case were not generated at the behest of law enforcement.

       Our decision today obviously does not eliminate the possibility that, under a different set of facts, a laboratory technician performing the analysis reasonably could know that the results were intended for use in a criminal prosecution or that the primary purpose of the laboratory analysis was to establish or prove some fact in a criminal proceeding. A record that reflected such facts would be distinguishable from the record in this case and may produce a different outcome.

       The defendant specifically refers to T’s subsequent conduct of contacting the defendant for help after Uncle J.B. assaulted her. During trial, testimony was given that T did contact the defendant for help while she was residing in California without stating the reason T initiated the contact.

       Defense counsel argued to the court: “We don’t know the risks because there wasn’t [an] investigation. . . . [T]he state is asking you to infer [that T] must have told the truth . . . about what happened in California. And to further assume it is . . . the whole truth . . . even though California then didn’t investigate it further. ... I don’t know ... as to how many other nights he had access .... I don’t know how many opportunities he had during that time period [that T] was in California .... That’s why I would make inquiry . . . .”

       The defendant’s assertion that the evidence was admissible to prove third party culpability is similarly unpersuasive. “It is well established that a defendant has a right to introduce evidence that indicates that someone other than the defendant committed the crime with which the defendant has been charged. . . . The defendant must, however, present evidence that directly connects a third party to the crime. ... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . .
      “The admissibility of evidence of third party culpability is governed by the rules relating to relevancy.” (Citation omitted; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 514, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009). Although the parties concede that T was sexually assaulted by Uncle J.B. in California, we conclude that the defendant’s vague assertions are insufficient to directly connect Uncle J.B. to the conduct with which the defendant was charged. The collateral assault committed by Uncle J.B. differed substantially from the crimes with which the defendant was charged, as T alleged that she remained clothed during the incident with Uncle J.B. and there was neither vaginal nor anal penetration. Furthermore, the collateral assault occurred in the latter half of 2008 after T had demonstrated advanced sexual knowledge and after the defendant had assaulted her. In light of these considerations we conclude that the court did not abuse its discretion in precluding the proffered testimony.

       During oral argument, the defendant asserted that the state specifically declined to elicit testimony from T during its direct examination regarding whether she had sexual contact with any other individual and that the expert testimony indicated that T’s infection could have been contracted as recently as a few days before her tests or as long ago as prenatally. The defendant asserted that the inference that T contracted chlamydia from him is speculative and therefore must be stricken.

       Relying on out-of-state jurisprudence, the defendant invites us to expand upon the categories set forth in § 4-3 of our code of evidence, asserting that the admission of evidence encouraging the jury to find guilt on an improper basis also results in unfair prejudice. We decline to do so.