State v. DeJesus
Full Opinion (html_with_citations)
Opinion
This case involves two separate certified appeals. First, the state appeals from the judgment of the Appellate Court reversing the conviction of the defendant, Carlos DeJesus, for kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A),
We conclude that the state’s appeal is governed by the principles recently articulated in State v. Salamon, 287 Conn. 509, 542, 949 A.2d 1092 (2008), wherein we determined that the crime of kidnapping requires an intent “to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit [an underlying] crime.” Accordingly, the defendant is entitled to a new trial on the charge of kidnapping in the first degree wherein the jury properly is instructed on the element of intent. With respect to the defendant’s appeal, we conclude that, despite the adoption of the code by the judges of the Superior Court, the appellate courts of this state retain the authority to develop and change the rules of evidence through case-by-case common-law adjudication. In light of our recent clarification of the common scheme or plan exception in State v. Randolph, 284 Conn. 328, 933 A.2d 1158 (2007), we further conclude that evidence of uncharged misconduct admitted under
The jury reasonably could have found the following facts, as summarized by the Appellate Court. “At all pertinent times, the defendant was employed by a supermarket chain as a customer service manager. As part of his employment duties, the defendant was responsible for hiring individuals to work at the store. In August, 2000, he hired the nineteen year old victim,
“The defendant sexually assaulted the victim on two separate occasions in 2000. The first assault occurred when the defendant instructed the victim to go to the payroll room, which is located in the upper level of the store, to sit in a chair, to close her eyes and to open
“The second sexual assault committed by the defendant on the victim also occurred in the upper level of the store. After telling the victim to go to a room near his office, the defendant entered and proceeded to remove the victim’s pants and underwear and had her sit on a desk. The victim told the defendant that she did not want to do that, but he ignored her protests and remained silent. The defendant penetrated the victim’s vagina with his penis, causing her a great deal of discomfort. She was able to move away from him, replace her clothes and leave the room. The defendant did not say anything but looked angry as she left.
“The victim subsequently ended her employment at the supermarket but continued to shop at that particular location with her family. At some point in 2001, the defendant approached the victim and her father while they were shopping. In speaking with her father, the defendant indicated that the victim had been a ‘good worker’ and that he wanted her to resume her employment at the supermarket. The victim’s father, who at that time was unaware that the defendant had sexually abused his daughter, encouraged her to return to work. She agreed and was required to attend an orientation session prior to resuming her employment.
“Toward the end of June, 2001, the victim spoke with the defendant at the supermarket. He again instructed her to wait in an empty room located in the store’s upper level. The defendant entered the room and kissed
“The victim reported this incident to the police department, which commenced an investigation. The defendant, in an interview at the police station, initially denied having any sexual contact with the victim but then recanted and stated that any sexual activity between them was consensual.” State v. DeJesus, supra, 91 Conn. App. 50-52. Thereafter, the defendant was charged with two counts of sexual assault in the first degree in violation of § 53a-70 (a) (1), and two counts of kidnapping in the first degree in violation of § 53a-92 (a) (2) (A).
During the defendant’s jury trial, “[t]he state sought to introduce into evidence the testimony of N, a young woman who had worked at the same store as the victim and who alleged that she also had been sexually assaulted by the defendant. The state proffered N’s testimony on the issues of intent and a common scheme or plan. The defendant objected on the grounds that the testimony was not relevant and that its probative value did not outweigh its prejudicial impact.
“The court held a hearing outside of the presence of the jury during which N testified and was cross-examined by defense counsel. At the conclusion of her testimony and after listening to argument by counsel, the court ruled that it would permit N to testify before the jury. The court stated that it would give a limiting instruction at the conclusion of N’s testimony and during the charge to the jury.
“In April, 2000, the defendant was on the upper level of the store, and N asked him to get her a new name tag and shirt after her shift had concluded. The defendant signaled her to follow him into a dark room, and, after she arrived, he proceeded to kiss and to touch her. He then grabbed her by the arms, turned her around and pressed his penis into her. The defendant restrained N so that she could not move while he rubbed against her. At some point, the defendant stopped and N turned around. She observed the defendant masturbating and declined his invitation to touch his penis. She recalled that the entire episode, from the time she entered the dark room until the defendant left, took approximately ten minutes. Following N’s testimony, the court gave the jury a limiting instruction.” Id., 52-53.
The jury found the defendant guilty of all of the offenses with which he was charged, and the trial court rendered judgment in accordance with the jury’s verdict. The trial court subsequently sentenced the defendant to a total effective term of imprisonment of twenty years, execution suspended after sixteen years, and ten years of special probation. Id., 52.
The defendant appealed from the judgment of the trial court to the Appellate Court, claiming, inter alia, that: (1) § 53a-92 (a) (2) (A) is unconstitutionally vague as applied to the defendant’s conduct, which consisted of restraining the victim during the corarse of a sexual
With respect to the defendant’s second claim, the Appellate Court concluded that the trial court properly had admitted evidence of the defendant’s uncharged sexual misconduct with N under the intent and common scheme or plan exceptions to the prohibition on the admission of uncharged misconduct evidence because: (1) the charged crimes and uncharged misconduct had occurred within the same limited time period; id., 57, 60; (2) the charged crimes and uncharged misconduct had been perpetrated in a similar manner, in that the defendant had “used his supervisory authority to lure
I
We first address the state’s claim that a reasonable person would know that restraining a victim during the course of a sexual assault violates § 53a-92 (a) (2) (A) and, therefore, the Appellate Court improperly concluded that the kidnapping statute is unconstitutionally vague as applied to the second sexual assault in 2000. We conclude that the Appellate Court properly reversed the defendant’s conviction, but our reasoning differs from that of the Appellate Court. We conclude that the state’s appeal is governed by the statutory principles recently articulated by this court in State v. Salamon, supra, 287 Conn. 542, wherein we determined that the crime of kidnapping requires an intent “to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit [an underlying] crime.” Accordingly, we conclude that the defendant is entitled to a new trial on the charge of kidnapping in the first degree wherein the jury properly is instructed on the element of intent.
In Salamon, at the defendant’s request, we reexamined our long-standing interpretation of the kidnapping statutes to encompass even restraints that merely were incidental to the commission of another crime, such as assault or robbery. Id., 528-48. Although the state relied on the doctrines of stare decisis and legislative acquiescence in support of its contention that we should not revisit our prior holdings, we were persuaded, after careful consideration of both doctrines, “that [they were] not sufficiently weighty to bar reconsideration of our prior precedent interpreting the kidnapping statutes.” Id., 519. In our analysis, we recognized that “all of our prior cases [had] relied on a literal application
Our inquiry in Salamon revealed that since 1977, our case law consistently has concluded that the offense of kidnapping requires proof of the element of intent only, and “does not require proof that the victim was confined for any minimum period of time or moved any minimum distance.” Id., 532. Our holdings were premised on the literal application of the statutory definitions of the terms “ ‘restrain,’ ”
As we stated in Salamon, that “point” is particularly significant “in a case not involving the secreting of a victim in a place that he or she is unlikely to be found . . . .” Id. In such cases, “it is the intent element only that differentiates an abduction — the sine qua non of the crime of kidnapping — from a mere unlawful restraint, and the relatively minor penalties attendant to the latter offense.” Id.
To resolve the ambiguity created by § 53a-91, we turned to “the common law of kidnapping, the history and circumstances surrounding the promulgation of our current kidnapping statutes and the policy objectives animating those statutes, [and] we . . . conclude[d] the following: Our legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent a victim’s liberation, intended to exclude from the scope of the more serious crime of kidnapping and its accom
“Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury. For the purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim’s movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense; whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from
Applying this standard to the facts of Salamon, we concluded that “a juror reasonably could find that the defendant’s restraint of the victim was not merely incidental to his assault of the victim. The victim testified that the defendant, after accosting her, forcibly held her down for five minutes or more. Although the defendant punched the victim once and shoved his fingers into her mouth, that conduct was very brief by contrast to the extended duration of the defendant’s restraint of the victim. In light of the evidence, moreover, a juror reasonably could find that the defendant pulled the victim to the ground primarily for the purpose of restraining her, and that he struck her and put his fingers in her mouth in an effort to subdue her and to prevent her from screaming for help so that she could not escape. In such circumstances, we cannot say that the defendant’s restraint of the victim necessarily was incidental to his assault of the victim. Whether the defendant’s conduct constituted a kidnapping, therefore, is a factual question for determination by a properly instructed jury.” Id., 549-50. Accordingly, we reversed the defendant’s kidnapping conviction and remanded the case for a new trial wherein the jury properly is instructed on the element of intent. Id., 550.
Indeed, our research has revealed that the appropriate remedy for the instructional impropriety identified in Salamon is to reverse the defendant’s kidnapping conviction and to remand the case to the trial court for a new trial. It is well established that instructional impropriety constitutes “trial error” for which the appropriate remedy is a new trial, rather than a judgment of acquittal. As the United States Supreme Court
The decision of the United States Court of Appeals for the Fourth Circuit in United States v. Ellyson, 326 F.3d 522 (4th Cir. 2003), also is instructive on this point. In Ellyson, the defendant was tried and convicted of possessing child pornography in violation of 18 U.S.C. § 2252A (a) (5) (B) and (b) (2) (2002), which prohibited the possession of an image that “appears to be of a minor engaging in sexually explicit conduct . . . .”18 U.S.C. § 2256 (8) (B) (2000); United States v. Ellyson, supra, 525. Following the defendant’s conviction, the United States Supreme Court issued its decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002), wherein it determined that § 2256 (8) (B) “abridges the freedom to engage in a substantial amount of lawful speech” and, therefore, “is overbroad and unconstitutional.” Id., 256. In light of Free Speech Coalition, the Fourth Circuit Court of Appeals vacated the defendant’s conviction because the jury had been instructed improperly on the definition of child pornography. United States v. Ellyson, supra, 530 (“Of course, the district court did not have the benefit of Free Speech Coalition at the time it issued
We next address the appropriate remedy. The defendant does not challenge the sufficiency of the evidence to support his kidnapping conviction under the law as it existed prior to Salamon. Indeed, such a claim would fail because, under State v. Luurtsema, supra, 262 Conn. 201-203, the defendant’s restraint of the victim is sufficient to support a kidnapping conviction as long as it is accompanied by the requisite intent, even if such restraint is “integral or incidental to the crime of sexual assault . . . .” (Internal quotation marks omitted.) Id.,
n
We next address the defendant’s claim that this corut has the authority to reconsider the liberal standard for the admission of uncharged sexual misconduct evidence in sexual assault cases despite the adoption of the code by the judges of the Superior Court codifying the common-law rules of evidence. The defendant claims that the liberal standard of admission should be overruled because it is inadequate to demonstrate the existence of a genuine plan in the defendant’s mind, and crimes of a sexual nature are neither more secretive, aberrant nor pathological than crimes of a nonsexual nature. We agree with the defendant that the adoption of the code did not divest this court of its inherent common-law adjudicative authority to develop and change the rules of evidence on a case-by-case basis. We further agree with the defendant that, in light of our recent clarification of the nature and scope of the
Before addressing the merits of the defendant’s claim, we review our jurisprudence regarding the admissibility of evidence of uncharged misconduct. “As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, is admissible. The rules of policy have no application whatever to evidence of any crime which directly tends to prove that the accused is guilty of the specific offense for which he is on trial. . . . We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect. . . . Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only whe[n] abuse of
“The standard by which the admissibility of evidence of uncharged misconduct is measured generally will depend on two factors: the purpose for which the evidence is offered, and the type of crime with which the defendant has been charged. For example, when a defendant is charged with a sex crime and evidence of uncharged sexual misconduct is offered to establish that the defendant had a common scheme or plan to engage in sex crimes, the admissibility of the proffered evidence is evaluated pursuant to a liberal standard.” (Citations omitted; internal quotation marks omitted.) State v. Randolph, supra, 284 Conn. 340-41. Thus, in sexual assault cases “[e]vidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan [when] the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness.” (Internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 631, 930 A.2d 628 (2007).
“In cases that do not involve sex crimes . . . however, we apply a more stringent standard to determine whether evidence of uncharged misconduct is admissible to establish a common scheme or plan.” State v. Randolph, supra, 284 Conn. 341. Uncharged misconduct evidence is admissible in nonsex crime cases “only if it supports a permissive inference that both crimes were related to an overall goal in the defendant’s mind.” (Emphasis added; internal quotation marks omitted.) Id., 356.
With this background in mind, we turn first to the predicate question of whether the code codified the
Subsection (a) of § 4-5 of the code provides that “[e]vidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person.” Subsection (b) of § 4-5 of the code provides, however, that “[e]vidence of other crimes, -wrongs or acts of a person is admissible for purposes other than those specified in subsection (a),
Having concluded that the liberal standard for the admission of uncharged sexual misconduct evidence in sex crime cases has been codified in the code, we next address whether we have the authority to reconsider this standard. As previously explained, one purpose of the code, as stated in the commentary to § 1-2 (a), is to codify the common law and certain identified statutory rules of evidence as rules of court and to place them “into a readily accessible body of rules to which the legal profession conveniently may refer.” Section 1-2 (a) of the code provides that a second stated purpose is “to promote the growth and development of the law of evidence through interpretation of the [c]ode and through judicial rule making to the end that the truth may be ascertained and proceedings justly determined.” (Emphasis added.) Although it is clear that the judges of the Superior Court intended the law of evidence to grow and develop in the future through “interpretation of the [c]ode” and through “judicial rule making,” the meaning of these two terms in § 1-2 (a) is unclear.
We begin our analysis with the term interpretation. On the one hand, because the process of interpretation commonly is understood to mean to explain or to construe; American Heritage Dictionary of the English Language (3d Ed. 1992); it could be argued that this term was intended to limit the common-law authority of the
Likewise, the meaning of the term “judicial rule making” in § 1-2 (a) is equally unclear. Although the term reasonably may be construed to refer to codified rules of court adopted by vote of the judges of the Superior Court, the commentary to § 1-2 (a) indicates that the term should be construed broadly to include all evidentiary law developed by the judicial branch, regardless of whether it derives from an administrative or an adjudicative source. For example, the commentary to § 1-2 provides that “[b]ecause the [c]ode was intended to
“By letter dated October 24, 1991, the co-chairmen of the Judiciary Committee of the General Assembly requested that the Connecticut Law Revision Commission (commission), study ‘the feasibility of the legislative enactment of an evidence code’ and that the study ‘include a draft bill for an evidence code.’ ”
“The drafting committee completed its work in September, 1997. After receiving public comment, the drafting committee submitted its work product to the . . . [commission, which voted to adopt the proposed code and commentary in December, 1997. Thereafter, the proposed code and commentary were submitted to the Judiciary Committee of the General Assembly for consideration during the 1998 legislative session. Before commencement of the session, however, certain members of the General Assembly had suggested that, for various reasons, a code of evidence should be adopted, if at all, by the judges of the Superior Court pursuant to their rule-making authority rather than by legislation. Thus, the Judiciary Committee urged then Supreme Court Chief Justice Robert J. Callahan to have the
As the foreword to the code explains, “[i]n response, Chief Justice Callahan appointed a committee to con
“An oversight committee was created by the judges of the Superior Court when they adopted the [c]ode, for the purpose of monitoring the development of the [c]ode and making recommendations for future revision and clarification. The current membership of the committee includes: Justice Katz (chair), Superior Court Judges Bishop, Corradino, Beverly J. Hodgson, Kavanewsky, Koletsky, and Michael R. Sheldon, attorneys Adelman, Bruckmann, Gill, Jack G. Steigelfest, Wiechmann, and Levine . . . and Professor Tait. The oversight committee convened in October, 1999, and recommended minor changes to the [c]ode and commentary based primarily on recent developments in the law. Those recommended changes were approved by the Rules Committee in October, 1999, then by the judges of the Superior Court in November, 1999, and ultimately were incorporated into the final version of the [c]ode,” which became effective on January 1, 2000.
The foregoing history reflects that the code was intended to provide the bench and the bar with a concise and authoritative restatement of the state’s common
The foregoing history does not support the conclusion, however, that the code was intended to divest this court of its inherent authority to change and develop the law of evidence through case-by-case common-law adjudication. The transcript of the June 28,1999 annual meeting of the judges of the Superior Court, at which the code was adopted, indicates that Justice Borden explained the purpose of the code as follows: “the rationale behind the [c]ode is, that it will be more efficient for all in the litigation process to have a [c]ode stated in a concise and familiar form to which to refer.” There was no discussion of the effect, if any, that adoption of the code would have upon this court’s common-law adjudicative authority to change and develop evidentiary law on a case-by-case basis, an inherent authority that it has enjoyed since the seventeenth century.
In the absence of any discussion at the meeting of the judges of the Superior Court concerning the impact that adoption of the code would have on the future development of evidentiary law, it is illogical to conclude that, by adopting the code for the purposes of ease and convenience, the judges intended to divest this court of its long-standing inherent common-law adjudicative authority over evidentiary law. Cf. State v. Skakel, 276 Conn. 633, 779, 888 A.2d 985 (2006) (Katz, J., concurring) (“[i]t simply runs counter to reason to conclude that the legislature intended to impose, for the first time in the state’s history, a statute of limitations on all murders except those committed under the five limited circumstances constituting capital felonies—
In light of the ambiguous language of the code, the dearth of extratextual evidence indicating the intent of the judges of the Superior Court,
Moreover, our construction of the code is consistent with our duty to interpret statutes in a manner that avoids placing them in constitutional jeopardy; see, e.g., State v. Metz, 230 Conn. 400, 422-23, 645 A.2d 965
Article fifth, § 1, of the constitution of Connecticut, as amended by article twenty, § 1, of the amendments provides: “The judicial power of the state shall be vested in a supreme court, an appellate court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.” “It is especially significant that unlike the judicial articles of most state constitutions and that of the United States constitution (article III), the powers and jurisdiction of the two courts [originally] specifically named in the Connecticut constitution (the Supreme and Superior Courts) are not specified. The reason is
Accordingly, under article fifth, § 1, the Superior Court is a court of general jurisdiction with ultimate authority over the trial of causes, whereas the Supreme Court is a court of limited appellate jurisdiction with ultimate authority over the correction of errors of law. See, e.g., State v. Nardini, 187 Conn. 109, 126, 445 A.2d
Under the common law of this state prior to 1818, as under the common law of England, the ultimate authority over the rules and standards governing the admissibility of evidence rested with the highest court of the state. See, e.g., Chapman v. Chapman, 2 Conn. 347-50, 349 (1817) (trial court improperly admitted hearsay evidence); Townsend v. Bush, 1 Conn. 260 (1814) (trial court improperly excluded testimony of competent witness); Phelps v. Yeomans, 2 Day (Conn.) 227 (1806) (trial court properly excluded evidence in action for ejectment); see also Z. Swift, A Digest of the Law of Evidence in Civil and Criminal Cases and a Treatise on Bills of Exchange, and Promissory Notes (1810), p. viii. (“decisions of [c]ourts of dernier resort in this [s]tate” are “binding authority”). Although the Superior Court possessed broad discretion in determining the admissibility of evidence under the facts and circumstances of each individual case, this discretion necessarily was constrained by the law of evidence
Because this court had final and binding authority over the law of evidence prior to 1818, and because the common-law authority of the Supreme Court and the Superior Court was codified in article fifth, § 1, of the constitution of 1818, we question whether the judges of the Superior Court have the constitutional authority
Having concluded that we have the authority to modify the common-law rules of evidence codified in the code, we next address whether we should exercise our authority under the circumstances of the present case. The defendant claims that the liberal standard by which evidence of uncharged misconduct is admitted in sexual assault cases under the common scheme or plan exception should be reconsidered and rejected because it fails to establish the existence of a genuine plan in the defendant’s mind. Additionally, the defendant claims that evidence of uncharged misconduct should not be admitted more liberally in sex crime cases than in non-sex crime cases because crimes of a sexual nature are neither more secretive, aberrant nor compulsive than crimes of a nonsexual nature. In light of this court’s recent clarification of the nature and scope of the common scheme or plan exception in State v. Randolph, supra, 284 Conn. 328, we conclude that evidence of uncharged misconduct admitted under the liberal standard ordinarily does not reflect the existence of a genuine common scheme or plan in the defendant’s mind.
We begin our analysis with the general purpose and scope of the common scheme or plan exception, as recently clarified in State v. Randolph, supra, 284 Conn. 342. “Evidence of uncharged misconduct, although inadmissible to prove a defendant’s bad character or propensity to engage in criminal behavior, is admissible [t]o prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part. . . . To prove the existence of a common scheme or plan, each crime must be an integral part of an overarching plan explicitly conceived and executed by the defendant or his confederates. . . . Evidence of such a plan is relevant to the charged crime because it bears on the defendant’s motive, and hence the doing of the criminal act, the identity of the actor, and his intention, where any of these is in dispute.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id.
In Randolph, we identified two categories of cases in which evidence of uncharged misconduct properly
“In the second category, which consists of signature cases, this court concluded that evidence of uncharged misconduct was admissible to establish the existence of a common scheme or plan because the factual characteristics shared by the charged and uncharged crimes were sufficiently distinctive and unique as to be like a signature and, therefore, it logically could be inferred that if the defendant is guilty of one [crime] he must be guilty of the other.” (Internal quotation marks omitted.) State v. Randolph, supra, 284 Conn. 347. In Randolph, we took the opportunity to explain “why we employ
We cautioned, however, that “[although this permissive inference may arise in some, if not many [signature] cases ... it will not arise in all cases. As the Washington Court of Appeals aptly observed, [something more than the doing of similar acts is required in evidencing design, as the object is not merely to negative an innocent intent, but to prove the existence of a definite project, directed toward the completion of the crime in question. . . . Thus, when seeking to admit evidence pursuant to the common scheme or plan exception, it is not enough to show mere similarity between the [charged and uncharged] crimes . . . because [s]tand
It is clear that, pursuant to Randolph, the touchstone of the common scheme or plan exception is the existence of an overall scheme or plan in the defendant’s mind that encompasses the commission of both the charged and uncharged crimes. Thus, “it is not enough to show mere similarity between the [charged and uncharged] crimes . . . because [standing alone, a series of similar acts does not establish the existence of a true plan.” (Citation omitted; internal quotation marks omitted.) Id., 355.
With these principles in mind, we turn to the liberal standard by which evidence of uncharged misconduct is admitted to establish the existence of a common scheme or plan in sex crime cases. It is well established that, in such cases, “[t]here is a greater liberality . . . in admitting evidence of other criminal acts to show a common scheme, pattern or design . . . .” (Internal quotation marks omitted.) State v. Sawyer, supra, 279 Conn. 349. Evidence of uncharged misconduct is admissible “if the offense is proximate in time, similar to the offense charged, and committed with persons similar to the prosecuting witness.” (Emphasis added; internal quotation marks omitted.) Id.; see, e.g., State v. Jacobson, supra, 283 Conn. 633 (trial court properly admitted uncharged misconduct evidence to prove
Nonetheless, we recognize that strong public policy reasons continue to exist to admit evidence of uncharged misconduct more liberally in sexual assault cases than in other criminal cases. As we observed in State v. Merriam, supra, 264 Conn. 669-71, “[f]irst, in sex crime cases generally, and in child molestation cases in particular, the offense often is committed surreptitiously, in the absence of any neutral witnesses.
We conclude that these public policy considerations militate in favor of recognizing 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.
We caution, however, that “our approach does not vest trial courts with carte blanche to allow the state to introduce any prior sexual misconduct evidence against an accused in sex crime cases.” State v. Mer
Second, evidence of uncharged misconduct is admissible only if its probative value outweighs “the prejudicial effect that invariably flows from its admission.” State v. Merriam, supra, 264 Conn. 671; cf. United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001) (evidence of uncharged misconduct admitted under rule 414 of Federal Rules of Evidence subject to probative versus prejudicial balancing under rule 403 of Federal Rules of Evidence), cert. denied, 534 U.S. 1166, 122 S. Ct. 1181, 152 L. Ed. 2d 124 (2002). In balancing the
Lastly, to minimize the risk of undue prejudice to the defendant, the admission of evidence of uncharged sexual misconduct under the limited propensity exception adopted herein must be accompanied by an appropriate cautionary instruction to the jury.
Turning to the facts of the present case, we conclude that, although evidence of the defendant’s uncharged misconduct with N was inadmissible to prove the existence of a “true” common scheme or plan in the defendant’s mind, it was admissible to prove that the defendant had a propensity or a tendency to sexually assault young women of limited mental ability with whom he worked and over whom he had supervisory
Because the uncharged misconduct evidence was admitted pursuant to the common scheme or plan
In sum, evidence of uncharged sexual misconduct properly may be admitted in sex crime cases to establish that the defendant had a tendency or a propensity to engage in aberrant and compulsive criminal sexual behavior if: (1) the trial court finds that such evidence is relevant to the charged crime in that it is not too remote in time, is similar to the offense charged and is committed upon persons similar to the prosecuting witness; and (2) the trial court concludes that the probative value of such evidence outweighs its prejudicial effect. In assessing the relevancy of such evidence, and in balancing its probative value against its prejudicial
The judgment of the Appellate Court is reversed with respect to the direction to render judgment of not guilty of kidnapping in the first degree under count four of the information and the case is remanded to that court with direction to remand the case to the trial court for a new trial on that count; the judgment is affirmed in all other respects.
General Statutes § 53a-92 provides in relevant part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually
We granted the state’s petition for certification to appeal from the judgment of the Appellate Court limited to the following issue: “Did the Appellate Court properly conclude that no reasonable person could have known that the defendant’s conduct would violate the statute defining kidnapping in the first degree?” State v. DeJesus, 279 Conn. 912, 912-13, 903 A.2d 658 (2006).
General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .
We granted the defendant’s petition for certification to appeal from the judgment of the Appellate Court limited to the following issue: “Does this court, or any court, have the authority in light of the Connecticut Code of Evidence, to reconsider the rule that the introductions of prior sexual misconduct of the defendant in sexual assault cases, is viewed under a relaxed standard?” State v. DeJesus, 279 Conn. 912, 903 A.2d 658 (2006).
In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
“Counts three and four of the information charged the defendant with sexual assault and kidnapping stemming from his conduct that occurred in 2000. The court instructed the jury that it could convict the defendant on the basis of either incident but that it was required to agree unanimously on the same incident.” State v. DeJesus, supra, 91 Conn. App. 51 n.2.
The defendant also claimed that the trial court improperly had: (1) denied him due process of law by providing “the jury with an incorrect statement of the common scheme or plan exception during its charge and improperly [allowing] the state to refer to N and the victim as ‘borderline retarded’ and ‘intellectually limited’ State v. DeJesus, supra, 91 Conn. App. 66-66; (2) “refused to conduct an in camera review of the victim’s confidential records from a rape crisis center to determine if they contained any evidence concerning her testimonial capacity and ability to perceive, to recall and to relate the events at issue”; id., 70; and (3) denied the defendant’s motion to suppress certain statements made to the police because these statements had been made during the course of a custodial interrogation and the defendant had not been informed of his Miranda rights. Id., 77-83; see Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Appellate Court rejected each of these claims, concluding that: (1) the defendant’s unpreserved instructional claim was not of constitutional magnitude and, therefore, the defendant could not prevail under the second prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. DeJesus, supra, 65-70; (2) the trial court had not abused its discretion by denying the defendant’s request for an in camera review of the victim’s confidential records because the defendant failed to establish “through the testimony of those persons with knowledge of the records, a factual basis from which the court could conclude that the records would reveal that, at the relevant time, the victim’s testimonial capacity was affected so as to warrant further inquiry”; id., 75; and (3) the trial court properly denied the defendant’s suppression motion because “as a matter of law . . . the defendant’s interview ... at the police station cannot be construed as having been custodial at any point.” Id., 81. The Appellate Court’s resolution of these claims is not at issue in the present appeal.
The Appellate Court noted that, “[c]ount four of the information charged the defendant with kidnapping in the first degree stemming from events that occurred in 2000. There was evidence adduced at trial concerning two sexual assaults and two kidnappings that occurred during this time period. . . . [T]he [trial] corut instructed the jury that it could convict on count four as long as it agreed on the same kidnapping. Of course, the defendant is unable to clarify a general verdict, and, therefore, it is unknown specifically which 2000 events formed the basis of the conviction with respect to count four. . . . Accordingly, the defendant would be wrongly convicted if he was convicted under an alternative basis for which there was no evidence, and a conviction cannot stand unless both of the alternate bases for the conviction are constitutional. ... A conviction must be set aside if one of the alternate grounds supporting the verdict is unconstitutional or if one is not sufficiently supported by the evidence.” (Citations omitted; internal quotation marks omitted.) State v. DeJesus, supra, 91 Conn. App. 95 n.18. In light of the Appellate Court’s conclusion that § 53a-92 (a) (2) (A) is unconstitutionally vague as applied to the defendant’s conduct during the second sexual assault in 2000, it did not determine “whether the facts concerning the first assault in 2000 could also support a kidnapping conviction.” Id., 98.
The rule announced in Salamon applies here because the present case was pending when this court articulated a new construction of the kidnapping statutes in Salamon. Marone v. Waterbury, 244 Conn. 1, 10-11, 11 n.10, 707 A.2d 725 (1998) (citing cases recognizing long-standing presumption that rule enunciated in case applies retroactively to pending cases).
General Statutes § 53a-91 (1) defines the term “ ‘[Restrain’ ” as “to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but is not limited to, (A) deception and (B) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.”
General Statutes § 53a-91 (2) defines the term" ‘[a]bductf ” as “to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.”
In State v. Salamon, supra, 287 Conn. 532 n.21, we also noted that “[a] challenge to a kidnapping conviction predicated on such miniscule movement or duration of confinement remains viable on constitutional grounds under the [void for] vagueness doctrine.”
We note, as of the date of the release of this decision, a motion for reconsideration of our decision in Sanseverino was pending before this court. We will consider the merits of that motion in due course.
The dissent contends that, by overruling our determination in Sanseverino that the appropriate remedy was a judgment of acquittal, rather than a new trial, we violate the doctrine of stare decisis. We disagree. Stare decisis “is not an end in itself. . . . Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better. . . . The flexibility and capacity of the common law is its genius for growth and adaptation. . . . Indeed, [i]f law is to have current relevance, courts must have and exert the capacity to change a rule of law when reason so requires. . . . [Thus] [t]his court . . . has recognized many times that there are exceptions to the rule of stare decisis.” (Citations omitted; internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 691, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). In light of the inescapable logic and persuasive reasoning of Burks v. United States, supra, 437 U.S. 15, United States v. Ellyson, supra, 326 F.3d 532-33, and United States v. Pearl, supra, 324 F.3d 1214, we are compelled to conclude that Sanseverino was wrongly decided.
Indeed, the dissent appears to concede that the nature of the defendant’s claim in Sanseverino was not truly one of insufficiency of the evidence
In light of the statutory principles recently articulated by this court in Salamon, we need not address the state’s claim that the Appellate Court improperly concluded that the kidnapping statute is void for vagueness as applied to restraints that are necessary for or incidental to the commission of a separate underlying crime. See State v. DeJesus, supra, 91 Conn. App. 97.
As we previously have observed, the code “cannot be properly understood without reference to the accompanying [cjommentary. The [cjommentary provides the necessary context for the text of the [cjode, and the text of the [cjode expresses in general terms the rules of evidence that the cases cited in the [cjommentary have established. . . . Additionally, the [¡Judges took an unusual step when they formally adopted the [cjode. Unlike other situations, in which the [jjudges, when voting on rules, are guided by but do not formally adopt the commentary submitted by the [rjules [cjommittee that normally accompanies proposed rule changes, in adopting the [cjode the [jjudges formally adopted the [cjommentary as well. This is the first time that the [jjudges have done so. Thus, the [cjode must be read together with its [cjommentary in order for it to be fully and properly understood.” (Citation omitted; internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 60, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006); see also Daley v. McClintock, 267 Conn. 399, 408, 838 A.2d 972 (2004); D. Borden, “The New Code of Evidence: A (Very) Brief Introduction and Overview,” 73 Conn. B.J. 210, 212 (1999).
Subsection (b) of § 1-2 of the code, entitled “[slaving clause,” also supports a broad construction of subsection (a). Subsection (b) of § 1-2 of the code provides: “Where the [e]ode does not prescribe a rule governing the admissibility of evidence, the court shall be governed by the principles of the common law as they may be interpreted in the light of reason and experience, except as otherwise required by the constitution of the United States, the constitution of this state, the General Statutes or the Practice Book. The provisions of the [c]ode shall not be construed as precluding any court from recognizing other evidentiary rules not inconsistent with such provisions.” The commentary to § 1-2 (b) of the code explains that “[sjubsection (b) addresses the situation in which courts are faced with evidentiary issues not expressly covered by the [c]ode. Although the [c]ode will address most evidentiary matters, it cannot possibly address every evidentiary issue that might arise during trial. Subsection (b) sets forth the standard by which courts are to be guided in such instances.
“Precisely because it cannot address every evidentiary issue, the [c]ode is not intended to be the exclusive set of rules governing the admissibility of evidence. Thus, subsection (b) makes clear that a court is not precluded from recognizing other evidentiary rules not inconsistent with the [c]ode’s provisions.” (Emphasis added.)
First, subsection (b) of § 1-2 governs “evidentiary issue[s] that might arise during trial" and, therefore, is applicable exclusively to the Superior Courts, rather than to the Appellate Court or to this court. (Emphasis added.) Conn. Code Evid. § 1-2 (b), commentary. As § 1-1 (b) of the code specifies, “[t]he [c]ode applies to all proceedings in the superior court in which facts in dispute are found, except as otherwise provided by the [c]ode, the General Statutes or the Practice Book.” Second, subsection (b) of § 1-2 clarifies that,
The commission is a part of the legislative branch and is composed of representatives from the General Assembly, the judiciary, members of the bar and the faculty of accredited law schools within the state. See General Statutes §§ 2-85 and 2-86. The duties of the commission include, but are not
“By letter dated March 3, 1998, the then co-chairs of the Judiciary Committee wrote to Chief Justice . . . Callahan, as follows:
“Dear Justice Callahan,
“As I am sure you are aware, since 1993 a drafting committee of the . . . [cjommission has been preparing a code of evidence to codify existing Connecticut case law. The drafting committee was chaired by Associate Justice . . . Borden and included a highly distinguished panel of Connecticut legal scholars and practitioners, including Justice . . . Katz, Judges . . . Aurigemma . . . Freed, and . . . Koletsky, and Professor . . . Tait, co-author of Handbook of Connecticut Evidence. The drafting committee completed its work in December 1997 and the proposed code has now been approved for promulgation by the . . . [commission.
“As [c]ochairmen of the [j]udiciary [cjommittee, we believe that the proposed code accurately encompasses Connecticut’s rules of evidence in a form that will be most useful to litigating attorneys and presiding judges. We also believe that the code would more appropriately be promulgated as rules of court rather than as legislation of the Connecticut General Assembly. The code reflects existing court-made law and must, in the future, remain responsive to judicial concerns. We are, therefore, submitting the proposed code for consideration and possible adoption of the Judicial Department.
“Because adoption of an appropriate code, whether by rule of court or by legislation, is of vital importance, we have a continuing interest in any action that is taken with respect to this proposal. Would you, therefore, kindly advise us prior to the 1999 legislative session of any action that the Judicial Department may be taking or intending to take with respect to the code at that time? We are, of course, available to discuss this matter further. . . .
“Sincerely,
“Senator Donald E. Williams, Jr.
“Representative Michael P. Lawlor
“Cochairmen, Connecticut Judiciary Committee . . . .” C. Tait & E. Prescott, supra, § 1.1.3, pp. 8-9.
The dissent states that “it is well-known that, as chair of both the evidence code drafting committee and the Practice Book rules committee, Justice Borden spent many hours at judges’ association meetings explaining the code prior to his official presentation. Thus, his statements at the official meeting reasonably should be viewed as a summation, not a comprehensive discussion of all of the ramifications of adoption of the code.” First, such information hardly can be characterized as “well-known,” given that there is no public record of Justice Borden’s appearance at any judges’ association meetings. Second, divesting this court of its inherent common-law and constitutional ac[judicative authority over evidentiary law, an authority which this court has epjoyed since its inception, is not a minor or picayune detail. One would assume that, at a minimum, such a sweeping consequence would merit a brief mention in Justice Borden’s summation concerning the purpose and impact of the code.
Anecdotal extratextual evidence reflects that the judges of the Superior Court, all of whom voted to adopt the code, may have had conflicting understandings of the impact that adoption of the code would have on the future development of evidentiary law. Shortly after the code became effective, several attorneys expressed concern that the code will “[freeze] the common law” and “slow the growth of evidentiary law . . . .” J. Turner, supra, 26 Conn. L. Trib. 10. Although “both attorneys and judges” expressed their views at that time that “judges no longer will be free to develop the law on a case-by-case basis using the common law,” then Supreme Court Justice Borden opined that “the benefits [of the code] outweigh the costs.”
“[W]hen a statute is in derogation of common law ... it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction. ... In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. . . . Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed. . . . The rule that statutes in derogation of the common law are strictly construed can be seen to serve the same policy of continuity and stability in the legal system as the doctrine of stare decisis in relation to case law.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 426-27, 927 A.2d 843 (2007).
We recognize that, in State v. Sawyer, supra, 279 Conn. 331-32 n.1, we stated in dicta and without analysis that, “since 2000, the year in which the [code] was adopted, the authority to change the rules of evidence lies with the judges of the Superior Court in the discharge of their rule-making function. Of course, prior to that date, changes to substantive evidentiary rules were accomplished by our courts in the exercise of their common-law authority. To the extent that our evidentiary rules may be deemed to implicate substantive rights, we believe that it is unclear whether those rules properly are the subject of judicial rule making rather than the subject of common-law adjudication. Because that question raises an issue on which we did not request briefing by the parties, however, we leave it for another day. ” Because our statement in Sawyer was dicta, it is not binding precedent and, therefore, does not dictate the outcome of the present appeal. See, e.g., Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 810, 855 A.2d 174 (2004). To the extent that we indicated in Sawyer, however, that “the authority to change the rules of evidence lies
Because the code merely restated the prevailing common-law evidentiary rules, which the judges of the Superior Court already were bound to apply, and was intended to expedite and streamline judicial proceedings by serving as a shorthand reference to those rules, the code clearly was intended to be binding authority in the Superior Court. Section 1-1 (b) of the code specifically states that “[t]he [c]ode applies to all proceedings in the superior court in which facts in dispute are found, except as otherwise provided by the [c]ode, the General Statutes or the Practice Book.” The code therefore differs fundamentally from a treatise or handbook, which has persuasive value only. The question presented in this appeal, however, is not whether the code is binding authority in the Superior Court, but, rather, whether it is binding authority in this court such that we are precluded from reconsidering our own prior precedent codified in the code. For the reasons explained in the body of this opinion, we conclude that the judges of the Superior Court did not intend their adoption of the code to divest this court of its inherent authority to change and develop the law of evidence via case-by-case common-law adjudication.
The dissent repeatedly analogizes the evidentiary rales codified in the code to statutes promulgated by the legislature and maintains that this court’s authority to modify or overrule the code necessarily is commensurate with its authority to modify or overrule a statute. The dissent’s analogy is inapt, however. First, this court’s authority to modify or overrule a statute is limited by the separation of powers provisions of the state and federal constitutions. See, e.g., State v. Courchesne, 262 Conn. 537, 580, 816 A.2d 562 (2003) (under separation of powers provisions of state and federal constitutions “the task of the legislative branch is to draft and enact statutes, and the task of the judicial branch is to inteipret and apply them in the context of specific cases”). Because the present case involves the allocation of authority within a single branch of government, rather than the division of authority between two or more branches of government, however, the limitations imposed by those provisions are inapplicable. Second, in claiming that the code is inviolate simply because it is a code, the dissent engages in a tautological exercise that presupposes the answer to the question with which we are presented, namely, in enacting the code, did the judges of the Superior Court intend to divest this court of its inherent authority to change and develop the law of evidence through case-by-case common-law adjudication? Because we answer this predicate question in the negative, our analysis necessarily ends where the dissent’s analysis begins.
Article fifth, § 1, as codified in the state constitution of 1818 provided that: “The judicial power of the state shall be vested in a supreme court of errors, a superior court, and such inferior courts as the general assembly shall, from time to time, ordain and establish: the powers and jurisdiction of which courts shall be defined by law.” “The 1965 constitution changed this provision by deleting the words ‘of errors’ in the title of the Supreme Court, by changing the word ‘inferior’ to ‘lower’ in defining what courts could be established by the General Assembly, and by replacing the colon after ‘establish’ with a period and the word ‘which’ by the word ‘these.’ ” Szarwak v. Warden, 167 Conn. 10, 29, 355 A.2d 49 (1974). These changes were technical in nature and were not intended to alter, or in any way materially change, the jurisdiction or composition of the “constitutional courts,” the Supreme Court and the Superior Court. Id., 34-36; see also Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968). In 1982, article fifth, § 1, was amended by article twenty, § 1, of the amendments, which created a third constitutional court, the Appellate Court.
Nothing in this opinion should be construed to restrict the trial court’s broad discretion to admit or exclude evidence “if premised on a correct view of the law . . . .” State v. Saucier, supra, 283 Conn. 218. We conclude only that, under article fifth, § 1, of the state constitution, it is the province of this court, rather than the Superior Court, ultimately to determine what the correct view of the law is.
Likewise, we question whether the judges of the Superior Court have the constitutional authority to adopt a code of evidence that is inconsistent with the legal principles promulgated by the Appellate Court, to the extent that such principles are consistent with the decisions of this court, or to divest the Appellate Court of its power to develop and change the law of evidence via case-by-case abdication. Accordingly, we conclude that the evidentiary rules delineated in the code are subject to change, modification, alteration or amendment by the Appellate Court in the exercise of its constitutional and common-law adjudicative authority, to the extent that such a change, modification, alteration or amendment is not inconsistent with the prior decisions of this court. See Hopkins v. Commissioner of Correction, 95 Conn. App. 670, 672, 899 A.2d 632 (“[a]s an intermediate appellate court,” the Appellate Court is “bound by Supreme Court precedent and [is] unable to modify it”), cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006).
The dissent speculates that “the result in this case may motivate the legislature to follow through on previously contemplated action to bring the rules of evidence under the supervision of that body, which the majority
See 3 Day (Conn.) 28-29 (1808) (adopting rules pertaining to jury instructions, bills of exceptions and motions for new trial); 4 Day (Conn.) 119 (1809) (adopting rules pertaining to attorneys seeking admission to practice law and specifying that motion for new trial must state facts on which motion is grounded); 5 Day (Conn.) 180 (1811) (ordering certain limitations to rule established in June, 1809, regarding admission of attorneys to practice of law).
We recognize, however, that “the rules of evidence . . . have never in this state been regarded as exclusively within the judicial domain. Over a period of many years, the legislature has enacted various statutes modifying the rules of evidence prevailing at common law .... These changes have been accepted by our courts and have never been challenged as violating the principle of separation of powers.” State v. James, 211 Conn. 555, 560, 560 A.2d 426 (1989); see also State v. Kulmac, supra, 230 Conn. 52 (“[t]he rules pertaining to the admissibility of evidence in Connecticut are subject to the exercise of both judicial and legislative authority”).
Rule 413 (a) of the Federal Rules of Evidence provides: “In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.”
Rule 414 (a) of the Federal Rules of Evidence provides: “In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.”
The defendant claims, however, that “many heinous crimes take place out of sight” and that “the use of special rules of evidence for sexual assault victims is a form of paternalism that only serves to perpetuate sexist stereotypes that a woman’s testimony alone is an insufficient basis for a sexual assault conviction.” The defendant fails to cite any authority or to provide any analysis in support of this claim and, therefore, we decline to review it. See State v. T.R.D., 286 Conn. 191, 213-14 n.18, 942 A.2d 1000 (2008) (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” [Internal quotation marks omitted.]).
The defendant further claims that evidence of uncharged misconduct should not be admitted more liberally in sex crime cases because “mass
We clarify that the exception we adopt today, like the liberal standard pursuant to which uncharged misconduct evidence formerly was admitted under the common scheme or plan exception, applies to all sexual misconduct, regardless of the age of the victim.
The scope and contours of the propensity exception to the rule prohibiting the admission of uncharged misconduct that we adopt in this opinion therefore are rooted in this state’s unique jurisprudence concerning the admission of uncharged misconduct evidence in sex crime cases, and must be construed accordingly. Consequently, we do not anticipate that our decision today will open the floodgates to the admission of uncharged misconduct evidence that previously was inadmissible under the common scheme or plan exception.
The precise content of such an instruction is beyond the scope of the present appeal. We note, however, that the following instruction regarding the admission of evidence of uncharged misconduct under rule 413 of the Federal Rules of Evidence; see footnote 32 of this opinion; has been approved by the Tenth Circuit Court of Appeals: “In a criminal case in which the defendant is [charged with a crime exhibiting aberrant and compulsive criminal sexual behavior], evidence of the defendant’s commission of another offense or offenses ... is admissible and may be considered for its bearing on any matter to which it is relevant. However, evidence of a prior offense on its own is not sufficient to prove the defendant guilty of the crimes charged in the [information]. Bear in mind as you consider this evidence [that] at all times, the government has the burden of proving that the defendant committed each of the elements of the offense charged in the [information], I remind you that the defendant is not on trial for any act, conduct, or offense not charged in the [information].” (Internal quotation marks omitted.) United, States v. McHorse, 179 F.3d 889, 903 (10th Cir.), cert. denied, 528 U.S. 944, 120 S. Ct. 358, 145 L. Ed. 2d 280 (1999); see also 1 L. Sand, J. Siffert & W. Loughlin et al., Modem Federal Jury Instructions-Criminal (Matthew Bender 2007) § 5-27.
The trial court minimized the risk of undue prejudice to the defendant by issuing the following cautionary instruction to the jury: “Remember, I told you that certain evidence might be admitted for one purpose but not another. This evidence has been admitted; first, to demonstrate or show a characteristic method or pattern in the commission of criminal acts; and second, on the issue of the defendant’s intent. The evidence of alleged prior misconduct by the defendant toward [N] is not part of the offense charged in this case. It is for you and you alone, ladies and gentlemen, to evaluate the testimony in this case, all of the testimony, including this testimony and to determine whether you credit it in whole, in part, or not at all. You are expressly prohibited from using this evidence that you have just heard of prior alleged misconduct as evidence of the bad character of the defendant or as evidence of a tendency to commit criminal acts in general or as proof that he committed the acts charged in this case for which he is being prosecuted. The weight, if any, that you choose to give to this evidence is up to you. That is your job as jurors, to evaluate the evidence.
“If you find this evidence of prior alleged misconduct credible you may consider it for the sole and limited purpose of assisting you in determining whether the defendant has engaged in a characteristic method or pattern in the commission of criminal acts of which the charged conduct is a part and on the issue of the defendant’s intent.”
“When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... As we recently have noted, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [W]hether [the improper admission of evidence] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative . . . the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial. . . . Because the present case involves the improper admission of uncharged misconduct evidence, the most relevant factors to be considered are the strength of the state’s case and the impact of the improperly admitted evidence on the trier of fact.” (Citations omitted; internal quotation marks omitted.) State v. Randolph, supra, 284 Conn. 363-64.