STATE v. SHAW

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Supreme Court of Connecticut.

STATE of Connecticut v. Christopher SHAW.

No. 18207.

Decided: June 10, 2014

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.* Alice Osedach, assistant public defender, for the appellant (defendant). Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Stacey Haupt Miranda, senior assistant state's attorney, for the appellee (state).

The defendant, Christopher Shaw, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2),1 and one count of risk of injury to a child in violation of General Statutes (Rev. to 2005) § 53–21(a)(2).2 The defendant claims that the trial court improperly (1) denied him the opportunity to introduce evidence of prior sexual conduct that was admissible under General Statutes § 54–86f,3 commonly known as the rape shield statute, in violation of his constitutional rights to confrontation, to present a defense, and to due process, (2) admitted into evidence a laboratory report without the testimony of the analyst who performed the tests, in violation of the defendant's constitutional right to confrontation, (3) admitted into evidence a hearsay statement under the hearsay exception for spontaneous utterances, (4) permitted an emergency room physician to testify as an expert witness over defense counsel's objection, and (5) declined the defendant's request to give a jury instruction on the credibility of child witnesses. We reverse the judgment of the trial court and remand the case for a new trial.

I

The jury reasonably could have found the following facts. On January 28, 2006, the victim, A,4 age eleven, was living with her mother, B, her fifteen year old brother, K, her eight year old sister, and the defendant in B's apartment in New Haven. Around 11 p.m. that evening, while A's older sister, M, was visiting the family, the defendant came home in search of his identification card (ID) so that he could go out to a club. The defendant believed that the ID was in his coat, but when B saw that he was intoxicated, she took the ID from his coat, without his knowledge, and hid it in her purse so that he would not go out.

After a minor altercation during which the defendant took B's purse and said he would not give it back until she gave him the ID, M retrieved the coat and handed it to the defendant. He then apologized for the argument and proceeded to leave the apartment, unaware that the ID no longer was in his coat. Shortly thereafter, B also left the apartment to drive M back to her home. After she dropped M off, she called her three younger children and asked A if the defendant had returned. When A replied that the defendant had returned in search of his ID but, after failing to find it, “stormed back out” looking for B, B decided to stay out for a while before returning home.

At approximately 1:20 a.m., B returned to the apartment. She immediately noticed that the defendant's boots were on the floor and his coat was on the sofa, where he normally slept. When she went to her bedroom, she found the door closed and difficult to open because two large garbage bags filled with clothing had been pushed up against the other side. After she managed to open the door, she observed two shadows, one of which appeared to be on top of the other, near the head of the bed. Upon turning on the light, the shadows “jumped,” and she saw the defendant sitting toward the foot of the bed and A sitting up in the middle. The defendant was wearing a shirt and appeared to have nothing on below his waist. A was wearing a nightgown, and her underwear was around her ankles. B immediately ran to the kitchen and called 911. When the police arrived shortly thereafter, she accused the defendant of raping A, and the police arrested him.

While the police detained the defendant in the living room, Officer Nancy Jordan questioned A in the kitchen. Jordan then accompanied A and B to the emergency department at Yale–New Haven Hospital (hospital), where A was examined by Mark Cicero, a physician specializing in pediatric emergency medicine. Emergency department personnel utilized a sexual assault evidence collection kit in accordance with the state protocol prescribed for alleged sexual assaults. See General Statutes § 19a–112a. Later that day, B went to the New Haven Police Department and gave a formal statement regarding the assault.

The defendant was charged with sexual assault in the first degree in violation of § 53a–70 (a)(2) and risk of injury to a child in violation of General Statutes (Rev. to 2005) § 53–21(a)(2). A jury found him guilty of both offenses, and the trial court rendered judgment imposing a total effective sentence of thirty years, execution suspended after twenty years, with ten years probation. This appeal followed.

II

The defendant first claims that the trial court improperly excluded evidence that was admissible under the rape shield statute in violation of his constitutional rights to confrontation, to present a defense, and to due process under the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution. He claims that his constitutional rights were violated because, in order to rebut the inference that he was the cause of vaginal injuries to A that were identified and reported by Cicero, he should have been allowed to show an alternative source of the injuries and a motivation for A and B to fabricate the assault through the introduction of evidence that the defendant had caught A and her older brother, K, engaging in sexual intercourse three days earlier.5 The state responds that the trial court properly excluded the evidence because the defendant failed to make an adequate showing of relevance. We agree with the defendant.

A

A testified that, sometime after B left the apartment on the evening of January 28, 2006, to take M back to her home, the defendant entered A's bedroom, awakened her, and told her to go into the living room, where he directed her to remove her underwear. A then went with the defendant, while still clad in her nightgown, into B's bedroom, where they engaged in sexual intercourse on the floor and on the bed for thirty to forty-five minutes. A further testified that the defendant was on top of her and had put his penis in her vagina.

Cicero, the emergency department physician who subsequently examined A at the hospital, testified that A gave him a similar but more detailed account of what had happened in the bedroom that night. He testified that A told him that the defendant had put his mouth on her vagina and then had put his penis in her mouth and her vagina. With respect to A's physical condition, he testified that he observed no lesions or injuries on A's external genitalia but noted the presence of six superficial tears on the internal structures that lead into and surround the vagina, known as the “fossa navicularis” or “vestibular fossa.” He opined that the injuries had been sustained within the past seventy-two hours and that it was “quite possible that they had been sustained within the last few hours” before Cicero's examination of A. He also testified that he had detected no semen, substance or debris on A that could be attributed to the defendant and had observed no other bruises or injuries on A's body. On cross-examination, he added that the vaginal tears were not likely to have been caused by consensual sexual intercourse and that A told him that she had not been exposed to any sexual activity within the past three days other than the alleged assault.

The defendant filed a motion two days before the start of the trial requesting the court's permission to present evidence that A had engaged in sexual intercourse with K three days before the alleged assault. The defendant explained that he wanted to introduce the evidence for use in his case-in-chief or to rebut evidence presented by the state concerning the vaginal tears identified by Cicero during his examination of A. The defendant offered the evidence under three exceptions to inadmissibility set forth in the rape shield statute. He offered the evidence under § 54–86f (1) to show that he was not the source of the vaginal tears. He also offered the evidence under § 54–86f (2) and (4) to challenge A's credibility and to establish a motive for her to fabricate evidence in support of her claim that he was the source of her injuries, which was that she wanted to conceal the fact that she had been having a consensual sexual relationship with K.

The following day, the court held a hearing on the defendant's offer of proof. Defense counsel first discussed her reasons for seeking admission of the evidence. The state then objected on relevancy grounds. The state relied on the five part test articulated in State v. Rolon, 257 Conn. 156,183–84, 777 A.2d 604 (2001), for determining the admissibility of prior sexual conduct evidence offered to demonstrate an alternative source of the victim's sexual knowledge where the victim may be confused over the identity of the perpetrator. The state argued that it did not believe that the defendant could satisfy the first two prongs of the test, namely, that A clearly had engaged in sexual activity with K and that the prior alleged conduct resembled the alleged conduct in the present case. Defense counsel responded that, in addition to the defendant's testimony, a social worker's report contained information that A had told the social worker that K and the defendant did not get along because the defendant had alleged that K was inappropriately touching A. Defense counsel thus urged the court, under the provisions of the rape shield statute, to accept the defendant's written offer of proof at that time and to hold an evidentiary hearing, outside the presence of the jury, for each of its proposed witnesses following commencement of the trial to determine whether the witnesses should be allowed to testify in support of the defendant's theory. The court responded that it was prepared to rule on the motion before commencement of the trial and that the issues could be revisited, if necessary, later in the proceedings. When the court suggested that the defendant testify that day as to the alternative source of A's injuries, counsel responded that the defendant was not prepared to testify and that his testimony, standing alone, would be insufficient to support his defense.

Following a recess, defense counsel changed her mind, and the defendant took the stand. The defendant testified in support of his offer of proof that, “[t]hree days before [he] was arrested,” he observed a sexual encounter between A and K. He elaborated that, around 3 p.m. on January 25, 2006, before B returned home from work, he came out of the bathroom and noticed A and K in an adjacent room in “an awkward position” and engaged in “[i]nappropriate touching .” As soon as A saw the defendant, she jumped out from in front of K. The defendant then set his cell phone to record mode, laid it down on a nearby table, and went to take a shower. The defendant later listened to the recording and heard what “sounded like intercourse, moaning, sex․” After the defendant told A what he had done and let her listen to the recording, she admitted that she and K were “having sex” while the defendant was in the shower. The defendant also let B hear the recording after she came home from work and told her what he had seen. B then had a private conversation with A, during which A denied having sex with K. Following her conversation with A, B went with the defendant to a department store and purchased a video surveillance camera.

The court asked if there was any further evidence the parties wanted to offer, and the state referred to certain information it had received from a testing laboratory during the court recess. According to the state, a laboratory technician had reported that certain recordings on the defendant's cell phone did not “match” what the defendant was claiming had been recorded while he was in the shower, but the technician was unable to testify in court at that time. Defense counsel objected to the evidence on the ground that she “[had] been asking for [the] cell phone information for [the past] nine months” and had never received it. Defense counsel also contended that the reported information would not be useful unless accompanied by information regarding the date of the recordings identified by the laboratory and whether the recordings had been made over the alleged recording of A and K. The trial court rendered no decision on the cell phone evidence, and the parties never referred to it during the subsequent proceedings.

In her final argument on the offer of proof, defense counsel reiterated that the prior sexual conduct evidence was essential to the defendant's right of confrontation and was admissible under the rape shield statute to explain (1) an alternative source of the vaginal tears that were purportedly caused within three days of Cicero's examination of A, and (2) the motivation of A and B to fabricate the alleged assault so that the defendant would be arrested and removed from the household and no longer privy to what was happening within the family. Defense counsel further stated that she would seek testimony from A and B, and that, if they denied the defendant's claims, their testimony would be subject to impeachment by the defendant's testimony. The state repeated its earlier argument that the defense had failed to prove under Rolon that the prior acts clearly had occurred and that they closely resembled the acts alleged in the present case, especially given A's claim that the defendant had engaged in both oral penetration and vaginal intercourse.

In an oral ruling on the motion the next day, the trial court initially noted that prior sexual conduct evidence must be relevant in order to be admissible. It then stated that the defendant's offer of proof did not support a continuing evidentiary hearing or admission of the proposed evidence because the defense had not made the required preliminary showing that the evidence sought to be explored in a further hearing was relevant.6 The court concluded that the evidence was not relevant to a material issue in the case or necessary to the defense because the prior sexual conduct between A and K had not been clearly defined or shown to closely resemble the defendant's alleged conduct under the principles articulated in Rolon and State v. Kulmac, 230 Conn. 43, 61–63, 644 A.2d 887 (1994). The court also concluded that the probative value of the evidence did not outweigh its prejudicial effect because it involved sex between siblings, and that a discussion of such conduct would not be allowed at trial. The court stated: “There is no reference to sibling sex among these children unless you say, Judge, I have to ask it, I will excuse the jury, and [I will] hear your offer at the time.” The court then denied the motion.

Following a recess, the jury entered the courtroom and began hearing evidence. B was the third witness to testify. On cross-examination, defense counsel elicited testimony that (1) she and the defendant previously had considered each other “boyfriend and girlfriend” but had broken up several months prior to January 28, 2006, (2) she would sometimes leave K alone with the other children, (3) the apartment was not very soundproof, and she could hear voices in the adjacent bedroom from her own bedroom, (4) she saw only shadows when she first entered her bedroom at the time of the incident and thus did not actually see the defendant on top of A, (5) she saw the defendant sitting at the foot of the bed after she turned on the light, (6) she did not know if the defendant was wearing underwear, (7) A was wearing a nightgown when she was sitting on the bed, (8) the defendant did not try to leave the apartment after the incident, (9) she left the defendant alone with A when she went downstairs to open the door for the police, and (10) she never saw the defendant act inappropriately toward A during the many months he had lived with the family prior to January 28.

In the midst of this testimony, defense counsel requested the court's permission to ask B certain additional questions relating to the facts alleged in the defendant's motion to admit the prior sexual conduct evidence. Outside the presence of the jury, defense counsel explained that she wanted to ask B about the defendant's concern regarding the behavior of her children, whether B also was concerned about the behavior of her children, without getting into the reasons why, and whether B was so concerned about her children that she bought a video surveillance camera to monitor their behavior. Counsel argued that the answers to these questions would be relevant to B's motive, bias and interest in testifying against the defendant, apparently referring to the defendant's claim that A had sexual intercourse with K. The state objected on the ground that the proposed testimony was not admissible under the court's prior ruling, and, in any event, it was not relevant to B's testimony as to what she had observed in the apartment at the time of the alleged assault. The court agreed with the state and denied counsel's request, explaining that the suggested line of questioning had no bearing on, or relevance to, the issues in the case.

When the court reconvened three days later, the defendant filed a written motion for reconsideration of the trial court's ruling barring admission of the prior sexual conduct evidence.7 The motion also contained a request for permission to present the testimony of the defendant, A, B and K in support of the defendant's claim of third party culpability for A's injuries. The defendant explained, as defense counsel had done in connection with the previous motion, that the theory of the defense was that A and B had contrived the accusation against the defendant to cover up his discovery that A was having sexual intercourse with K. The defendant thus sought to (1) question B about what the defendant had told her regarding the incident involving A and K, as well as her subsequent actions in arranging for the surveillance of her children, (2) question K about the source of A's injuries, the fact that K was alone with A during the three days before the alleged assault, and what he may have heard and seen on the date of the alleged assault, and (3) question A about having sexual intercourse with K, being alone with K during the three days before the incident, her awareness that the defendant had made accusations that she had sexual intercourse with K, and about whether the foregoing accusations motivated her to fabricate the claim against the defendant so that he would no longer be able to make future accusations.8 The defendant argued that to rule otherwise would deny him his constitutional rights to present a defense, to testify, and to confront witnesses.

In its oral ruling on the motion for reconsideration, the court stated, with respect to K, that it was not barring the defense from calling anybody from testifying but that the testimony must be relevant and material to the issues in the case. The court asked defense counsel to explain the relevance of K's proposed testimony because it had not yet heard anything that would support counsel's position that the testimony was admissible. Defense counsel reiterated that K's testimony was intended to show that K had a sexual relationship with A three days before the alleged assault and that this was both the source of A's injuries and the motivation for A and B to cover up that relationship by making accusations against the defendant. The state characterized the proposed line of questioning as self-serving, and the court, after stating that it had heard the same argument before, denied the defendant's request to reconsider its prior ruling because “there's nothing coming into this court regarding any incestual relationships with this person and her brother, none.” The court added that, if the defense wanted to bring K in “to make an offer of proof to preserve it for the appellate record,” that would be up to counsel. The court repeated that the proposed testimony had no relevance or bearing on the issues in the case and that the only relevant evidence was evidence relating to what had happened in B's bedroom in the early morning hours of January 29. The court characterized the evidence offered by the defense as “speculation and ․ hearsay and not admissible․”9

Defense counsel then requested and was granted permission to make a record of the questions that she wanted to ask K if he was brought in to testify.10 Thereafter, counsel also asked the court if she could make an offer of proof with respect to certain questions she wanted to ask A on cross-examination that might be covered by the court's denial of the initial motion to admit the prior sexual conduct evidence.11 The court allowed counsel to put the questions on the record but denied counsel's request to cross-examine A, stating that the questions would improperly focus the jury's attention on areas that the court found immaterial, irrelevant, confusing, and in no way supported the defendant's theory of relevance. The court further explained that the rape shield statute protected those areas of inquiry and repeated that the focus should be on what had happened in B's bedroom during the early morning hours of January 29, and on the people who were there, namely, the defendant, A, B, and any other person who might have been in the room before B arrived. Accordingly, the defendant was unable to present his proposed defense that A's injuries were caused by sexual intercourse with K three days before the alleged assault.12

B

We begin our analysis with the standard of review. “It is well established that a trial court has broad discretion in ruling on evidentiary matters, including matters related to relevancy․ Accordingly, the trial court's ruling is entitled to every reasonable presumption in its favor ․ and we will disturb the ruling only if the defendant can demonstrate a clear abuse of the court's discretion.” (Citations omitted; internal quotation marks omitted.) State v. Cerreta, 260 Conn. 251, 260, 796 A.2d 1176 (2002). If we conclude, however, that the evidentiary ruling was improper and that the evidentiary impropriety “is of constitutional [proportion], the state bears the burden of proving that the error was harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Osimanti, 299 Conn. 1, 16, 6 A.3d 790 (2010).

“Whether such error is harmless in a particular case depends [on] a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case․ Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial․ If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Internal quotation marks omitted.) State v. Wilson, 308 Conn. 412, 426, 64 A.3d 91 (2013).

With respect to the governing legal principles, “[i]t is well established that a defendant has the right to confront witnesses against him as guaranteed by the confrontation clauses of both our federal and state constitutions․ [T]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the [s]tate's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process․

“We are mindful, however, that the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process․ For example, the trial court has a right, indeed, [a] duty, to exclude irrelevant evidence․ The rules excluding evidence from criminal trials, however, may not be arbitrary or disproportionate to the purposes they are designed to serve․

“We [likewise] recognize that, in cases involving sexual crimes, [t]he rape shield statute ․ was enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material․ [T]he state ․ [relies on] the legislative intent behind the rape shield statute in [seeking to exclude] the prior sexual abuse evidence in order to [protect] the victim's sexual privacy ․ [shield] her from undue harassment ․ and [enable her] to testify in court with less fear of embarrassment․ [Nonetheless], [a]lthough the state's interests in limiting the admissibility of this type of evidence are substantial, they cannot by themselves outweigh the defendant's competing constitutional interests.” (Citations omitted; internal quotation marks omitted.) State v. Rolon, supra, 257 Conn. at 174–76, 777 A.2d 604.

“In order to determine whether evidence of prior sexual abuse properly was excluded in the context of [a] sexual assault case, therefore, we refer to the strictures of Connecticut's rape shield statute․ [Section] 54–86f prohibits the admission of a victim's prior sexual conduct ․ unless such evidence is ․ offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of ․ injury, or ․ offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct ․ or ․ otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights.” (Internal quotation marks omitted.) Id., at 178, 777 A.2d 604.

The rape shield statute “provides for a two step process before evidence proffered by a defendant as falling under one of the statute's exceptions may be admitted. First, if the defendant has satisfied his preliminary burden in his offer of proof to show that the evidence is potentially relevant, pursuant to the statute the trial court must conduct a hearing to determine the admissibility of the evidence. Second, [i]f, after [a] hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion․

“In the first step of this two part process, the defendant bears the burden of showing that the proffered evidence overcomes the presumption, inherent in § 54–86f, that evidence of the sexual conduct of a [sexual assault] victim is inadmissible and satisfies the statute's requirement that only evidence relevant to the case, rather than evidence relevant merely to demonstrate the unchaste character of the victim, be admissible․

“If the trial court determines that the evidence is relevant and admissible under one of the exceptions enumerated in § 54–86f, the trial court must proceed to the second part of the two part process outlined in the statute. That is, the evidence is admissible only if its probative value outweighs the prejudicial impact on the victim․

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue․ One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable․ Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter․ In considering whether evidence [is] sufficiently relevant to fall under one of the exceptions enumerated in § 54–86f, we have drawn a distinction between, on the one hand, evidence that is relevant to establish some portion of the theory of defense or rebut some portion of the state's case, which is admissible if the court determines that the probative value of the evidence outweighs its prejudicial impact on the victim, and, on the other hand, evidence that is offered as an impermissible attempt to establish the victim's general unchaste character [which is] prohibited by [§ 54–86f].” (Internal quotation marks omitted.) State v. Crespo, 303 Conn. 589, 602–603, 35 A.3d 243 (2012). “A clear statement of the defendant's theory of relevance is all important in determining whether the evidence is offered for a permissible purpose.” (Internal quotation marks omitted.) State v. Rolon, supra, 257 Conn. at 179, 777 A.2d 604. “When the trial court excludes defense evidence that provides the defendant with a basis for cross-examination of the state's witnesses, [despite what might be considered a sufficient offer of proof] such exclusion may give rise to a claim of [a] denial of the right to confrontation and to present a defense.” (Internal quotation marks omitted.) Id., at 177, 777 A.2d 604.

We emphasize that, “[i]n order to carry [the] threshold burden of establishing relevance, a defendant must make an offer of proof13 as a prerequisite to obtaining an evidentiary hearing to determine the admissibility of evidence․ The preliminary showing must be sufficient to demonstrate that the evidence sought to be explored in the evidentiary hearing is relevant ․ [and] to enable the trial court to make an informed ruling in connection with the exercise of its discretion on the issue.” (Citation omitted; footnotes altered; internal quotation marks omitted.) State v. Sullivan, 244 Conn. 640, 649–50, 712 A.2d 919 (1998). When a defendant's core constitutional rights are implicated, a trial court is obligated to order, sua sponte, an evidentiary hearing on an offer of proof to determine whether the evidence is admissible. Id., at 650–51 n. 14, 712 A.2d 919.

C

Mindful of these principles, we first conclude that the trial court improperly excluded the proffered evidence of prior sexual conduct on relevancy grounds. The defendant's initial motion to introduce the evidence and his motion for reconsideration both made clear that he was not offering the evidence to suggest that A, who was eleven years old at the time of the alleged assault, had an unchaste reputation or character. Rather, the motions explicitly stated, and the defendant's allegations unmistakably demonstrated, that the evidence of prior sexual conduct was offered to show a possible alternative source of A's injuries under the exception set forth in § 54–86f (1), to challenge A's credibility under the exception set forth in § 54–86f (2), and to show a possible motivation on the part of A and B to fabricate the accusations against the defendant under the exception set forth in § 54–86f (4).

Moreover, “[§ ] 54–86f encompasses inferential as well as direct evidence of sexual conduct.” State v. Rinaldi, 220 Conn. 345, 354, 599 A.2d 1 (1991). In the present case, the relationship between the proffered evidence, both inferential and direct, and the sexual conduct sought to be proved were such that a jury could conclude that A and K had engaged in sexual intercourse three days before the alleged assault. The defendant testified that he had observed A and K in an awkward position, had seen them inappropriately touching, had heard “moaning” and other sounds on the cell phone recording suggesting they were having sexual intercourse, had been told by A that she and K were “having sex” while the defendant was in the shower, and, after informing B about what he had seen and heard, had accompanied B to a department store where she purchased a video surveillance camera. These allegations, if proven, could have allowed the jury to conclude that A's injuries were caused by K and not by the defendant. The evidence therefore was relevant under the rape shield statute because there was a visible connection between the facts alleged in the defendant's offer of proof and the facts on which the charges against him were based.14

Our conclusion that the evidence was relevant, however, does not end the inquiry. We also must examine whether the probative value of the evidence outweighed its prejudicial effect. The trial court ultimately concluded that the evidence was unduly prejudicial and, therefore, inadmissible because, in addition to failing the relevancy test, it involved sex between siblings.15 We disagree.

Evidence should be excluded as unduly prejudicial when (1) it may unnecessarily arouse the jurors' emotions, hostilities or sympathies, (2) it may create distracting side issues, (3) it will consume an undue amount of time, or (4) one party is unfairly surprised and unprepared to meet it. E.g., State v. Rinaldi, supra, 220 Conn. at 356, 599 A.2d 1.

We first note that, when evidence is proffered under one of the exceptions in the rape shield statute to support an alternative theory concerning the source of the victim's injuries, it will almost always be deemed more probative than prejudicial because it implicates the defendant's constitutional right of confrontation. Thus, although incestual relationships may inspire a negative emotional response, the fact that A and K are siblings does not outweigh the probative value of evidence that they had engaged in sexual intercourse three days before the alleged assault because such evidence supported the defendant's claim that the sexual encounter between A and K could have been an alternative source of A's injuries and a motivation for A and B to accuse the defendant of sexual assault. Moreover, the potentially prejudicial effect of the evidence was lessened by the fact that its significance had nothing to do with the sibling relationship but, rather, with the fact that A's injuries may have resulted from sexual intercourse with someone other than the defendant three days before the alleged assault. Any prejudicial effect of the evidence also was limited because it was not overly graphic. Accordingly, we conclude that the probative value of the proffered evidence outweighed its prejudicial effect and that the trial court abused its discretion in precluding its admission.

To the extent the trial court concluded that the facts did not support a continuing evidentiary hearing or admission of the evidence because the prior sexual conduct had not been clearly defined or shown to closely resemble the alleged assault, we disagree. In reaching that conclusion, the trial court relied on Rolon, in which the defendant claimed that “he was denied his constitutional rights to confrontation, to present a defense and to a fair trial when the trial court prohibited him from presenting evidence of [the victim's] prior sexual abuse where the factual similarities between the present and previous instances could have: (1) demonstrated an alternative source for [the victim's] sexual knowledge; and (2) resulted in [the victim's] confusion over the identity of the perpetrator.” State v. Rolon, supra, 257 Conn. at 160, 777 A.2d 604. To resolve that claim, we adopted the five part test first articulated by the Wisconsin Supreme Court in State v. Pulizzano, 155 Wis.2d 633, 656, 456 N.W.2d 325 (1990), for determining whether a defendant has established “a constitutional right to present otherwise excluded evidence of a child [sexual abuse victim's] prior sexual conduct for the limited purpose of proving an alternative source for sexual knowledge․” State v. Rolon, supra, at 183, 777 A.2d 604. Under that test, “[a] defendant must make an offer of proof to the trial court 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.” (Internal quotation marks omitted.) Id., at 184, 777 A.2d 604, quoting State v. Pulizzano, supra, at 656, 456 N.W.2d 325.

We conclude that the trial court improperly relied on the test set forth in Rolon to preclude admission of the proffered evidence. Unlike in the present case, it was undisputed in Rolon that the victim had been subjected to prior sexual abuse by someone other than the defendant; see State v. Rolon, supra, 257 Conn. at 161 and n. 10, 777 A.2d 604; and, therefore, the defendant had no need to prove that the prior sexual abuse occurred. In Rolon, the abuse began when the victim was eight months old and continued until she was five years old; see id., at 161–63, 777 A.2d 604; and the issue before the court was whether the victim, because of her very young age, could have confused the defendant with the perpetrator of the prior abuse because of similarities in the type of abuse and in the characteristics of the former perpetrator and the defendant, both of whom were older men and grandfather figures. See id., at 159–60, 166–67, 777 A.2d 604.

In contrast, the defendant in the present case does not claim that A was confused as to the identity of the perpetrator because of prior sexual abuse similar to the sexual abuse at issue, but, rather, that she was not telling the truth about what had happened in the early morning hours of January 29. Thus, insofar as the trial court excluded the proffered evidence by relying on the first two prongs of the Rolon test, which require that “the prior acts clearly occurred” and that “the acts closely resembled those of the present case”; (internal quotation marks omitted) id., at 184, 777 A.2d 604; its reliance was misplaced because the defendant's theory that A had sexual intercourse with K three days before the alleged assault does not fall within the exception in the rape shield statute described in Rolon, which is applicable to evidence admitted for the limited purpose of proving an alternative source of sexual knowledge .16 See State v. Brisco, 84 Conn.App. 120, 138–39, 852 A.2d 746 (rejecting application of Rolon test because source of sexual knowledge not at issue), cert. denied, 271 Conn. 944, 861 A.2d 1178 (2004).

The state argues that the trial court properly declined to admit the proffered evidence because the defendant failed to allege facts that would have supported a finding that the “inappropriate touching” and recording of the “moaning” he attributed to A and K was capable of causing A's injuries, which Cicero testified were the likely product of nonconsensual, forcible penetration of A's vagina. The state thus contends that only by means of impermissible speculation could the jury have found that A's injuries were the result of prior sexual conduct with K. We disagree.

We first note that Cicero did not testify before the trial court rendered its decision on the defendant's motion, and, therefore, the court did not consider his testimony in reaching its conclusion as to whether the jury should have been allowed to hear the defendant's proposed defense. Even if Cicero had already testified, however, the defendant made allegations in support of his defense other than those concerning the inappropriate touching and the cell phone recording. These allegations included that A admitted, after he allowed her to hear the cell phone recording, that she and K were “having sex” while the defendant was in the shower, that the defendant informed B about this incident, and that B purchased a video surveillance camera after the defendant had informed her. As previously noted, the rape shield statute “encompasses inferential as well as direct evidence of sexual conduct.” State v. Rinaldi, supra, 220 Conn. at 354, 599 A.2d 1. Consequently, the defendant was not required to allege more detailed facts or rebut possible contrary evidence or testimony in order to satisfy his burden of showing that the proffered evidence was relevant and admissible.17

We therefore conclude that the trial court abused its discretion by improperly precluding the defendant from introducing the prior sexual conduct evidence in violation of his federal and state constitutional rights to confrontation. We further conclude that, if the evidence had been admitted, the outcome of the trial could have been different because it was related to issues of critical importance in the case, namely, the source of A's injuries, her credibility, and her motivation for accusing the defendant of sexually assaulting her. Moreover, the state's case was not particularly strong because there was no direct evidence that A was sexually assaulted by the defendant. B testified on cross-examination that, when she first entered her bedroom at the time of the alleged assault, she saw only shadows and thus did not actually see the defendant on top of A or having sexual intercourse with A. B also testified that the defendant was sitting at the foot of the bed and that A was wearing a nightgown and sitting in the middle of the bed when she turned on the light, that she assumed but did not know if the defendant was wearing underwear, that the defendant made no attempt to leave the apartment following the incident, that she sometimes left K alone with her other children, and that she never had seen the defendant acting inappropriately toward A during the many months he had lived with the family prior to January 28. Furthermore, if the jurors heard and believed the defendant's testimony regarding A and K, they also might have believed that A and B were motivated to fabricate the alleged assault for the purpose of removing the defendant from the household and covering up A's and K's allegedly inappropriate behavior. Accordingly, the trial court's preclusion of the evidence was not harmless beyond a reasonable doubt,18 and we reverse the judgment on that ground.19

The judgment is reversed and the case is remanded for a new trial.

In this opinion ROGERS, C. J., and NORCOTT, PALMER, EVELEIGH and McDONALD, Js., concurred.

Today's majority decision turns back the clock to a time when victims of sexual assault, whether they were children or adults, were subjected at trial to undue harassment, prejudice, fear of embarrassment, and a violation of their sexual privacy. This decision eviscerates the rape shield statute with the unfortunate consequence that defendants can now circumvent the very protections which the statute was intended to provide by asserting unsubstantiated self-serving claims and conjecture. This is a particularly troubling outcome for children with a prior history of being sexually abused. Therefore, I respectfully dissent.

I conclude that the trial court, after affording the defendant, Christopher Shaw, with multiple opportunities to present a sufficient offer of proof and holding an evidentiary hearing, correctly determined that the testimony and questioning sought by the defendant was not relevant and was more prejudicial than probative. Because I do not dispute the majority's recitation of the facts that the jury reasonably could have found, I do not repeat them here.1 I do, however, question the majority's legal conclusions. In deciding that the defendant's proposed testimony and the proposed questioning of A, the victim, K, her older brother, and B, their mother,2 were relevant and more probative than prejudicial, the majority glosses over the pretrial proceedings and legal arguments that transpired outside the presence of the jury and disproportionately focuses on the trial court's misplaced reliance on State v. Rolon, 257 Conn. 156, 777 A.2d 604 (2001). By ignoring the procedural posture that led the court to its legal conclusion, the majority overlooks the reality that, notwithstanding his motions and arguments, the defendant had not proffered any admissible evidence that A had engaged in sexual intercourse with K three days prior to the defendant's arrest or that A and B were attempting to cover up the defendant's allegations of said conduct.

The defendant made three offers of proof throughout the pretrial and trial proceedings. The first offer was made by the defendant in connection with a motion to present evidence of the prior sexual conduct of A and resulted in a hearing. The second offer of proof was made during the cross-examination of B, and the final offer of proof was made by way of the defendant's motion for reconsideration. A close look at these proceedings leads to the conclusion that the defendant failed to overcome the burden imposed on him by the rape shield statute.

I

The defendant first sought the introduction of evidence of prior sexual conduct of A pursuant to the rape shield statute, General Statutes § 54–86f,3 through a motion that he filed on February 27, 2008. In that motion, the defendant sought a hearing so that he could “present evidence concerning the prior sexual history of the alleged complainant, [A], to be used in either the defendant's case-in-chief or in rebuttal following the state's presentation on direct or rebuttal, of sexual injuries sustained by ․ [A], which [the state] claims resulted from this incident, in order to provide an alternate source for such injuries and as evidence relating to the motive of several witnesses to fabricate.” In support of his motion, the defendant asserted that an emergency room medical report and expert disclosures by the state identified A's injuries as having occurred recently, that discovery indicated that A had stated that the defendant and B were not getting along because the defendant had made allegations that A and K recently had been engaged in sexual misconduct, that a video camera had been seized by the police “which may show the inside of the home on the evening of the alleged offense,” and that the fact that A and B knew the defendant had made allegations of inappropriate sexual conduct between A and K gave them a motive to fabricate evidence against the defendant to prevent his claim from being revealed.

That same day, when the parties and the court were discussing outstanding motions, the trial court marked as a court exhibit the discovery packet that defense counsel had received the previous day, which had formed the basis for the defendant's motion. The packet contained a report from a social worker who interviewed A following the assault, which stated, “[B] advised [the] police that [the defendant] had been telling [B] she needs to watch her fifteen year old son [K] as [the defendant] believed [K] and [A] were having intercourse. As a result, a video camera was placed in the home so that [K] and [A] could be watched. However [the defendant] is the only one in the home [who] knows how to work the video camera. According to [the] police report there was no evidence of [A] and [K] being sexually involved. However the video camera did show [the defendant] turning off the camera․ [A] denies [ever] being touched by [K]. [A] stated [K] and [the defendant] do not get along because [the defendant] has alleged that [K] is touching [her].” The discovery packet also contained a referral to the Child Sexual Abuse Clinic made by the social worker that stated, “[the defendant] has alleged that [A's] older sibling [K] was having intercourse with [A] however [A] denies.”

The next day, on February 28, 2008, defense counsel Auden Grogins argued the motion. She asserted that an emergency room report written by Mark Cicero, a physician, disclosed that A had recent vaginal tears. Grogins represented that the defendant's proposed testimony and other evidence would establish that another party was responsible for the injuries and that B was investigating the defendant's allegations of sexual intercourse between A and K. Grogins asserted that the defendant “would testify that he caught [A and K] engaging in sexual relations and that he told [B] ․ of this suspected activity and that ․ with [the] permission of [B] the defendant ․ set up a video ․ to tape-record any inappropriate activity with [A and K]․” Grogins maintained that the defendant would assert that the inappropriate activity that was ongoing up until the time of this incident or within forty-eight hours of this incident was the cause of A's vaginal tears. She also argued that recently disclosed discovery indicated that a social worker4 had reported that A acknowledged that the defendant was not getting along with others in the household and that B was investigating the defendant's allegations of sexual contact between A and K. Grogins asserted that this information was admissible under the first and fourth exceptions to the rape shield statute because it was relevant to the defendant's theory that A's fabrication of the allegations against the defendant was motivated by her desire to prevent the discovery that she and K were having sexual intercourse.5

The state argued that nothing proffered by defense counsel was relevant to the source of A's injury. It noted that Grogins' failure to identify the time period in which A and K had allegedly been engaged in sexual intercourse prevented the state from establishing whether the alleged sexual acts between A and K were too remote in time from the charged incident. The state further argued that nothing on the videotape, which it previously represented would not be admitted during trial because it did not contain any relevant footage, suggested that A and K were having sexual intercourse, and that A had never claimed to have had sexual intercourse with K, only with a different brother. It stated that the defendant was the only person who had claimed that A and K were having sexual intercourse and that he offered no proof to show that it actually occurred. The state then argued that the defendant had failed to satisfy the five factor test set forth in State v. Rolon, supra, 257 Conn. at 183–84, 777 A.2d 604.

Grogins responded that, to satisfy the source of injury exception, the defendant would testify that he had observed recent sexual activity between A and K. When the court asked if the defendant wanted a hearing at that time, Grogins pointed to the social worker's report, which indicated that A had stated that K and the defendant did not get along because the defendant alleged that K was touching A. The court then asked defense counsel if K was ready to be offered as a witness to support their theory, and Grogins responded that the defendant would be the only one to offer that evidence.

Defense counsel Steven Jacobson then stated that they were not prepared for a hearing at that time. Jacobson argued that “the witnesses we would need to present, which would include [B], will be here for the trial, and it ․ wasn't presented to us that we should appear with witnesses this afternoon, ready ․ to present on this issue, because as the rule itself says, it talks about basically having these hearings, in effect, during trial․” He then asked, based on the offer of proof, that the court allow the witnesses to testify before the jury, then hold the hearing outside the presence of the jury and make a decision at that time. The state also asked that any questions related to the offer of proof be asked outside the presence of the jury. The court stated that it was prepared to rule on the motion at that time, but that the parties could “always revisit issues based upon certain evidence during the course of the trial․” It then asked if defense counsel wanted the court to hold its decision on any particular issue until it arose.

At that point, the state interjected, stating that Cicero, the physician who examined A, would not be testifying until after A and B had testified. Jacobson expressed a concern that they would not be able to cross-examine A and B regarding the defendant's theory that K was the source of A's injuries because there would not be any evidence concerning A's injuries when they testified. When the court asked defense counsel what they wanted the court to do, Jacobson reiterated that their offer of proof was that the defendant would testify that he caught A and K in sexually inappropriate conduct within several days before the incident. When the court indicated that defense counsel could conduct the hearing at that time with the defendant as a witness, Jacobson resisted, stating “our problem is, putting the defendant on now doesn't get us there because we need what [A] would say and [B] would say to ․ make our proof, which is why I believe we should do it through the court․ ” (Emphasis added.) The court asked Jacobson if the defendant was the source of the information regarding any sexual improprieties between A and K. Jacobson responded that the defendant was the source of the information, but that A and B might be a source of information as well. The court responded, “it was advanced to this court by way of argument, several arguments, that [the defendant] was the one who ․ identified this issue among the siblings, and as a result, whatever was set up, he set it up, and you indicate [that] there's no tapes to support any, at least videotaping any conduct, and you ask the court now to make a finding that ․ something has happened clearly․ I am not persuaded at this time that that evidence is going to be allowed.”

The court again asked if defense counsel was ready to proceed on their motion, noting that the motion had asked for the hearing and that hearings usually require evidence from the witness stand. They indicated that they were not ready because their perception was that the hearing would take place during trial. The court told defense counsel to proceed on their motion. After initially denying their request for additional time, the court granted their request for a short break to allow defense counsel an opportunity to explain to the defendant what was happening.

After the break, the defendant elected to proceed on his motion and testified to the following. Three days prior to his arrest, when the defendant had come out of the bathroom at B's apartment, he saw A and K in the living room in an awkward position, and there appeared to be inappropriate touching. In an immediate response, the defendant pressed “record” on his cell phone and left it on the table in front of the doorway to the kitchen while he took a shower. After his shower, the defendant listened to the recording, which “sounded like intercourse, moaning, sex,” then confronted A with it. After she listened to the recording, A told the defendant that a couple of months prior, K had come into her room and had had sexual intercourse with her, that they had been having sexual intercourse ever since, and that they had been having sexual intercourse while the defendant was in the shower.6 When B returned home from work, the defendant told B what he had seen and let her listen to the recording. When B confronted A, however, she denied having sexual intercourse with K. Afterward, B spoke to the defendant and they purchased a surveillance camera.

After the defendant concluded his testimony, the court asked if there was any additional testimony that either party wanted to offer. The state notified the court that the recordings from the defendant's cell phone had been tested and that the results did not match the defendant's claim, but that a laboratory technician was not available to testify, only the state's investigator, who spoke to someone from the laboratory on the telephone. Defense counsel objected because they did not have the test results, and the state subsequently conceded that it had no evidence to offer.

Counsel then made closing arguments. Jacobson argued that the defendant's testimony about A's statement that she had had sexual intercourse that day with K was relevant to both subdivisions (1) and (4) of § 54–86f, the rape shield statute. A's statement was relevant to the exception in subdivision (1) of § 54–86f because it explained the medical evidence, which stated that the injuries to A were up to seventy-two hours old. Defense counsel further argued that the defendant's testimony was relevant to the exception in subdivision (4) of § 54–86f because A “now knows, according to [the defendant], that three days before this incident, where we would claim she fabricated the sexual assault, that [the defendant] ha[d] gotten an admission from her that she [admitted] sexual assault by [K]. That would be a motive of [A] to want [the defendant] to be arrested and out of the household. [B] also has a similar motive.” Jacobson argued that the questions sought to be asked were admissible because the defendant could impeach the testimony of A and B if they contradicted the defendant's claim.

The state argued that the defendant had not satisfied his burden because he had not demonstrated that the prior act had clearly occurred. The state continued: “According to the defendant, he saw somebody in an awkward position and an inappropriate touching. There was no specificity on what acts he's claiming occurred, no acts at all, except [that] there was an inappropriate touching and in an awkward position. That's the only thing he ․ said that happened․ And [A], according to the defendant, said certain things; however, [she] has denied it to all law enforcement since the day he claimed this at the scene․ I think ․ the two main arguments [are] that the prior acts did not clearly [occur], because everybody's denying it. It's the defendant offering self-serving hearsay as to what he can testify to on the stand. [A] has never claimed any of this. And ․ we're also touching upon an issue that the rape shield statute was intended to [protect]. The legislative intent of that statute was to not embarrass a victim of whatever age, to just throw in anything that you think could possibly be brought up to embarrass her. The statute was ․ intended to prevent that, and the probative value of the evidence that they submit must outweigh its prejudicial effect. And [the state does not] believe that the evidence [defense counsel is] intending to admit, that has no basis except what the defendant claims, is [anything] but prejudicial to the victim in this case.”

The next day, on February 29, 2008, prior to the start of evidence, the court denied the motion. The court found that, based on the defendant's testimony of what he saw and did not see, the facts did not support a continuing evidentiary hearing. It found that the prior acts had not clearly been defined, that they did not resemble the present case and that they were not clearly relevant to a material issue. The court continued: “[T]he evidence is not ․ necessary to the defendant's case ․ based upon the facts presented․ And certainly, the probative value of the evidence does not outweigh its prejudicial effect. We have an ․ eleven year old child and ․ inferentially, the court has [been] asked pursuant to § 54–86f to have a discussion in this court about sibling sex. That will not be allowed, it is not relevant. There is no reference to sibling sex among these children unless you say, Judge, I have to ask it. I will excuse the jury, and I'll hear your offer at the time.”

Although not discussed by the majority or disputed by the parties, it is important to note, as will become apparent, that the defendant's initial offer of proof, by way of his written motion and oral argument, satisfied his preliminary burden.7 “In the first step of [the] two part process [set forth in § 54–86f], the defendant bears the burden of showing that the proffered evidence overcomes the presumption, inherent in § 54–86f, that evidence of the sexual conduct of a rape victim is inadmissible and satisfies the statute's requirement that only evidence relevant to the case, rather than evidence relevant merely to demonstrate the unchaste character of the victim, be admissible.” State v. Smith, 280 Conn. 285, 296, 907 A.2d 73 (2006). “The showing must be sufficient to enable the trial court to make an informed ruling in connection with the exercise of its discretion on the issue. That showing must be made as part of the offer of proof as a prerequisite to obtaining an evidentiary hearing to determine the admissibility of evidence of the victim's prior sexual conduct.” State v. Manini, 38 Conn.App. 100, 114, 659 A.2d 196, cert. denied, 234 Conn. 920, 661 A.2d 99 (1995).

“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.” (Citation omitted; internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 771, 991 A.2d 1086 (2010). The offer of proof can be made by the testimony of a witness in the absence of the jury or by a good faith representation by counsel of what the witness would say if questioned. See C. Tait & E. Prescott, Connecticut Evidence (4th Ed.2008) § 1.29.4, p. 77.

In the initial motion and during argument, the defendant proffered documentary and testimonial evidence to support his position that A and K had engaged in sexual intercourse three days prior to the incident for which he was charged and that his revelation of this inappropriate sexual contact between the siblings prompted A and B to fabricate the story that the defendant had sexually assaulted A so that they could hide the accusations.8 In the motion, he identified a medical report and expert witness disclosure that indicated that A's injuries had occurred within three days of the incident, and a social worker's report which stated that B had informed her that the defendant had made such accusations, as well as making the representation that a surveillance camera had been purchased by B to monitor her children's behavior. During argument on the motion, defense counsel represented that the defendant would testify that he caught A and K having “sexual relations.” This proffer was sufficient to satisfy the first step in the two step process and necessitated the evidentiary hearing, which the court held.

Having established that the offer of proof was sufficient to entitle the defendant to a hearing, I nevertheless disagree with the majority's conclusion that the defendant's proposed testimony, submitted during the hearing, or the proposed questioning of A, K and B were both relevant and more probative than prejudicial.9 The purpose of a hearing pursuant to the rape shield statute “is to assist the trial court in making its determination regarding whether the evidence is relevant to the case and falls within one of the statute's exceptions, and whether its probative value outweighs the prejudicial impact on the victim.” State v. Smith, supra, 280 Conn. at 298, 907 A.2d 73. Moreover, “a clear statement of the defendant's theory of relevance is all important in determining whether the evidence is offered for a permissible purpose.” (Internal quotation marks omitted.) State v. Cecil J., 291 Conn. 813, 825, 970 A.2d 710 (2009).

I take issue with the majority's analysis primarily for two reasons. First, in making its determination of the admissibility of the defendant's testimony pursuant to the rape shield statute, the majority does not limit its analysis to testimony that would be admissible under the rules of evidence. The purpose of the rape shield statute is to prohibit the introduction of otherwise admissible evidence of the sexual conduct of a victim because it is highly inflammatory. Rather than create an alternate vehicle for admissibility, therefore, the rape shield statute imposes an additional bar to the admission of proposed evidence that falls under its purview. The rape shield statute does not suspend the rules of evidence to allow, for example, inadmissible hearsay, just because such evidence would be relevant or more probative than prejudicial to an issue at trial. Nevertheless, the majority implicitly does just that.

In its recitation of the defendant's relevant testimony, the majority cites his statements that “he had observed A and K in an awkward position, had seen them inappropriately touching, had heard ‘moaning’ and other sounds on the cell phone recording suggesting they were having sexual intercourse, had been told by A that she and K were ‘having sex’ while the defendant was in the shower, and, after informing B about what he had seen and heard, had accompanied B to a department store where she purchased a video surveillance camera.”10 The majority fails to acknowledge, although argued by the parties and noted by the court in its ruling, that A's alleged admission that she and K had been having sexual intercourse is inadmissible hearsay.11 Indeed, the majority relies on this inadmissible hearsay to determine that the proposed testimony was both relevant and more probative than prejudicial.12 Such inadmissible hearsay should not be considered by the trial court or this court in determining whether the defendant proffered any admissible evidence of the prior sexual conduct of A pursuant to the rape shield statute. The only evidence that should be considered by a court when determining the admissibility of the prior sexual conduct of a victim pursuant to the rape shield statute is evidence that also would be admissible pursuant to the rules of evidence.13

My second issue with the majority opinion is that it combines, as did the defendant, all of the testimony as it pertains to both exceptions when determining admissibility pursuant to the rape shield statute, rather than considering only the evidence that was applicable to each exception. By doing so, the majority is able to conclude that all of the evidence is relevant and more probative than prejudicial. If, however, one looks at the proposed testimony that would have supported each exception separately, after determining which parts of the proposed testimony would have been admissible pursuant to the rules of evidence, the correct conclusion is that the proposed testimony for each exception was inadmissible under the rape shield statute, albeit for different reasons and, thus, any questioning related to those exceptions was also inadmissible.

Careful scrutiny of the record reveals that there was no relevant evidence submitted to support the defendant's contention that K was the source of A's injuries. In his offer of proof, the defendant proffered that the source of A's injuries was the alleged sexual intercourse that A had engaged in with K three days prior to the defendant's arrest, while he had been showering. Thus, he was required to provide relevant evidence that A and K had engaged in sexual intercourse, not at some undefined time, but during the time that he was in the shower, three days prior to his alleged assault of A. The defendant's testimony pertinent to this exception was that prior to taking his shower, the defendant witnessed A and K in an awkward position and that there was inappropriate touching. While the defendant was showering, he recorded sounds on his cell phone. After his shower, the defendant listened to the recording and heard sounds that he characterized as moaning and sex.

These statements are not relevant evidence, inferential or otherwise, that A and K had actually engaged in sexual intercourse while the defendant was showering. At most, these “facts” support the defendant's position that he merely believed that A and K had engaged in sexual intercourse. “Inferences to be drawn from the facts proved must be reasonable and logical, and the conclusions based on them must not be the result of speculation and conjecture.” Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959). Contrary to what defense counsel proffered during argument on the motion, the defendant did not testify that he saw A and K engaged in sexual intercourse or any act resembling sexual intercourse in the time period prior to or after his shower nor did he describe their appearance, clothing or mannerisms after taking his shower. Moreover, there was no evidence other than the defendant's statements of his conclusions that the purported sounds on the cell phone recording were the sounds of A and K having sexual intercourse. Thus, based on the facts presented during his testimony, any conclusion that A and K were engaged in sexual intercourse while the defendant was showering would be the result of speculation and conjecture.

Moreover, at no point in the proceedings did defense counsel ever proffer that A would testify that she and K had been engaged in inappropriate touching that day, that she had engaged in sexual intercourse that day with K, that she had told the defendant that she and K had engaged in sexual intercourse on that day or that she had heard the cell phone recording. In fact, Jacobson implicitly admitted that he did not know what A's testimony would be and, when presented with the opportunity to present additional witnesses, declined to do so. Because the defendant did not proffer or submit any evidence to corroborate the defendant's testimony regarding the sounds on the cell phone recordings and no other witness testified, the court essentially was left with only the defendant's unsubstantiated beliefs that he had heard noises he associated with sex on his cell phone and that A and K had engaged in sexual intercourse while he was in the shower. Such beliefs were not relevant to the issue of the source of A's injuries, as they did not tend to prove whether A actually had sexual intercourse with K while the defendant was in the shower. See State v. Brauneis, 84 Conn. 222, 233, 79 A. 70 (1911) (defendant's testimony about his belief regarding complainant's behavior properly excluded, as his belief did not tend to prove complainant engaged in behavior);14 see also State v. Williams, 20 Conn.App. 263, 269–70, 565 A.2d 1365 (1989) (court properly excluded questions of whether victim had been sexually active during three days prior to incident where victim and mother testified during hearing that victim was not sexually active but defendant testified that he believed that she was). Although it is true that § 54–86f “encompasses inferential as well as direct evidence of sexual conduct”; State v. Rinaldi, 220 Conn. 345, 354, 599 A.2d 1 (1991); a defendant's belief about the sexual conduct of a victim does not tend to prove that conduct, and is not, therefore, relevant. Compare id., at 354–55, 599 A.2d 1 (witness' proposed testimony regarding admissible statements complainant had made and her appearance after exiting woods with third person constitute inferential evidence of sexual conduct); see also State v. Jones, 8 Conn.App. 44, 48, 510 A.2d 467 (1986) (“ § 54–86f limits proof to evidence of sexual conduct, which phraseology ․ permit[s] only specific instances of conduct and prohibit[s] all proof of reputation or personal opinion of the victim's sexual conduct ” [emphasis added; internal quotation marks omitted] ).

In addition, none of the documentary evidence relied on by the defendant in his offer of proof actually suggested that A and K had engaged in sexual intercourse at any time or that A would disclose that she and K had sexual intercourse.15 The social worker's report noted that A denied the defendant's allegations and referenced police reports that stated that there was no evidence of A and K being sexually involved. Thus, even if one could conclude that the defendant's testimony was relevant to his claim that A and K had sexual intercourse while he was in the shower three days prior to his arrest, given the remainder of the evidence that was before the court, these unfounded allegations would have been more prejudicial than probative, and his testimony was simply not sufficient to overcome “the presumption, inherent in § 54–86f, that evidence of the sexual conduct of a rape victim is inadmissible․” State v. Smith, supra, 280 Conn. at 296, 907 A.2d 73. Thus, the court did not abuse its discretion in denying the defendant's initial motion under this exception.

With respect to the fourth exception to the rape shield statute, the defendant's theory was that A and B fabricated the allegations against him after he informed them of his discovery that A and K were having sexual intercourse in order to cover up his discovery. The defendant's testimony pertinent to this exception was that he told A and B about his suspicions and that after B had a conversation with A, the defendant and B purchased a video camera to monitor A and K. Although such testimony was relevant to a portion of his theory, that he suspected A and K were having sexual intercourse and that he informed A and B of his suspicions, such evidence was more prejudicial than probative because the rest of his theory was contradicted by the record. Thus, any testimony by the defendant, A, or B on this issue was properly deemed inadmissible.

The contradictory evidence in the record significantly weakens the probative value of the defendant's proposed testimony. As I previously concluded, there was no admissible evidence that A and K had engaged in sexual intercourse three days prior to the defendant's arrest. The state also represented during argument that A had always denied having sexual intercourse with K. Moreover, the social worker's report revealed that both A and B had told the social worker that the defendant had made these accusations about A and K having sexual intercourse, and that B had told police officers about the defendant's allegations. If the purpose of accusing the defendant of sexual assault was to cover up the defendant's alleged discovery of A and K having sexual intercourse, it is unlikely that A and B would have repeated his accusations to both police officers and a social worker. See State v. Kulmac, 230 Conn. 43, 56, 644 A.2d 887 (1994) (concluding that court did not violate defendant's right to confront witnesses by excluding evidence of prior sexual conduct when record did not support defendant's claim that victims falsely accused him of assaults perpetrated by others in order to shield others from harm where victims disclosed other perpetrators to police, and other perpetrators had been convicted at time of defendant's trial). Given the fact that there was no admissible evidence of A and K engaging in sexual intercourse, and that there was evidence indicating that A and B were not attempting to cover up the defendant's allegations, the defendant's proposed testimony about his alleged discovery and any questions to A and B about his allegations were more prejudicial than probative.16 Thus, the court did not abuse its discretion in denying the initial motion pursuant to this exception.17

II

The defendant's second offer of proof occurred during the cross-examination of B, who was the second witness to testify. During the cross-examination of B, Grogins requested that the jury and B be excused so that she could make an offer of proof. When the court asked what the offer of proof was, Grogins stated: “I want to ask about [the defendant] being concerned about the behavior of the children. I want to ask about the fact that [B] was also concerned about the behavior of her children, without getting into why. And I want to ask about the fact that [B] was so concerned that she went out and bought a video surveillance camera, so she could monitor her children's behavior.” When the court asked how such questioning was relevant to B's testimony about what she had seen on the night of the incident, Grogins responded that it implicated her motive, bias and interest to testify against the defendant for making claims about her children. The state then argued that those questions were irrelevant to B's testimony about what she claimed to have witnessed and the court's prior ruling barred the proposed questions. The court ruled that the line of questioning was not relevant.

The court's ruling was proper because the defendant did not make a sufficient offer of proof that warranted a different result. In contrast to his initial offer of proof, when the defendant identified what the proposed testimony would be as well as documentary evidence to support his position, at the second offer of proof, Grog-ins did not provide the court with anything beyond what had been presented at the hearing. She did not proffer what B's testimony would be. Even though B was on the stand when Grogins asked to make her offer of proof, she never requested a hearing so that B could testify outside the presence of the jury. Rather than providing any additional evidence to support the defendant's proffer, Grogins only requested that the court allow her to ask B questions in the presence of the jury. Because the defendant's proffer did not “inform the trial judge of the specific nature of the evidence so that the court [could] judge its admissibility” or “contain specific evidence rather than vague assertions and sheer speculation”; (internal quotation marks omitted) State v. Martinez, supra, 295 Conn. at 771, 991 A.2d 1086; the court did not abuse its discretion in denying the defendant's request to question B with respect to the defendant's allegations of sexual intercourse between A and K.

III

The final offer of proof took place after the direct examination of A, the third witness to testify. Before the cross-examination of A began, on March 3, 2008, the court addressed the defendant's motion to reconsider its rulings with respect to all of his claims initially brought by way of his first motion.18 The defendant requested permission to testify about his observations of “inappropriate sexual behavior between [A] and [K] within three days of the accusation made against him,” about the recorded “sounds of interactions between [A] and [K] three days before the accusation in this case that were consistent with the sound of persons engaging in sexual intercourse,” about his confrontation of “[A] with the recording and [A] admit[ting] to [the defendant] that she had just had sexual intercourse with [K] and had also done so in the past,” and about him telling “[B] about the clear admission of sexual intercourse.” The defendant also requested permission to recall B so that she could be questioned about the defendant's statements to her regarding his confrontation with A and her subsequent actions in arranging for surveillance of the children. He asked to call K and question him about being the source of A's injuries, about his being alone with A during the three days prior to the alleged assault and about what K saw and heard during the date of the alleged assault. The defendant asked for permission to question A about having sexual intercourse with K, about being alone with K during the three days prior to the alleged assault, about her knowledge that the defendant had made accusations that she had had sexual intercourse with K, and about her state of mind as a motive to fabricate because she did not want the defendant to continue making such accusations. Finally, the defendant requested permission to question A and B about A's failure to disclose that she had engaged in sexual intercourse with her oldest brother two years prior, “as evidence of a pattern of covering up interfamilial incest,” and about B's request that there be no prosecution of the oldest brother once the conduct was disclosed.

Additionally, in this motion to reconsider, the defendant asserted that his “whole theory of defense is that [A] and [B] contrived the accusation in this case to cover up [the defendant's] discovery that [A] was having sexual intercourse with [K].” He maintained that evidence supporting this contention was that A had covered up being sexually assaulted by a different brother two years prior and that B had chosen to waive prosecution. The defendant also averred that he would present this evidence through his own testimony and the questioning of A, B and K.

During oral argument, Grogins contended that the questioning of the witnesses and the testimony of the defendant were necessary to show that someone else had committed the crime. She reiterated that the defendant's claim was that “[B's and A's] allegations against the defendant ․ [were] fabricated to cover up the ․ ongoing incestual relationship that was taking place with [K]․” The court responded: “Let's have the argument. I've heard the argument and I've heard the basis for that from [the defendant] and the alleged tape and the alleged recording.” When defense counsel asked if the court's ruling barred the defendant from calling K to question him about these issues, the court replied, “I'm not barring you from calling anybody. You can call anybody that you like. Testimony in this courtroom must be relevant to the issues at hand, material․ I've heard this issue in the past ․ and I want you to place your theory of relevance clearly on this record. I have not heard anything that would support your position that the rape shield statute should afford this court to allow that testimony at this time.”

The state also responded: “As far as [this] motion goes, we've heard everything ․ I don't think there's anything new. In fact, we're also now wanting to question [A] about hearsay, about what the defendant said to her, what the defendant thought, and all this other stuff. It's not admissible, Your Honor․ This is just the defendant introducing self-serving hearsay in order to shift the focus․ I don't believe any of this is admissible.”

The court then denied the motion, stating: “There is no evidence coming ․ into this court regarding any incestual relationships with [A] and [K], none․ Now, if you want to bring [K] in to make an offer of proof to preserve it for the appellate record ․ that's up to you․ What I've heard does not support in any form or fashion that evidence coming into the courtroom of law as it has any bearing on the issue here at hand, nothing․ [T]hat's the rape shield statute and the reason that the legislature has decided to implement the statute. It's clearly a wholesale assault ․ [and] it has no bearing. If it had some relevance, I would allow it. I would․ All that is ․ speculation ․ and hearsay and not admissible—even under most evidentiary rulings it wouldn't be admissible.” (Emphasis added.)

Grogins then made a record of the questions that she would have asked K and A.19 With respect to the proposed questions for A, the state argued that “[e]very question that was just asked is self-serving hearsay aside from the last one. Everything that was just asked is self-serving hearsay on behalf of the defendant. She can't testify as to what the defendant may have said at some other time. There's no exception that fits this, Your Honor. I'm asking that all of [it] be denied.” The state also clarified that the court's ruling did not prohibit the defendant from calling anyone as a witness. After defense counsel responded that the questions set forth were not hearsay because they were asking for A's response, the court ruled. It stated: “None of those questions, if proffered in that manner, should be asked in court in front of the jury to this person. None of them. They suggest, at least direct, the attention of the [jury] to areas that this court finds immaterial, irrelevant, confusing, and in no way that support any theory of relevance I have heard from the defense. The rape shield statute protects ․ clearly, those issues you wish to raise. Bias, interest and motive is another issue. I have not heard those—if those questions were asked for bias, interest and motive․ [H]ere are the facts. Something happened in that room. The players, as I see it, are three people․ Now, if something bears on that, I'll hear it and it will be allowed. I haven't heard any of those questions that bear on that. [B], if you believe her, [A], if they believe her, the person in that room was one ․ male person and identified as your client, period. That's it. Now, whether somebody else was there before [B] got there, I don't know, it's not in evidence, whether somebody did something else before [B] got there on that day, I don't know, that would impact upon whatever issue you claim you're being prohibited from offering, and it is not. Those questions are not to be offered and will not be in this trial on the charge of sexual assault in the first degree as it relates to the evidence I have heard and know of so far, it will not be.”

After dealing with other matters, the court returned to the motion one last time. Jacobson reiterated that the defendant's position was that K, rather than the defendant, had caused the injuries to A and that A and B had fabricated the allegations against the defendant to cover up the sexual relationship between A and K. The court repeated its ruling that the evidence was not relevant. It stated that the evidence was immaterial, irrelevant, had no bearing on the trial and would not be allowed.

In his final offer of proof, the defendant failed, once again, to proffer any evidence that would have supported his contention that A and K had been engaged in sexual intercourse or that A and B were attempting to cover up the defendant's accusations. The motion asked to question A, B and K about the alleged events surrounding the defendant's accusations, but did not proffer what the witnesses' testimony would be. During oral argument, Grogins made a record of what questions she would have asked the witnesses in the presence of the jury, but never once disclosed what their testimony would be or asked for a hearing so that the court could evaluate their proposed testimony, even after the court explicitly indicated that K could testify at a hearing outside the presence of the jury.20 Faced with the absence of any evidence to support the defendant's theory of relevance, the court correctly denied his motion to reconsider.

In short, after the court denied his initial motion, while leaving available to the defendant the opportunity to make additional offers of proof as the trial progressed, the defendant did not provide the court with any evidence, potentially relevant or not, that would have necessitated a change in its ruling. Even though the defendant was given multiple opportunities to provide relevant evidence to support his theory, including specifically stating that the defendant could have a hearing to submit the proposed testimony of K, he failed to do so. Moreover, the defendant did not renew his request during his case-in-chief. Although the court improperly focused on the Rolon factors when articulating its initial decision, when considering the court's ruling with every reasonable presumption in its favor, I cannot conclude that the court abused its discretion in denying the defendant's motions because, at its essence, the court found that the defendant had not presented any admissible evidence to support his theory, only self-serving hearsay and conjecture. Although the rape shield statute does permit the introduction of evidence of a victim's prior sexual conduct, including reasonable inferences drawn from facts, under limited circumstances, it does not allow a defendant to inject speculation and innuendo into a trial.

The majority opinion renders meaningless the requirement of showing evidence of a victim's prior sexual conduct and runs contrary to the purposes and policies advanced by the rape shield statute. See State v. Christiano, 228 Conn. 456, 472, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S.Ct. 83, 130 L.Ed.2d 36 (1994). Before the decision of the majority in the present case, defendants were required to provide evidence in the form of testimony from witnesses or documentation to overcome the burden imposed on them by the rape shield statute. A determination of whether the court had abused its discretion had been based on more than a defendant's self-serving statement and proposed questions to the witnesses. See State v. Smith, supra, 280 Conn. at 293–95, 907 A.2d 73 (defendant proffered DNA report and substance of expert's testimony in written offer of proof and proffered proposed expert testimony during hearing); State v. Ritrovato, 280 Conn. 36, 48–49, 905 A.2d 1079 (2006) (defendant proffered proposed testimony of two witnesses during hearing); State v. DeJesus, 270 Conn. 826, 833, 856 A.2d 345 (2004) (defendant proffered police report and victim's proposed testimony during hearing held outside presence of jury); State v. Kulmac, supra, 230 Conn. at 51, 644 A.2d 887 (proffered written statement of victim); State v. Rinaldi, supra, 220 Conn. at 351, 599 A.2d 1 (defendant proffered proposed testimony of complainant's friend at hearing on motion); State v. Williams, supra, 20 Conn.App. at 269, 565 A.2d 1365 (defendant proffered proposed testimony of victim and mother).

Because of the holding of the majority opinion, in order to overcome the heavy presumption of the rape shield statute which “was enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material”; (internal quotation marks omitted) State v. Ritrovato, supra, 280 Conn. at 53, 905 A.2d 1079; all a defendant need do is state that he believes that the victim had sexual intercourse with another person and that she made statements to him confirming this belief, without submitting or even proffering any evidence that the prior sexual conduct or the victim's alleged admission actually took place. A defendant can now concoct an unverified narrative, knowing or, as in the present case, having a good faith belief, that the victim will deny the unsubstantiated allegations.21 He can question the victim about his groundless assertions, thus, allowing the jury to speculate about the sexual propensity of the victim. Moreover, even if the victim denies the allegations during examination, the defendant will be able to use the mere introduction of the topic in closing argument to attack inappropriately the credibility of the victim. This is precisely what the rape shield statute intended to prevent.

The majority attempts to soften its decision by concluding that the testimony of A, B and K regarding the prior sexual conduct of A can be elicited only during the defendant's case-in-chief after a proper foundation has been laid. Ostensibly, that foundation would be laid by the defendant's testimony before the jury at trial. Moreover, by allowing this defendant to question in front of the jury A, B, and K based on his own self-serving statements that are primarily based on inadmissible hearsay and unsubstantiated beliefs, we are diluting the defendant's burden under the rape shield statute to the detriment of all victims of sexual assault. “Requiring, as the statute does, that the strong policies ․ be overcome only by evidence which does not have the inherent infirmity of reputation or lay opinion evidence ․ can hardly be viewed as violating [a] defendant's constitutional rights to confront the victim or to present a defense.” (Emphasis added.) State v. Jones, supra, 8 Conn.App. at 48, 510 A.2d 467. This result cannot be what the legislature envisioned when it enacted the statute. Accordingly, I dissent.

ZARELLA, J.

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