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STATE OF CONNECTICUT v. ROBERTO ACOSTA
(AC 38003)
Lavine, Alvord and Sullivan, Js.
Argued December 3, 2015—officially released February 2, 2016
(Appeal from Superior Court, judicial district of
Danbury, Pavia, J.)
Daniel J. Foster, assigned counsel, for the appel-
lant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom were Stephen J. Sedensky III, state’s
attorney, and, on the brief, Deborah P. Mabbett, senior
assistant state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Roberto Acosta, 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), one
count of risk of injury to a child in violation of General
Statutes § 53-21 (a) (1), and one count of risk of injury
to a child in violation of § 53-21 (a) (2). The charges
arose from an incident involving the defendant’s niece,
A,1 that occurred in 2009. On appeal, the defendant
claims that the court improperly allowed the state to
present evidence of uncharged misconduct. We affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts. One afternoon in the spring of 2009, A, who was
twelve years old and in sixth grade, had returned from
school and was watching television at her home in
Danbury. She lived with her parents and older brother,
but she was alone at the time. Her parents were at work
and were not expected until 6 or 7 p.m.
When A’s dog started barking, she looked outside
and saw her uncle, the defendant, approaching the front
door. He had not previously visited their home, and he
did not live in the area. She opened the door and greeted
him with a hug and a kiss because ‘‘he was family.’’
After chatting for a bit, A took the defendant for a tour
of the house. He asked where her parents were, and
she told him that they would not be home until 6 p.m.
The tour concluded in her bedroom, where she pro-
ceeded to show the defendant her snow globe collec-
tion. They continued to talk about the family, generally
‘‘catching up,’’ when he told her that she looked beauti-
ful. He then sat down on her bed and told her to do
the same. The defendant began to rub her leg, shoulder
and arms, again repeating that she looked beautiful.
A was beginning to feel uncomfortable with the situa-
tion on her bed when the defendant instructed her to
remove her shirt. She complied, and he unhooked her
bra and started rubbing her breasts. At that point, he
took her hand and placed it on his genital area on the
outside of his pants. He told her to get undressed while
he removed his own clothing. A ‘‘just followed what he
said’’ because she did not know if he would hurt her.
The defendant spread her legs and engaged in penile-
vaginal intercourse with her. Approximately fifteen
minutes later, after again asking what time her parents
would be home, the defendant got dressed, told her ‘‘to
tell [her] parents that he said ‘hi,’ ’’ and then left the
house. A was ‘‘confused’’ and ‘‘embarrass[ed],’’ and
decided that she would not tell anyone about what had
happened between her and the defendant.
In January, 2012, while A was on a trip to New York
City with two of her close friends, the girls decided to
play a game of ‘‘confessions.’’ A knew she could trust
her girlfriends and told them that her uncle, the defen-
dant, had sexually assaulted her. They all were upset,
and A made her friends promise not to disclose the
incident to anyone. Approximately one week later, how-
ever, one of the girls reported the incident to her guid-
ance counselor at school, and A was asked to speak
with her guidance counselor and a social worker. After
she confirmed that she had been sexually assaulted by
the defendant, an investigation commenced, and the
defendant was arrested and charged with the three
crimes for which he was convicted. Following a trial,
the jury returned a verdict of guilty on all three counts
of the substitute long form information. The court
accepted the verdict and rendered judgment accord-
ingly. The defendant was sentenced to thirty years
incarceration, execution suspended after seventeen
years, followed by twenty-five years of probation with
various conditions. This appeal followed.
The following additional facts and procedural history
are necessary for the resolution of the defendant’s
claims on appeal. Prior to trial, the state filed a notice
of its intent to offer evidence of the defendant’s prior
misconduct involving three additional female family
members. The alleged incidents took place in 1990,
1997, and 2006, when the prepubescent girl family mem-
bers were between nine and ten years of age. On the
first day of trial, outside the presence of the jury, the
parties discussed the state’s request. Defense counsel
voiced his opposition to the proffered testimony with
respect to the 1990 and the 1997 incidents.2
With respect to the 1990 incident, the state indicated
that the young girl at issue was the defendant’s niece
and that the defendant began having sexual conversa-
tions with her when she was nine or ten years old.
Those inappropriate sexual conversations continued
for a few years. Defense counsel argued that the con-
duct was too remote in time and that there had been
no sexual contact, as had been alleged in the other
incidents. The court, after stating the legal standard for
the admission of prior uncharged sexual misconduct
set forth in State v. DeJesus, 288 Conn. 418, 476, 953
A.2d 45 (2008), ruled that ‘‘the time frame is too remote’’
and ‘‘the conduct itself is not sufficiently similar’’ to
the charged conduct in the present case. For that rea-
son, the court concluded: ‘‘[T]he court feels that it has
not met the relevancy standard. And, in turn, that to
admit it would simply be too prejudicial . . . .’’
With respect to the 1997 incident, the proffered evi-
dence was that the defendant grabbed the hand of J,
his nine year old niece, and placed it on his genital area.
Defense counsel argued: ‘‘1997 is distant, so we do
object, although you have an allegation of actual con-
tact. And I will admit that’s . . . as far as I’m con-
cerned, a much closer call. I’m not going to concede
that it should come in because I think on top of the
other one, it is prejudicial.’’ The court ruled that the
proffered evidence was relevant and that its probative
value outweighed the prejudicial effect from its
admission.3
At trial, following the testimony of A with respect to
the incident in this case, and C with respect to the 2006
incident, J was called as a state’s witness to testify about
the defendant’s prior misconduct in 1997. J testified that
her uncle, the defendant, sexually molested her when
she was nine years old. She testified that she and her
two brothers were at her grandmother’s house, where
they often visited and where the defendant would pay
them to do chores. The defendant sent the brothers
away ‘‘to do something,’’ and J remained in the kitchen
alone with the defendant. After her brothers left, the
defendant placed a long white tube sock around her
eyes and then grabbed her hand and placed it on his
genital area. Once J realized what it was, she yanked
her hand back and pulled the sock from her eyes. She
told the defendant that she was going to tell her parents
what had happened, and she ran from the kitchen.4
On appeal, it is the defendant’s claim that the testi-
mony of J, with respect to the incident in 1997, was
improperly allowed by the court because the prior
uncharged misconduct was ‘‘too remote in time and not
sufficiently similar to the charged misconduct.’’ Specifi-
cally, the defendant argues that our Supreme Court
has never affirmed the admission of prior misconduct
evidence that occurred more than ten years prior to
the charged misconduct. He further argues that
although this court affirmed the admission of prior mis-
conduct evidence that occurred twelve years prior to
the charged misconduct in one case; State v. Antonaras,
137 Conn. App. 703, 49 A.3d 783, cert. denied, 307 Conn.
936, 56 A.3d 716 (2012); that case was unique because
the charged and uncharged misconduct were ‘‘exqui-
sitely similar.’’5 The defendant claims that ‘‘[t]he
charged and uncharged misconduct at issue here are
not similar either in severity or in kind.’’
We begin with the applicable standard of review and
legal principles that govern our analysis of the defen-
dant’s claims. ‘‘We review the trial court’s decision to
admit evidence, if premised on a correct view of the
law . . . for an abuse of discretion. . . . We will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest
abuse of discretion. . . . In determining whether there
has been an abuse of discretion, the ultimate issue is
whether the court could reasonably conclude as it did.’’
(Citations omitted; internal quotation marks omitted.)
State v. Orr, 291 Conn. 642, 666–67, 969 A.2d 750 (2009).
‘‘[A]s a general rule, evidence of prior misconduct is
inadmissible to prove that a defendant is guilty of the
crime of which he is accused. . . . Nor can such evi-
dence be used to suggest that the defendant has a bad
character or a propensity for criminal behavior. . . .
[H]owever, evidence of prior misconduct may be admit-
ted when it is offered for a purpose other than to estab-
lish the defendant’s bad character or criminal
propensity. Among other things, prior misconduct evi-
dence may be admissible to prove intent, identity,
motive, malice or a common plan or scheme.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Jacobson, 283 Conn. 618, 630, 930 A.2d 628 (2007).
‘‘[P]ublic 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 propen-
sity to engage in aberrant and compulsive criminal sex-
ual behavior.’’ (Emphasis in original.) State v. DeJesus,
supra, 288 Conn. 470. That approach, however, ‘‘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. . . . First, evi-
dence of uncharged sexual misconduct is admissible
only if it is relevant to prove that the defendant had a
propensity or a tendency to engage in the type of aber-
rant and compulsive criminal sexual behavior with
which he or she is charged. . . . [E]vidence of
uncharged misconduct is relevant to prove that the
defendant had a propensity or a tendency to engage in
the crime charged only if it is: (1) . . . not too remote
in time; (2) . . . similar to the offense charged; and
(3) . . . committed upon persons similar to the prose-
cuting witness.’’ (Citation omitted; internal quotation
marks omitted.) Id., 472–73.
‘‘Second, evidence of uncharged misconduct is
admissible only if its probative value outweighs the
prejudicial effect that invariably flows from its admis-
sion.6 . . . In balancing the probative value of such
evidence against its prejudicial effect, however, trial
courts must be mindful of the purpose for which the
evidence is to be admitted, namely, to permit the jury
to consider a defendant’s prior bad acts in the area of
sexual abuse or child molestation for the purpose of
showing propensity. . . .
‘‘Lastly, to minimize the risk of undue prejudice to
the defendant, the admission of evidence of uncharged
sexual misconduct under the limited propensity excep-
tion adopted herein must be accompanied by an appro-
priate cautionary instruction to the jury.’’7 (Citations
omitted; footnote added; internal quotation marks omit-
ted.) Id., 473–74.
With these principles in mind, we address the defen-
dant’s claim that the 1997 incident was too remote in
time because there was a hiatus of twelve years between
the charged and uncharged misconduct. He urges this
court to adopt a ‘‘bright line rule’’ that would exclude
evidence of uncharged sexual misconduct that has
occurred more than ten years from the charged miscon-
duct. We decline to do so on the basis of controlling
Supreme Court precedent.
In determining the relevancy of proffered uncharged
sexual misconduct evidence under the three prongs set
forth in State v. DeJesus, supra, 288 Conn. 476, the
court’s inquiry ‘‘should focus upon each of the three
factors, as a single factor will rarely be dispositive.’’
State v. Romero, 269 Conn. 481, 498, 849 A.2d 760 (2004).
‘‘The remoteness in time of a prior incident is rarely,
standing alone, determinative of the admissibility of
such evidence; rather, it is one factor to be considered
by the trial court in making its decision.’’ State v. Kul-
mac, 230 Conn. 43, 62, 644 A.2d 887 (1994). Applying
these principles, our Supreme Court and this court have
concluded that proffered uncharged sexual misconduct
evidence was not too remote in time and was admissible
as relevant in the following cases: State v. Jacobson,
supra, 283 Conn. 632–33 (ten year gap not ‘‘insignifi-
cant’’ but not too remote); State v. Romero, supra, 498–
500 (nine year gap not too remote); State v. Kulmac,
supra, 62 (trial court did not abuse discretion in con-
cluding incident seven years prior to charged miscon-
duct was ‘‘sufficiently recent to have probative value’’);
State v. Antonaras, supra, 137 Conn. App. 716–17 (time
gap of between nine and twelve years between
uncharged and charged misconduct not too remote).
We cannot conclude that the trial court in the present
case abused its discretion in admitting evidence of prior
uncharged sexual misconduct that occurred twelve
years prior to the charged misconduct, particularly in
light of the two other prongs set forth in State v.
DeJesus, supra, 288 Conn. 476. The record reflects that
the evidence with respect to the challenged uncharged
misconduct and the charged misconduct demonstrated
that A and J were the prepubescent nieces of the defen-
dant. The testimony of C, the victim of the 2006 incident,
was admitted without objection and established that
she, too, was a prepubescent family member.8 Thus,
there was a significant similarity between the victims,
being family members9 and prepubescent girls at the
time of the sexual molestations.
Besides the similarity between the victims, the acts
of uncharged and charged misconduct were sufficiently
similar to be relevant. In making the determination of
whether the acts of charged and uncharged misconduct
are sufficiently similar, a trial court is guided by the
following principle: ‘‘[T]here is no bright line test for
determining whether alleged acts of uncharged sexual
misconduct and those involving the complaining wit-
ness in a sexual assault case are sufficiently similar.
What is clear, however, is that the law requires similar
acts of misconduct, not identical acts of misconduct.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Barry A., 145 Conn. App. 582, 593, 76 A.3d
211, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013).
In the present case, when alone with A and J, the
defendant took the hand of each girl and placed it on
the outside of his pants over his genital area. The ‘‘initial
stages of assault’’; id.; therefore, were similar. The
defendant argues, however, that the conduct toward J
was dissimilar because it was much less severe and did
not escalate to sexual intercourse. That argument is
unavailing. J testified that she pulled away from the
defendant, told him that she intended to tell her parents
what he had done, and then ran from the room. The
jury reasonably could have inferred that his misconduct
with J did not escalate because she rebuffed him. See
State v. Jacobson, supra, 283 Conn. 635; State v. McKen-
zie-Adams, 281 Conn. 486, 531, 915 A.2d 822, cert.
denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148
(2007), overruled in part on other grounds by State v.
Payne, 303 Conn. 538, 548, 34 A.3d 370 (2012); State v.
Antonaras, supra, 137 Conn. App. 721.
Accordingly, we cannot conclude that the court
abused its broad discretion in admitting the evidence
of misconduct involving J in 1997. The evidence was
relevant because it was not too remote in time from
the charged misconduct, and the evidence of uncharged
misconduct was sufficiently similar to the charged
abuse.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
2
Defense counsel did not object to the state’s proffer of evidence with
respect to the 2006 incident. The state’s notice provided: ‘‘On or about July,
2006 . . . when [the witness C] was approximately ten years of age, the
defendant pulled his penis out of his pants and told her [to] hold his penis
because it was like candy and to suck his penis.’’ C’s testimony at trial
corroborated the facts as alleged in the state’s proffer.
3
The court’s ruling was as follows: ‘‘[W]ith regard to proffers two [the
1997 incident] and three [the 2006 incident], the court does find that they
are not too remote in time, that the offenses are similar in nature in that
the complainant in this particular instance took the stand and testified to
the fact that the events in question with regard to this case are that the
defendant did take the complainant’s hand and place it on his privates. That
is the allegation contained within both proffers two and three. And, therefore
(1) it’s not too remote in time, and (2) that the offenses are similar, and
also that it was committed upon persons similar to the prosecuting witness,
that in this particular case the age of the victims in both of the two proffers
substantiate that it’s committed upon persons similar to the prosecuting
witness.
‘‘So the court finds that the relevancy standard has been met.
‘‘The second prong is that the evidence of uncharged misconduct is admis-
sible only if it is—if its probative value outweighs the prejudicial effect that
will flow from its admission.
‘‘And in this particular instance because the allegations are limited in
terms of the proffer, the state has indicated that they intend to be only
within the short and confined parameters that the proffer offer with regard
to its motion.
‘‘In addition, the proffered evidence is not more explicit than that which
is being introduced with regard to the complainant in this case so that, if
anything, it’s of less detail than the details that were offered by the complain-
ant in this case so that the jury would not be unduly swayed or impassioned
by allegations that were much more substantial or graphic from the allega-
tions in this particular case.
‘‘And so, based on those standards, the court will allow witnesses to
testify with regard to proffer number two and proffer number three in
accordance with the proffers that were submitted by the state.
‘‘I will also indicate that my understanding of the law is that the [Supreme
Court in DeJesus] is really, basically, mandating some type of instruction
that takes place at the time that these witnesses or testimony or evidence
is introduced. And so, to that end, I have written up an instruction, and I’m
going to ask that both sides review it so that you can indicate to the court—
you have the night to look at it . . . .’’
4
J did not disclose the incident to her parents at that time.
5
We note that although the trial court in Antonaras characterized the
charged and uncharged misconduct as ‘‘ ‘exquisitely similar’ ’’; State v. Anto-
naras, supra, 137 Conn. App. 713; this court did not adopt that particular
characterization when it determined that the twelve year gap was not too
remote under the circumstances of that case. Id., 716–17.
6
On appeal, the defendant does not challenge the court’s determination
that the probative value of the proffered evidence outweighed the prejudicial
effect from its admission.
7
The court gave limiting instructions with respect to the uncharged sexual
misconduct testimony, and the defendant has not challenged the adequacy
or timing of those limiting instructions.
8
On direct examination, C testified that the defendant was her uncle. On
cross-examination, she described him as her half-brother.
9
Family connections and familial types of relationships often have been
cited by our courts as being indicative of the similarity of victims when
comparing uncharged and charged sexual misconduct. See, e.g., State v.
Barry A., 145 Conn. App. 582, 593, 76 A.3d 211, cert. denied, 310 Conn. 936,
79 A.3d 889 (2013); State v. Hickey, 135 Conn. App. 532, 547, 43 A.3d 701,
cert. denied, 306 Conn. 901, 52 A.3d 728 (2012); State v. John G., 100 Conn.
App. 354, 364, 918 A.2d 986, cert. denied, 283 Conn. 902, 926 A.2d 670 (2007).