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STATE OF CONNECTICUT v. JOSEPH ABRAHAM
(AC 38863)
Sheldon, Bright and Beach, Js.
Syllabus
Convicted of the crimes of sexual assault in the second degree and risk of
injury to a child in connection with the alleged sexual abuse of his
minor stepdaughter, the defendant appealed to this court. During trial,
the trial court held a hearing on the admissibility of a video recording
of a second forensic interview of the victim by a clinical social worker,
and ruled that certain statements made during the second interview were
admissible pursuant to the medical diagnosis and treatment exception
to the hearsay rule because the primary purpose of that interview was
medical. On appeal, the defendant claimed, inter alia, that the trial court
applied an incorrect standard to determine whether that video recording
was admissible under the medical treatment exception to the hearsay
rule and that, even if the court applied the correct standard, the video
recording was not admissible pursuant to that exception because the
second interview was not reasonably pertinent to medical treatment.
Held that the trial court did not abuse its discretion in admitting the
video recording of the victim’s second forensic interview under the
medical treatment exception to the hearsay rule: although that court
applied an incorrect standard in ruling that the statements in the second
interview were admissible because the primary purpose of the interview
was medical, as the correct test is whether the interview had a medical
purpose from the victim’s perspective, its ruling was nevertheless sus-
tainable under the medical treatment exception, as the correct standard
is broader and more inclusive than the standard applied by the trial
court, and if the primary purpose of the interview was medical, then it
necessarily had a medical purpose; moreover, an objective observer
could have concluded that the second interview was reasonably perti-
nent to medical treatment under the circumstances here, where there
was testimony that the second interview was conducted because the
victim had disclosed additional information, it was recommended after
the interview that the victim continue therapy and undergo a medical
examination, the victim was asked whether she had any worries or
any problems with any part of her body and disclosed actual sexual
intercourse, and the interview was conducted at a hospital and resulted
in a report that was added to the victim’s medical file; furthermore, the
defendant’s claim that successive interviews should categorically fall
outside the medical treatment exception was unavailing, as a trial court
must determine whether the successive interviews are reasonably perti-
nent to obtaining medical treatment and this court could not conclude
as a matter of law that successive interviews are never reasonably
pertinent to medical treatment, and even if the trial court’s admission
of the second interview was improper, it did not substantially affect the
verdict given that the state’s case was supported by physical evidence,
including DNA analysis, and that the victim testified at trial as to all of
the abuse that she had disclosed in the second forensic interview.
Argued December 4, 2017—officially released May 8, 2018
Procedural History
Substitute information charging the defendant with
the crime of sexual assault in the second degree and
with three counts of the crime of risk of injury to a child,
brought to the Superior Court in the judicial district of
Hartford and tried to a jury before Mullarkey, J.; verdict
and judgment of guilty of sexual assault in the second
degree and of two counts of risk of injury to a child, from
which the defendant appealed to this court. Affirmed.
Glenn W. Falk, assigned counsel, with whom, on the
brief, was Robert M. Black, legal fellow, for the appel-
lant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Chris A. Pelosi, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
BEACH, J. The defendant, Joseph Abraham, was con-
victed, after a jury trial, of sexual assault in the second
degree in violation of General Statutes § 53a-71 (a) (1),
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (2), and risk of injury to a child in violation
of § 53-21 (a) (1).1 On appeal, the defendant claims that
the trial court improperly admitted a DVD recording of
the victim’s forensic interview. We disagree and affirm
the judgment of the trial court.
The following facts, found by the court or undisputed,
are relevant to this appeal. On February 27, 2013, the
minor victim2 reported to a social worker at her school
that she had been sexually abused by the defendant,
her stepfather.3 The social worker relayed these allega-
tions to the police and the Department of Children and
Families (department) and an investigation ensued. The
victim’s mother arranged for the victim to stay at the
house of a family friend for a few days and obtained a
temporary restraining order against the defendant. The
defendant then left the family home to stay elsewhere,
so that the victim could return. Meanwhile, the depart-
ment also directed the defendant not to stay in the same
house as the victim. The department then referred the
victim for a forensic interview.
On March 4, 2013, the victim was interviewed by Lisa
Murphy-Cipolla, the clinical services coordinator at the
Children’s Advocacy Center at Saint Francis Hospital
and Medical Center. During the interview, the victim
revealed that the defendant had ‘‘raped her,’’ but she
did not provide further detail. After the first interview,
Murphy-Cipolla recommended that the victim undergo
therapy and a medical examination. Later that month,
the department learned that the victim’s mother had
sought to modify the restraining order and that on one
occasion the defendant had picked the victim up from
school. Upon a visit to the family home, a department
worker found the defendant in a room across the hall
from the victim’s bedroom; the defendant left the house
upon the worker’s request. Following this incident, the
defendant and the victim’s mother went to the ombuds-
man’s office to file a complaint against the department
worker. While at the office, they revealed that the victim
had accompanied them there and was waiting in the
car. Upon learning this, the ombudsman’s office con-
tacted the department because of concern that the vic-
tim and the defendant had been together.
On April 17, 2013, the department obtained temporary
custody of the victim and subsequently placed her with
her maternal aunt, who later formally adopted the vic-
tim. While staying with her aunt, the victim began to
reveal additional information about the sexual abuse
she had suffered. The victim’s aunt reported this to the
department and the victim was referred for another
forensic interview. On June 11, 2013, the victim was
interviewed a second time by Murphy-Cipolla at the
Children’s Advocacy Center at Saint Francis Hospital
and Medical Center. During this interview, the victim
disclosed more extensive sexual abuse, including one
instance of sexual intercourse. Murphy-Cipolla recom-
mended continued therapy and a medical examination.
Both forensic interviews were video recorded on DVDs
and, after each interview, Murphy-Cipolla prepared a
report and added it to the victim’s medical file at Saint
Francis Hospital.
The defendant subsequently was arrested and
charged with sexual assault in the second degree, and
three counts of risk of injury to a child. At trial, the state
sought to introduce into evidence the DVD recording
of the second interview, and the defendant objected.
The court held a hearing on the admissibility of the
DVD, at which the state argued that the interview was
admissible pursuant to § 8-3 (5) of the Connecticut Code
of Evidence—the medical treatment exception to the
hearsay rule.4 The state presented the testimony of Mur-
phy-Cipolla and other witnesses. Murphy-Cipolla testi-
fied that the ‘‘primary purpose’’ of forensic interviews
was to ‘‘elicit clear and accurate information . . . to
minimize any additional trauma to the child and to make
the appropriate recommendations for mental health
and/or a medical exam.’’ She testified further that foren-
sic interviews were conducted upon referrals ‘‘primarily
from the department . . . [but also] from the emer-
gency department, pediatricians, police and, occasion-
ally, a therapist.’’ Finally, Murphy-Cipolla testified that
forensic interviews were typically observed from
behind a one-way mirror by police and/or department
officials. She explained that toward the end of an inter-
view, she typically conferred with the observers to
ensure ‘‘that everybody has heard the same thing and
see if [there are] any additional questions or anything
that needs to be clarified.’’ The defendant objected to
the admission of the second interview, arguing that it
‘‘was geared [toward the] investigation of a criminal
case and wasn’t for the primary purpose of obtaining
medical treatment.’’
In its oral ruling, the trial court noted that ‘‘there is
evidence that the [victim’s] counseling, [which] she was
getting from the social worker at her middle school,
was stopped. [The victim’s] [m]other tried to put the
defendant back on the [list of persons authorized to
pick the victim up from school], [the] defendant was
in the house on the date of the home visit by the [depart-
ment] worker, which was subsequent to the issuance
of the temporary restraining order. As far as we can
tell . . . the temporary restraining order that was pro-
tecting the [victim] in the case was vacated or dismissed
at the mother’s insistence. The mother, along with the
defendant, subsequent to the April 12, 2013 finding of
the defendant hiding in the bedroom upstairs, brought
the victim, along with the both of them, to the ombuds-
man to make a complaint against the social worker.
There had been additional disclosures that were made
to [the victim’s] aunt, now her adopted mother, and
while there had been arrangements made for the begin-
ning of counseling at the Klingberg Clinic, it had not
begun yet. Under those circumstances, the department
. . . requested that there be a second forensic
interview.
‘‘It is [the] court’s opinion and finding that that was
primarily for medical purposes, particularly additional
counseling, particularly to find out if there had been
any additional assaults against [the victim] during the
period of time that had elapsed between the initial com-
plaint and the number of contacts that the defendant
had with her. Having watched the second DVD, although
neither . . . Murphy-Cipolla nor Detective [Craig]
Browning remembers exactly who asked what ques-
tions when there was a break taken, the break that was
taken in the forensic interview [on] June 11, 2013, was
clearly marked when . . . Murphy-Cipolla came back.
She had additional questions for the [victim], particu-
larly using the standard anatomical form and asking
her about what parts of her body were touched by what
parts of [the defendant’s] body, asking about positions
and asking about addresses and occurrences. That may
be medical, but it’s also investigatory, and I think in a
cautious ruling that part of the DVD will be excluded
and not shown to the jury. The first part . . . is medi-
cal, particularly in the circumstance [where] the defen-
dant had additional contact with the [victim] and where
her mental health counseling, as much as she got at
[school], had been cancelled by her mother.’’ The court
then admitted the DVD of the second interview into
evidence but excluded the portion of the interview sub-
sequent to Murphy-Cipolla’s discussion with the observ-
ers. The defendant thereafter introduced into evidence
a section of the DVD of the first interview without
objection from the state.
On appeal, the defendant argues that the trial court
applied an incorrect standard to determine whether the
second DVD was admissible under the medical treat-
ment exception. He claims, however, that even had the
court applied the correct standard, the second interview
was not admissible pursuant to the medical treatment
exception to the hearsay rule. Specifically, the defen-
dant argues that the interview was not reasonably perti-
nent to medical treatment because it was the victim’s
second forensic interview and, thus, its purpose was
more investigatory and less medical than that of the
first interview. Consequently, the defendant claims, any
relationship the second interview bore to medical treat-
ment was ‘‘merely incidental.’’ In making this argument,
the defendant urges this court to consider the rationale
behind the medical treatment exception: that the declar-
ant is motivated to tell the truth when seeking medical
treatment. If, however, the declarant is simply reporting
to an investigator, that motivation evaporates.
The defendant also contends that for reasons of pol-
icy, the medical treatment exception should apply only
to forensic interviews that ‘‘truly are pertinent to medi-
cal diagnosis and treatment’’ and never, barring special
circumstances, to successive interviews. He argues that
admitting subsequent interviews under the exception
would ‘‘risk making the very concept of the hearsay
rules obsolete’’ because the state could ‘‘repeatedly
refer a complaining witness for interviews’’ until ‘‘[it]
get[s] a suitably compelling version of the story.’’
Finally, the defendant argues that the trial court’s
improper admission of the second interview was harm-
ful because it bolstered the victim’s credibility.
The state agrees that the trial court applied an incor-
rect standard for the medical treatment exception but
argues that the second DVD, nevertheless, was admissi-
ble under the correct standard.5 The court ruled that
the statements made during the second interview were
admissible because the primary purpose of the inter-
view was medical. As we conclude in this opinion, the
correct test is whether the interview had a medical
purpose from the victim’s perspective. Concluding as
we do, that it did have such a purpose, we hold that
the victim’s statements made during that interview were
admissible under the medical treatment exception.
‘‘We begin our analysis of the defendant’s claim by
setting forth the standard of review and relevant legal
principles. To the extent [that] a trial court’s admission
of evidence is based on an interpretation of the Code
of Evidence, our standard of review is plenary. For
example, whether a challenged statement properly may
be classified as hearsay and whether a hearsay excep-
tion properly is identified are legal questions demanding
plenary review. . . . We review the trial court’s deci-
sion to admit evidence, if premised on a correct view
of the law, however, for an abuse of discretion. . . .
In other words, only after a trial court has made the
legal determination that a particular statement is or is
not hearsay, or is subject to a hearsay exception, is it
vested with the discretion to admit or to bar the evi-
dence based upon relevancy, prejudice, or other legally
appropriate grounds related to the rule of evidence
under which admission is being sought.’’ (Internal quo-
tation marks omitted.) State v. Griswold, 160 Conn.
App. 528, 536, 127 A.3d 189, cert. denied, 320 Conn. 907,
128 A.3d 952 (2015).
‘‘The legal principles relating to the medical treatment
exception are well settled. Admissibility of out-of-court
statements made by a patient to a medical care provider
depends on whether the statements were made for the
purposes of obtaining medical diagnosis or treatment
. . . and on whether the declarant’s statements reason-
ably were related to achieving those ends. . . . The
term ‘medical’ encompasses psychological as well as
somatic illnesses and conditions. . . . Furthermore,
statements made by a sexual assault complainant to a
social worker may fall within the exception if the social
worker is found to have been acting within the chain
of medical care.’’ (Citations omitted.) State v. Telford,
108 Conn. App. 435, 440, 948 A.2d 350, cert. denied, 289
Conn. 905, 957 A.2d 875 (2008).
‘‘[S]tatements may be reasonably pertinent . . . to
obtaining medical diagnosis or treatment even when
that was not the primary purpose of the inquiry that
prompted them, or the principal motivation behind their
expression.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) State v. Griswold,
supra, 160 Conn. App. 552–53. ‘‘Although [t]he medical
treatment exception to the hearsay rule requires that
the statements be both pertinent to treatment and moti-
vated by a desire for treatment . . . in cases involving
juveniles, [we] have permitted this requirement to be
satisfied inferentially.’’ (Internal quotation marks omit-
ted.) Id., 556; see also State v. Telford, supra, 108 Conn.
App. 441–42.6
In Telford, this court concluded that the victim’s testi-
mony that she had felt ‘‘upset,’’ ‘‘mad,’’ and ‘‘scared’’ as
a result of sexual abuse, and that she had discussed
the abuse with someone at a hospital, was sufficient
to permit an inference that the purpose of her state-
ments at her forensic interview had been to obtain
medical treatment. State v. Telford, supra, 108 Conn.
App. 443. Similarly, in State v. Donald M., 113 Conn.
App. 63, 71, 966 A.2d 266, cert. denied, 291 Conn. 910,
969 A.2d 174 (2009), this court held that a medical
purpose could reasonably be inferred where the victim
did not recall the purpose of the interview but the inter-
viewer testified to informing the victim that she would
meet with someone at the hospital to determine
whether she needed therapy or other medical
treatment.
In Griswold, this court concluded that the forensic
interviews in that case were reasonably pertinent to
medical treatment because the interviewers testified
that ‘‘the purpose of their questions was to assist them in
recommending medical examinations or mental health
treatment’’ and that they normally inquired whether the
victims had ‘‘any concerns about their bodies.’’ State
v. Griswold, supra, 160 Conn. App. 557. Although we
observed in Griswold that ‘‘the primary purpose of
many of [the] questions appear[ed] to be directed
toward assisting law enforcement,’’ the interviews
were, nonetheless, reasonably pertinent to medical
diagnosis because the information obtained was ‘‘avail-
able and provided to medical providers and mental
health practitioners.’’ Id.; see also State v. Giovanni P.,
155 Conn. App. 322, 331–32, 110 A.3d 442 (affirming trial
court’s conclusion that interview had medical purpose
based on testimony of interviewer), cert. denied, 316
Conn. 909, 111 A.3d 883 (2015). Recently, in State v.
Estrella J.C., 169 Conn. App. 56, 77–80, 148 A.3d 594
(2016), this court relied, in part, on the timing and con-
text of the forensic interview to conclude that an objec-
tive observer could determine that the interview had a
medical purpose. Because the victim in that case was
undergoing treatment at the time that he was inter-
viewed, this court held that the interview was reason-
ably pertinent to obtaining medical treatment. Id., 77.
We observed further that ‘‘the involvement of a police
officer in the interview does not automatically preclude
a statement from falling within the medical diagnosis
and treatment exception.’’ Id.
Our case law, then, holds that the statements of a
declarant may be admissible under the medical treat-
ment exception if made in circumstances from which
it reasonably may be inferred that the declarant under-
stands that the interview has a medical purpose. State-
ments of others, including the interviewers, may be
relevant to show the circumstances.
Applying these principles to the present case, we
conclude that the trial court properly admitted the DVD
of the second interview under the medical treatment
exception. The interviewer, Murphy-Cipolla, was the
clinical services coordinator at the Children’s Advocacy
Center at Saint Francis Hospital and Medical Center.
She testified that the ‘‘primary purpose’’ of forensic
interviews is to ‘‘elicit clear and accurate information
. . . to minimize any additional trauma to the child and
to make the appropriate recommendations for mental
health and/or a medical exam.’’ Murphy-Cipolla specifi-
cally testified that the second interview was conducted
because the victim disclosed additional information and
that, after the interview, she recommended continued
therapy and a medical exam for the victim. As in Gris-
wold, the victim in the present case was asked whether
she had ‘‘any worries or any problems with any part of
[her] body.’’ The victim also was asked to identify, on
an anatomical diagram, the body parts with which the
defendant had had contact. The interview was con-
ducted at Saint Francis Hospital and Medical Center
and a report prepared after the interview was added to
the victim’s medical file. As in Estrella J.C., this evi-
dence provided a context which suggested a medical
purpose for the victim’s second interview. Finally, Mur-
phy-Cipolla testified, in response to a direct question
from the trial court, that in light of the victim’s disclo-
sure of actual sexual intercourse, the second interview
could be pertinent to additional medical or mental
health treatment because of the extent to which the
sexual abuse affected the victim. We conclude that
under these circumstances an objective observer could
conclude that the second interview was reasonably per-
tinent to medical treatment. See State v. Estrella J.C.,
supra, 169 Conn. App. 76 (‘‘[w]e reach this conclusion
because . . . an objective observer could determine
that the victim’s statements . . . were reasonably per-
tinent to obtaining medical treatment’’).
The defendant correctly urges that the rationale
underlying the medical treatment exception is that the
declarant, in seeking medical treatment, has a motiva-
tion to tell the truth. That rationale, however, does not
require that the statements be made or elicited for the
sole purpose of medical treatment. See id., 74–75
(‘‘[u]ndoubtedly, statements may be reasonably perti-
nent . . . to obtaining medical diagnosis or treatment
even when that was not the primary purpose of the
inquiry that prompted them, or the principal motivation
behind their expression’’ [emphasis in original; internal
quotation marks omitted]); see also State v. Griswold,
supra, 160 Conn. App. 552–53 (same).7 Because our
law permits the rationale behind this exception to be
satisfied even if there is an additional purpose, the
defendant’s argument is not persuasive. For this reason
the trial court’s ruling, albeit based on an erroneous
standard, is sustainable under the medical treatment
exception. If the primary purpose of the interview was
medical, then it necessarily had a medical purpose.
Because the correct standard is broader and more inclu-
sive than the standard applied by the trial court, we
find no error in the court’s ruling. Accordingly, we con-
clude that the trial court did not abuse its discretion
in admitting the DVD recording of the second interview.
As for the defendant’s policy argument, we are not
persuaded that successive interviews should categori-
cally fall outside the medical treatment exception.
Admissibility under the medical treatment exception
‘‘turns principally on whether the declarant was seeking
medical diagnosis or treatment, and the statements are
reasonably pertinent to achieving those ends.’’ (Internal
quotation marks omitted.) State v. Griswold, supra, 160
Conn. App. 552. Although successive interviews may in
some cases, as the defendant suggests, have minimal
medical purposes, it is for the trial court to determine
whether they were reasonably pertinent to obtaining
medical treatment. We decline to hold as a matter of
law that successive forensic interviews are never rea-
sonably pertinent to medical treatment.
In light of our conclusion, we need not address at
length the defendant’s argument that the admission of
the second DVD was harmful. We note, however, that
the defendant acknowledges that the interview ‘‘did not
contain significant factual claims or allegations inde-
pendent of [the victim’s] live testimony.’’ He argues,
nonetheless, that the interview bolstered the victim’s
credibility, ‘‘which was a key issue at trial.’’ The state’s
case, however, was supported by physical evidence,
including DNA analysis.8 Moreover, the victim testified
personally at trial as to all of the abuse that she had
disclosed in the second interview.9 Our review of the
record, therefore, leaves us with a fair assurance that
the trial court’s admission of the second interview, even
if it had been improper, did not substantially affect the
verdict. See State v. Eddie N. C., 178 Conn. App. 147,
173, 174 A.3d 803 (2017) (‘‘[a] nonconstitutional error
is harmless when an appellate court has a fair assurance
that the error did not substantially affect the verdict’’
[internal quotation marks omitted]), cert. denied, 327
Conn. 1000, 176 A.3d 558 (2018).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was acquitted as to an additional count of risk of injury
to a child in violation of § 53-21 (a) (2).
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault 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.
3
The record reveals that the defendant first sexually abused the victim
when she was eleven years old and continued to do so until she was fourteen
years old. The final act of sexual abuse was committed on February 25, 2013.
4
Section 8-3 of the Connecticut Code of Evidence provides in relevant
part that ‘‘[t]he following are not excluded by the hearsay rule, even though
the declarant is available as a witness . . . (5) . . . [a] statement made
for purposes of obtaining a medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof,
insofar as reasonably pertinent to the medical diagnosis or treatment.’’
5
The state also argues that the defendant did not claim at trial that the
medical treatment exception should not apply to subsequent interviews as
a matter of law. We review the defendant’s argument, however, because it
is tied to and falls within the scope of his principal claim that the second
interview in this case was not admissible under the medical treatment
exception. See State v. Telford, 108 Conn. App. 435, 441 n.5, 948 A.2d 350
(defendant allowed to make more specific argument on appeal because it
fell within scope of objection at trial), cert. denied, 289 Conn. 905, 957 A.2d
875 (2008).
6
There is, then, no requirement of direct evidence of the declarant’s state
of mind at the time of the statement. See State v. Telford, supra, 108 Conn.
App. 441, in which this court agreed with the state’s contention that ‘‘the
objective circumstances of the interview [may] support an inference that a
juvenile declarant knew of its medical purpose.’’ This is not to say that
direct evidence would not be useful in the inquiry.
7
We note that the rationale underlying the medical treatment exception
was satisfied in the circumstances of this case. An objective observer could
conclude that the victim understood, from the circumstances of the second
interview, that it was being conducted, at least in part, for medical treatment
purposes. The interview took place at a hospital and the victim knew from
the first interview that treatment and counseling would likely follow the
second interview. That the interview may have had a dual purpose is of
no moment.
8
The last sexual assault occurred on February 25, 2013, two days before
the victim reported the abuse on February 27, 2013. The physical evidence
presented at trial included swabs taken from the victim’s external genital
area, containing semenogelin for which the defendant could not be ruled
out as a source. In addition, the defendant was identified as a contributor
for secretions on underwear the victim wore after the last sexual assault,
and as the source of secretions on another pair of underwear retrieved from
the victim’s home.
9
In fact, at trial, the victim revealed two instances of sexual intercourse
with the defendant that she previously had not disclosed in either interview.