State v. Rodriguez

791 A.2d 621, 68 Conn. App. 303, 2002 Conn. App. LEXIS 104
CourtConnecticut Appellate Court
DecidedFebruary 19, 2002
DocketAC 21086
StatusPublished
Cited by14 cases

This text of 791 A.2d 621 (State v. Rodriguez) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rodriguez, 791 A.2d 621, 68 Conn. App. 303, 2002 Conn. App. LEXIS 104 (Colo. Ct. App. 2002).

Opinion

Opinion

FOTI, J.

The defendant, Jerry Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2)1 and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2).2 The defendant claims that the trial court improperly (1) found that the child victim was not competent to testify dining the trial and (2) ruled that the victim’s testimony given during a competency hearing was inadmissible evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the events giving rise to the defendant’s conviction, the victim was four years of age and the defendant was twenty-three years of age. For approximately eighteen months prior to December, 1997, the defendant resided with the victim, the victim’s mother and the victim’s brother. Although the victim usually referred to the defendant as “Daddy” or “Jerry,” the defendant is not the victim’s biological father. The defendant is the biological father of the victim’s younger brother.

The defendant continued to have a somewhat amicable relationship with the victim’s mother and often vis[305]*305ited with her, the victim and the victim’s brother even after he no longer resided with them. In January, 1999, the victim’s mother was employed at a local video rental store; she customarily worked during the 5 p.m. until midnight shift. The victim’s maternal grandmother or a female friend of the victim’s mother often baby-sat the victim and her brother while their mother was at work.

On January 21,1999, the defendant called the victim’s mother and asked if he could baby-sit for the children while she worked that night. After the victim’s mother agreed, the defendant picked up the children from the home of their maternal grandmother, picked up the keys to the victim’s mother’s house from her and took the children to their home. When the victim’s mother arrived home from work sometime after 12:30 a.m., the children were sleeping in their beds, and the defendant was asleep on the sofa, where he spent the night.

On the evening of January 22, 1999, while the victim was using the bathroom, she complained to her mother that “her butt hurt.” When her mother inquired as to the cause, the victim told her that “Daddy put a bone in my butt, and it hurts.” On the next day, the victim’s mother called the defendant on the telephone and asked him if he, during the prior evening, had physically reprimanded the victim or if anything else had occurred to explain the victim’s statements. At trial, she testified that the defendant seemed upset and that he denied doing anything to hurt the victim. During the day on January 23, 1999, the victim complained sporadically that she felt pain. The victim’s mother bathed the victim that night and again inquired of her as to why she felt pain. The victim reiterated the explanation that she had given her mother on the previous night and, as her mother testified, “pointed inside her butt.”

The next day, the victim’s mother took the victim to local police headquarters to report the victim’s com[306]*306plaints. The victim’s mother then took the victim to a nearby hospital, where emergency medical personnel examined her. The victim reiterated her allegations about the defendant. On January 27, 2000, Judith Kanz, a certified pediatric nurse practitioner and an expert in evaluating children complaining of sexual abuse, examined the victim. The victim reported to Kanz an account of sexual abuse consistent with her earlier statements. Kanz also testified that, during her physical examination of the victim, she found a “borderline abnormal” dilation of the victim’s rectum and that this finding caused concern as to whether something had penetrated her rectum. Joanne Iurato, a licensed clinical social worker who specializes in the field of abused children, also interviewed the victim. She testified that the victim told her that her mother’s boyfriend, whom she identified as “Daddy” or “Jerry,” had “put a bone in her butt and [that] it appeared to look like a piece of meat.” On the basis of the evidence and expert testimony adduced at trial, the jury could reasonably have found that the defendant had sexually assaulted the victim.

I

The defendant first challenges the court’s ruling that the victim was not competent to testify at trial. The defendant argues that the court (1) abused its discretion when it concluded that the victim was not a competent witness and (2) improperly rendered that decision after conducting a preliminary hearing, in violation of General Statutes § 54-86h,3 to determine the victim’s competency, rather than considering the issue after the victim [307]*307was called to testily during the evidentiary phase of the trial.

The record reflects that after the completion of jury selection but prior to trial, the defendant filed a motion captioned “Motion to Suppress and Strike Testimony of Minor Child as Being the Unreliable Product of Improperly Suggestive Interview Techniques and Therapy.” At a pretrial hearing in which the court heard argument relevant to several motions, the court inquired of counsel as to how they wanted the court to proceed in considering the defendant’s motion to suppress. The court decided to conduct the hearing at that time, rather than conducting the hearing during trial. The defendant concedes, as he must, that he did not object to the court’s decision to conduct the hearing at that time.

The court thereafter heard testimony from the victim’s mother and the victim. After the victim testified, both the prosecutor and victim’s guardian ad litem acknowledged that the victim was not a competent witness. The defendant’s attorney agreed with that assessment and stated: “I don’t see how the court can find that she is a competent witness . . . .” Later that day, at the court’s suggestion, the proceedings reconvened in a different courtroom wherein the victim was not able to see the defendant, but the defendant was able to monitor the proceedings via a one way mirror. The court, the prosecutor and the defendant’s attorney undertook a further examination of the victim. At the conclusion of the examination, the prosecutor argued that the victim was a competent witness. The court concluded that the victim was not competent, and the defendant did not object to that ruling.4

[308]*308The parties agree that this issue was not preserved at trial. When a party raises a claim for the first time on appeal,5 our review of the claim is limited to review under either the plain error doctrine as provided by Practice Book § 60-5,6 or the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). hi his appellate brief, the defendant did not seek review of this claim under either of those doctrines. The defendant agrees that this is an unpreserved evidentiary claim and that, as such, it is not a claim for which Golding review is appropriate. See State v. Paris, 63 Conn. App. 284, 294-95, 775 A.2d 994, cert. denied, 257 Conn. 909, 782 A.2d 135 (2001).

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Cite This Page — Counsel Stack

Bluebook (online)
791 A.2d 621, 68 Conn. App. 303, 2002 Conn. App. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodriguez-connappct-2002.