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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 appellant (defendant).

Brett R. Aiello, special deputy assistant state’s attorney, 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,1that 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 proceeded to show the defendant her snow globe collection. They continued to talk about the family, generally

‘‘catching up,’’ when he told her that she looked beautiful. 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 situation 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 penilevaginal 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 defendant, 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, however, one of the girls reported the incident to her guidance 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 accordingly. 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 members 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 conversations with her when she was nine or ten years old.

Those inappropriate sexual conversations continued

for a few years. Defense counsel argued that the conduct 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 reason, 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 evidence 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 contact. And I will admit that’s . . . as far as I’m concerned, 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 testimony 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.’’ Specifically, 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 misconduct 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 ‘‘exquisitely 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 defendant’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 evidence 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 admitted when it is offered for a purpose other than to establish the defendant’s bad character or criminal

propensity. Among other things, prior misconduct evidence 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 propensity to engage in aberrant and compulsive criminal sexual 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, evidence 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 aberrant 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 prosecuting 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 admission.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 exception adopted herein must be accompanied by an appropriate cautionary instruction to the jury.’’7

(Citations

omitted; footnote added; internal quotation marks omitted.) Id., 473–74.

With these principles in mind, we address the defendant’s claim that the 1997 incident was too remote in

time because there was a hiatus oftwelve 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. Kulmac, 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 ‘‘insignificant’’ 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 concluding incident seven years prior to charged misconduct 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 defendant. 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 witness 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 omitted.) 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. McKenzie-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 admissible 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 complainant 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 allegations 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. Antonaras, 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).