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*********************************************** 
STATE OF CONNECTICUT v. ANIBAL BOBE

(AC 39781)

Alvord, Bright and Sullivan, Js.

Syllabus

Convicted of the crime of sexual assault in the second degree and two

counts of the crime of risk of injury to a child, the defendant appealed

to this court. The defendant’s conviction stemmed from his alleged

sexual abuse of the minor victim, who had resided for a short period

of time in the defendant’s apartment with his siblings and his mother.

At trial, over the defendant’s objection, the victim testified regarding

what his mother had told him the defendant said about why the family

was asked to move out of the apartment. On appeal, the defendant

claimed that the trial court improperly admitted his alleged out-of-court

statement to the victim’s mother through the testimony of the victim.

Held that the defendant failed to demonstrate that any claimed error in

the admission of the challenged statement was harmful, he having failed

to demonstrate that the jury’s verdict was substantially swayed by the

claimed error: the state’s case against the defendant was strong in that

the jury heard a detailed description of the defendant’s conduct from

the victim, whose testimony was corroborated by his stepbrother’s constancy of accusation testimony, the challenged testimony consisted of

one question and one short answer, and the prosecutor referred to the

challenged statement only once in her closing argument and did not

use the statement for its truth or to disparage the defendant; moreover,

to the extent that the challenged statement had any impact on the jury,

it was inconsistent with the testimony of another witness regarding the

reason that the victim’s family had to leave the apartment and, therefore,

would have undermined, rather than bolstered, the victim’s credibility.

Argued November 28, 2017—officially released February 27, 2018

Procedural History

Substitute information charging the defendant with

the crime of sexual assault in the second degree and

two counts of the crime of risk of injury to a child,

brought to the Superior Court in the judicial district of

Fairfield and tried to the jury before the court, Kahn,

J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

Lisa J. Steele, assigned counsel, for the appellant

(defendant).

Sarah Hanna, assistant state’s attorney, with whom,

on the brief, were John C. Smriga, state’s attorney, and

Ann P. Lawlor, senior assistant state’s attorney, for the

appellee (state).
Opinion

SULLIVAN, J. The defendant, Anibal Bobe, appeals

from the judgment of conviction, rendered after a jury

trial, of sexual assault in the second degree in violation

of General Statutes § 53a-71 (a) (1), and of injury to a

child in violation of General Statutes § 53-21 (a) (1),

and risk of injury to a child in violation of § 53-21 (a)

(2). On appeal, the defendant claims that the trial court

improperly admitted into evidence hearsay and double

hearsay through the testimony of the victim.1 We conclude that any claimed error was harmless and, accordingly, affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the

jury reasonably could have found the following facts.

In July, 2012, the male victim, then fourteen years old,

and his family were homeless. The victim’s mother was

acquainted with the defendant, who allowed them to

live in his one bedroom apartment with him. The defendant helped his landlord with building maintenance and

had access to the building’s attic and vacant apartments

in the building that required work. The defendant asked

the victim’s mother if the victim could help him paint

a neighboring vacant apartment. That apartment had

painting mats down on the floor. The defendant provided the victim with a brown bottle of liquor that the

victim described as ‘‘[tasting] horrible.’’2 The defendant

and the victim took off each other’s clothes. The victim

put his mouth on the defendant’s penis and performed

oral sex until the defendant ejaculated on the floor, and

the defendant did the same to the victim.

On another occasion, the defendant invited the victim

to come up to the attic, where there was a bed, to have

‘‘sweaty sex.’’ The victim went into the attic with the

defendant, and they took off each other’s clothes and

performed oral sex on each other. The defendant ‘‘put

the tip of his [penis] in [the victim’s anus], but it didn’t

go all the way in because [the victim] . . . clenched

up . . . and . . . [pushed] away because it . . .

[hurt].’’ Another time in the vacant apartment, the defendant asked the victim to ‘‘turn over so that he [could]

stick it in.’’ The victim did not want to engage in anal

sex, but the defendant told him that ‘‘[it was] ok’’ and

fully penetrated the victim’s anus. The victim described

it as a ‘‘painful,’’ ‘‘awful feeling.’’ The victim stated that

when the defendant finished it felt like the defendant

had ‘‘[ejaculated] inside [of him].’’ The defendant never

used a condom during any of the assaults. Afterward,

the victim went to the bathroom and saw blood in

his underwear. The victim told the defendant, but the

defendant ‘‘tried to deny it and say that . . . it wasn’t

blood.’’ The victim was scared, and he threw away the

bloody underwear.

The victim engaged in oral sex with the defendant

approximately two other times, and the defendant
attempted to engage in anal sex with the victim on one

other occasion. The defendant told the victim multiple

times ‘‘not to tell anyone because [they] would both

get in trouble.’’ Initially, the victim did not tell anyone

about the assaults because he ‘‘was scared and . . .

[did not] know what was going to happen’’ or ‘‘what

anybody would think.’’ The victim was ‘‘very concerned’’ about whether his family would be able to stay

in the defendant’s apartment. Later that month, the

landlord discovered that the victim’s family was living

in the defendant’s apartment and asked them to leave.

In the spring of 2013, the victim told his stepbrother

the defendant’s name and ‘‘exactly what happened from

the beginning . . . to the end.’’ The victim then told his

father and stepmother, who contacted the Bridgeport

Police Department.

The state subsequently charged the defendant with

sexual assault in the second degree, and two counts of

risk of injury to a child. A three day jury trial commenced on July 6, 2016, at which the victim testified.

The victim’s testimony was corroborated by his stepbrother’s constancy of accusation testimony. During the

state’s direct examination of the victim, the following

exchange occurred:

‘‘[The Prosecutor]: [W]ith respect to your birthday

and the time you moved out of [the defendant’s] apartment, can you tell us about that?

‘‘[The Victim]: He kicked us out a few days before

my birthday. And my mom told me the reason he kicked

us out—

‘‘[Defense Counsel]: Objection. It’s hearsay.

‘‘The Court: Sustained as to hearsay. You can tell

us—I’ll permit—well, actually I’m going to overrule the

objection because it’s the defendant’s statement. So it’s

a statement against penal interest. So under that. . . .

[Y]ou may—you may say what the defendant told you

or told your mom.

‘‘And it’s not to be admitted for the truth of the matter

asserted. So to the extent it’s double hearsay, I’ll overrule it on that basis. I’m sorry. The question is what the

defendant told [the victim’s] mother why he was—why

they were being kicked out. . . .

‘‘[The Prosecutor]: Yes.

‘‘The Court: Ok. . . . I’ll permit that.

‘‘[The Prosecutor]: What, if anything, did [the defendant] tell your mother or you about why you were

getting kicked out?

‘‘[The Victim]: [The defendant] told my mom we were

getting kicked out because he wanted to jerk off in

peace.’’

On July 8, 2016, the jury returned a verdict of guilty

as to all charges and, thereafter, the defendant was
convicted and sentenced to a total effective sentence of

thirty-five years of incarceration, execution suspended

after seventeen years, followed by thirty years of probation. This appeal followed.

On appeal, the defendant generally argues that the

trial court improperly admitted hearsay and double

hearsay evidence by permitting the victim to testify

about what his mother told him the defendant said.

The state argues that because the testimony was not

admitted for the truth of the matter asserted, it was

properly admitted as nonhearsay. The state further

argues that the defendant’s claim is not preserved

because once his hearsay objection was overruled, he

did not object to the testimony on any other basis.

We conclude that, even assuming, arguendo, that the

admission of the testimony was improper, it was not

harmful because the evidence did not substantially

affect the verdict in this case.

We turn to the standard of review and legal principles

that guide our review of the defendant’s claim. ‘‘[T]o the

extent that we assume impropriety in the trial court’s

evidentiary [rulings], [w]hen an improper evidentiary

ruling is not constitutional in nature, the defendant

bears the burden of demonstrating that the error was

harmful. . . . [W]hether [the improper admission of a

witness’ testimony] is harm[ful] in a particular case

depends upon 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. . . . [T]he proper standard for determining

whether an erroneous evidentiary ruling is harm[ful]

should be whether the jury’s verdict was substantially

swayed by the error.’’ (Internal quotation marks omitted.) State v. Paul B., 315 Conn. 19, 30–31, 105 A.3d

130 (2014). ‘‘Accordingly, 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.) State v. Toro, 172

Conn. App. 810, 817, 162 A.3d 63, cert. denied, 327 Conn.

905, 170 A.3d 2 (2017).

We conclude that the defendant has not demonstrated that any claimed error was harmful. The state

presented a strong case against the defendant. The jury

heard a detailed description of the defendant’s conduct

from the victim, whose testimony was corroborated by

his stepbrother’s constancy of accusation testimony.

Additionally, the challenged testimony consisted of one

question and one short answer. The prosecutor referred

to the statement only once in her closing argument and

did not use the statement for its truth or to disparage

the defendant, but only referenced that the ‘‘information
was shared’’ with the victim.3 Moreover, the challenged

testimony was inconsistent with the landlord’s testimony, in which she stated that she told the defendant

that the victim’s family had to leave the apartment. The

state highlighted the landlord’s testimony in its closing

argument.4 Accordingly, to the extent that the challenged testimony had any impact on the jury’s verdict,

it would have undermined, rather than bolstered, the

victim’s credibility. In light of this, and, recognizing the

strength of the state’s case and the insignificance of

the challenged testimony, we conclude that, even if we

assume that the victim’s testimony as to the challenged

statements improperly was admitted, the defendant has

not demonstrated that its admission was harmful.

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 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 can be

ascertained. See General Statutes § 54-86e.

2 The defendant provided the victim with alcohol on two other occasions.

3 The prosecutor, in her closing argument, stated: ‘‘So [the victim] tells

us he’s living in an apartment . . . for about a month and he knows that

they got kicked out a few days before his birthday. He doesn’t tell his mother.

He describes how he was feeling scared and worried. He does testify to

that. And how he was worried that they would get kicked out of the apartment. This is a kid that’s homeless. And I would submit to you that at no

time did he testify or was there any evidence presented that he would be

safe and secure if he lived with his father. He’s [a] fourteen year old kid.

. . . He’s with his mother and two younger siblings. And when they do get

kicked out for whatever reason, his mother tells him, according to [the

victim’s] testimony, they got kicked out of the apartment because the defendant wants to jerk off in peace. For better or for worse, that information

was shared with [the victim] because he told us.’’

4 The prosecutor, in her closing argument, also stated: ‘‘[The defendant]

knows that they are homeless because they’re living with him. They’re in

the apartment with him. They’re not supposed to be there. The [landlord]

told us that. That’s why she told [the defendant] that they had to leave.’’