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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 sustainable 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 pertinent 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 pertinent 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 appellant (defendant).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and Chris A. Pelosi, senior assistant state’s attorney, for the appellee (state).
Opinion

BEACH, J. The defendant, Joseph Abraham, was convicted, 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 allegations 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 department 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 ombudsman’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 contacted the department because of concern that the victim 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 victim. 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 recommended 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 Murphy-Cipolla and other witnesses. Murphy-Cipolla testified 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 forensic interviews were conducted upon referrals ‘‘primarily

from the department . . . [but also] from the emergency department, pediatricians, police and, occasionally, 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 interview, 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 [department] worker, which was subsequent to the issuance

of the temporary restraining order. As far as we can

tell . . . the temporary restraining order that was protecting 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 ombudsman 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 beginning 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 complaint 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 questions 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], particularly 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 medical, particularly in the circumstance [where] the defendant 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 subsequent to Murphy-Cipolla’s discussion with the observers. 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 treatment 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 defendant argues that the interview was not reasonably pertinent 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 treatment was ‘‘merely incidental.’’ In making this argument,

the defendant urges this court to consider the rationale

behind the medical treatment exception: that the declarant 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 policy, the medical treatment exception should apply only

to forensic interviews that ‘‘truly are pertinent to medical 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 harmful because it bolstered the victim’s credibility.

The state agrees that the trial court applied an incorrect standard for the medical treatment exception but

argues that the second DVD, nevertheless, was admissible under the correct standard.5 The court ruled that

the statements made during the second interview were

admissible because the primary purpose of the interview 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 exception properly is identified are legal questions demanding

plenary review. . . . We review the trial court’s decision 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 evidence based upon relevancy, prejudice, or other legally

appropriate grounds related to the rule of evidence

under which admission is being sought.’’ (Internal quotation 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 reasonably 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 motivated by a desire for treatment . . . in cases involving

juveniles, [we] have permitted this requirement to be

satisfied inferentially.’’ (Internal quotation marks omitted.) Id., 556; see also State v. Telford, supra, 108 Conn.

App. 441–42.6

In Telford, this court concluded that the victim’s testimony 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 statements 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 interviewer 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 ‘‘available 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 context of the forensic interview to conclude that an objective 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 interviewed, this court held that the interview was reasonably 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 treatment exception if made in circumstances from which

it reasonably may be inferred that the declarant understands that the interview has a medical purpose. Statements 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 specifically 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 Griswold, 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 conducted 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 evidence provided a context which suggested a medical

purpose for the victim’s second interview. Finally, Murphy-Cipolla testified, in response to a direct question

from the trial court, that in light of the victim’s disclosure 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 pertinent 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 pertinent 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 motivation 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 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’’ [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 inclusive than the standard applied by the trial court, we

find no error in the court’s ruling. Accordingly, we conclude 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 categorically 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 reasonably 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 independent 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.