87 Conn. App. 494

STATE OF CONNECTICUT v. JAMES W. *

(AC 24396)

Foti, Flynn and Hennessy, Js.

*495Argued November 18, 2004

officially released February 15, 2005

William F. Gallagher, with whom, on the brief, were Hugh D. Hughes, Mark A. Balaban and Lawrence S. Hopkins, for the appellant (defendant).

Joseph T. Corradino, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Bene-*496diet, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).

Opinion

FOTI, J.

The defendant, James W., appeals from the judgment of conviction, following a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (2).1 The defendant claims that the court improperly permitted the state to elicit certain testimony from an expert witness. We 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. The victim turned three years old in April, 2002. Her parents often took her to the home of the defendant, her paternal grandfather. The victim’s parents did not leave the victim unaccompanied with the defendant or his wife, who also lived at the home, but the victim and the defendant did spend time alone together during the visits. During one of these visits in May or June, 2002, the defendant touched the victim’s intimate parts.2

In addition to eliciting testimony from other witnesses at trial, the state elicited testimony from Lisa Radigan, a licensed clinical social worker. Radigan testified concerning her educational background in social work, as well as her professional experience providing mental health treatment to children, adolescents and adults. As part of her experience, Radigan has either *497supervised or conducted numerous interviews of children, some as young as three years of age, in child sexual abuse cases. According to Radigan, many of those children were referred to her by police departments or the department of children and families (department). In her capacity supervising interviews, Radigan has worked with department employees, law enforcement personnel, victim’s advocates and interviewers. Radigan has evaluated children concerning sexual abuse in her employment at mental health treatment centers concerning sexual abuse, as well as at hospital affiliated sexual abuse climes. Radigan also has trained medical students, police officers and department workers in the subject of child sexual abuse.

Radigan testified concerning the process of conducting forensic interviews of children as it relates to sexual abuse and discussed certain behavior generally exhibited by child sexual abuse victims. Radigan testified that she was familiar with the victim in the present case and the interview process that she underwent. The defendant challenges the admissibility of two aspects of Radigan’s testimony, which, he argues, constituted improper expert opinion with regard to credibility. First, the defendant argues that the court improperly permitted Radigan to testily regarding the subject of delayed disclosure of abuse by child sexual abuse victims. Second, the defendant argues that the court improperly permitted Radigan to testily with regard to the subject of coaching, as it pertains to allegations of child sexual abuse. We will set forth our standard of review and address each of the claims in turn.

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 123, 763 A.2d 1 (2000). *498“A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.” Conn. Code Evid. § 7-2.

I

The defendant first claims that the court improperly permitted the state to elicit testimony from Radigan regarding the subject of delayed reporting of abuse by minor sexual abuse victims. Before Radigan testified, the defendant asked the court to preclude the state from eliciting expert testimony from Radigan concerning two subjects upon which the state indicated she would testify: delayed disclosure of abuse by minor sexual abuse victims and coaching. The defendant argued, with regard to testimony concerning delayed disclosure, that such testimony was not relevant in this case. The state argued that the evidence demonstrated that the victim had not disclosed the abuse to anyone immediately after it allegedly had occurred and that expert testimony from Radigan as to the general behavior patterns of minor sexual abuse victims was relevant to understanding why this might have occurred. The state argued that the law permitted such testimony and that Radigan would not testify with regard to the credibility of the victim. The court permitted the testimony.

Radigan testified as follows with regard to the issue of delayed disclosure during the state’s direct examination:

“Q. Now in your experience, training and education, Ms. Radigan, do children in the age range of three to four years have difficulty concerning temporal concepts, timing?
*499“A. Yeah. Kids actually don’t master things like dates and times usually until about age seven. But preschool children particularly have a really difficult time kind of being able to articulate exactly when something happened. They just developmentally don’t have the concepts to articulate those types of things.
“Q. And have you ever heard the term late disclosure?
“A. Yes.
“Q. And what does that mean?
“A. A late or delayed disclosure basically means that a child doesn’t tell right away after they’ve been touched, which is actually more common than not in cases of sexual abuse.
“Q. And why is that?
“A. Lots of factors. Sometimes kids are threatened or told not to tell, lots of kids don’t really understand what’s happened to them, and they, especially young kids, don’t have the articulation to explain to someone what’s happened. Embarrassment, shame, kids often feel responsible because their parents tell them, you know, no one is supposed to touch you in your privates, and then when that happens, a lot of times kids will take responsibility that perhaps sometimes it’s their fault. Kids generally don’t report things when they think it’s their fault.
“Q. Now the children at the age of three to four, do they understand their sexual organs or what they’re for, other than perhaps the basic sanitary needs?
“A. Yeah, I mean, kids generally associate genitalia with, you know, being able to go to the bathroom.
“Q. All right. Does the relationship between the offender and the victim in any way play a part in that *500delayed disclosure that you were speaking about before?
“A. Sure. I mean, it certainly complicates it, you know. As you can imagine, you know, if somebody that you have positive feelings about or have a close relationship violates you in a certain way, it makes it much more complicated and makes it much more difficult to tell. Lots of times kids, again, take the responsibility. They’re afraid if they tell their mother or tell their father that the father is going to get upset or worried or things like that.”

The victim, who was three years old at the time of trial, testified on direct examination that she thought she told her parents “right away” that the defendant had touched her “privates.” During cross-examination, the defendant’s attorney asked the victim several questions related to the timing of her disclosure. For example, he asked the victim if she remembered “when” she spoke with her parents about the alleged incident and if she had discussed the incident “recently.” The victim replied that she did not remember when she talked with her parents about the incident. The defendant’s attorney pursued the line of inquiry, asking the victim if she remembered telling her mother about the incident. The victim replied affirmatively. The defendant’s attorney asked the victim where the disclosure had occurred, whether it had taken place at the defendant’s house (where the incident allegedly had occurred) and whether the disclosure had occurred on the same day that the incident allegedly occurred. The victim gave contradictory answers to the questions. She testified, on the one hand, that she told her mother about the incident on the same day that it had occurred at the defendant’s house and, on the other hand, that she did not recall where she was when she told her mother about the incident. The defendant’s attorney also inquired whether the victim had visited a physician *501“near the time” that the defendant had touched her. The victim replied that she had not.

The victim’s mother testified that she and her husband took the victim to the defendant’s house frequently for visits, and that visits occurred in May and June, 2002. The victim’s mother testified that the victim told her about the incident on June 25, 2002, while she was driving the victim to her day care provider. According to the victim’s mother, she was discussing “good touch and bad touch” with the victim when the victim indicated where the defendant had touched her by rubbing her “vaginal area.”

During cross-examination, the defendant’s attorney asked the victim’s mother about her testimony that the victim related more details about the incident to her after the initial disclosure. The victim’s mother testified that, within a week after the victim told her about the incident, the victim told her that the incident had occurred in the defendant’s backyard. The defendant’s attorney asked the victim’s mother questions related to the timing and circumstances of this further disclosure by the victim.

The defendant argues that “[t]he defense never impeached the credibility of the victim regarding delayed reporting” and that “Radigan’s testimony regarding delayed reporting therefore did not rebut or refute any insinuation by the defendant, but rather served only to bolster the credibility of the victim.” The defendant asserts: “In the absence of impeachment on this subject, the extensive expert testimony about delayed reporting served one purpose: to comment on the credibility of the victim.”

This court addressed a similar issue in State v. Car-dany, 35 Conn. App. 728, 730-32, 646 A.2d 291, cert, denied, 231 Conn. 942, 653 A.2d 823 (1994), another appeal from a conviction on charges related to the sex-

*502ual abuse of a minor victim.3 There, one of the issues raised was whether the trial court properly had admitted expert testimony “that it is not unusual for abuse victims to delay in reporting incidents of abuse.” Id., 730. The defendant claimed that the expert testimony was inadmissible because he “had not initially impeached the victim’s credibility on the issue of delay.” Id. This court held that “the state may introduce expert testimony that explains in general terms the tendency of minors to delay in reporting incidents of abuse once the victim has testified and there has been testimony introducing the alleged dates of abuse and reporting.” Id., 731. “The rationale for allowing testimony in the state’s case-in-chief to explain alleged delays in reporting incidents of abuse is analogous to the rationale for allowing constancy of accusation testimony, with or without actual impeachment.” Id. This court further explained that “[i]t is natural for a jury to discount the credibility of a victim who did not immediately report alleged incidents of abuse whether or not the defense emphasizes the delay in cross-examination. Thus, testimony that explains to the jury why a minor victim of sexual abuse might delay in reporting the incidents of abuse should be allowed as part of the state’s case-in-chief.” Id., 732. This court upheld the admission of expert testimony concerning the subject of delayed disclosure by minor victims of sexual abuse in Cardany, and there is no dearth of authority upholding the admissibility of such evidence. See, e.g., State v. Francis D., 75 Conn. App. 1, 14-16, 815 A.2d 191, cert, denied, 263 Conn. 909, 819 A.2d 842 (2003); State v. Thompson, 71 Conn. App. 8, 17-23, 799 A.2d 1126 (2002); State v. Christiano, 29 Conn. App. 642, 649-54, 617 A.2d 470 (1992), aff'd, 228 Conn. 456, 637 A.2d 382, *503cert, denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994).

The defendant’s claim that Radigan’s testimony with regard to delayed disclosure was inadmissible because he did not attempt to impeach the victim’s credibility on the basis of delayed disclosure is belied by the transcript of proceedings at trial. The record reflects that the defendant’s attorney did, in fact, question the victim and her mother concerning the timing of the victim’s initial disclosure of abuse, as well as the timing of the victim’s later disclosure of additional information about the abuse. Whether the defendant’s inquiries constituted an impeachment of the victim’s credibility, however, is not dispositive. Our law is clear that impeachment is not a necessaiy predicate for the introduction of this expert testimony; all that is required is that evidence concerning the timing of the alleged abuse and disclosure be placed before the finder of fact.4 That occurred in this case, and the court properly permitted the state to elicit Radigan’s testimony during its casein-chief. Here, the expert testimony was admissible, and did not impermissibly bolster the victim’s credibility, because it explained, in general terms, the behavioral characteristics of minor sexual abuse victims with regard to the issue of delayed disclosure of abuse. Accordingly, we conclude that the court did not abuse its discretion by permitting the state to present this evidence to the jury.

II

The defendant finally claims that the court improperly permitted Radigan to testify with regard to the subject of coaching, as it pertains to child sexual abuse victims. As we noted in the context of our discussion *504in part I, the defendant asked the court to preclude Radigan from testifying with regard to the subject of coaching. The defendant argued, essentially, that Radi-gan’s expert testimony was unnecessary because the jury did not need any assistance in evaluating the victim’s credibility and that any expert testimony concerning general behavior exhibited by minor sexual abuse victims would encroach upon the jury’s evaluation of the victim’s credibility. The prosecutor argued that Rad-igan’s testimony with regard to the general behavioral characteristics of minor victims of sexual abuse and, specifically, the issue of coaching,5 was relevant and admissible because the defendant’s attorney, in his cross-examinations of the victim and other witnesses had, at the least, implied that the victim had been coached to allege abuse. As he did with regard to expert testimony concerning delayed disclosure, the prosecutor argued that testimony concerning coaching would assist the jury in evaluating the victim’s testimony. The court agreed with the state, noting that, in light of the alleged victim’s age and the allegations of abuse, the testimony would be helpful to the jury. The court also indicated that it believed that the defendant’s attorney, during cross-examination, had attempted to demonstrate that the victim had been coached.

The prosecutor, thereafter, elicited testimony from Radigan with regard to the subject of coaching. The following colloquy occurred during the state’s casein-chief: *505and thinks, okay, what are all the other possibilities of why this child would be saying it other than sexual abuse? And you kind of systematically rule those possibilities out until you come to the conclusion that, you know, why else would the child be saying this? Coaching is always something that we’re concerned about and are always looking for.

*504“Q. Now in your experience . . . coaching of children, is that a concern in forensic interviews?
“A. Sure, it’s always a concern. I think a good forensic interviewer, a good supervisor, goes into an interview
*505“Q. Now, in your experience, your training and education, and some of the literature that exists out there with respect to coaching, are there any particular signs that you look for that the child may exhibit [if] coaching is suspected?
“A. Sure. And again, this is, you know, this is general. Often kids who are coached tend to blurt out their statement right away, you know, because they’ve kind of been programmed that this is what they need to say, so they’ll say it right away. They kind of don’t participate through an engagement period during the interview. Kids sometimes will have pretty limited statements around the abuse, you know, they’ll make vague statements. They often can’t talk about sensory details. What did it feel like? What did it look like? What did it smell like? Things like that. In general, parents who are coaching their child are usually very involved in the process, you know, sometimes [they] don’t want to separate from the child. Sometimes parents will insist on being in the room with the child being interviewed and will appear, for lack of a better word, overintense in the process, kind of wanting to know a lot of details. Well, what exactly did the child say? Things like that.
“Q. Now, in this particular case with [the victim], did you have an opportunity to meet with the parents when the interview was conducted?
“A. Yes, I did.
*506“Q. Okay. And was there a separation, meaning was [the victim] interviewed in a room other than a room that her parents were in?
“A. Yes. The parents were not present.
“Q. All right. And with respect to [the victim] separating from her parents, do you recall whether or not the parents, after the interview, were overly enthusiastic about any of the information that you had given to them — that you may have given to them?
“A. No. I mean, they were appropriately concerned. They certainly wanted to know what our impressions were and they were certainly interested in what their child disclosed.
“Q. Okay.
“A. They were actually more concerned about treatment and recovery for their daughter than actually the content of the disclosure.”

The defendant claims on appeal, as he did at trial, that the court should have precluded the testimony because he did not attempt to impeach the victim’s credibility by suggesting that she had been coached. The defendant also claims that, even if he had sought to impeach the victim’s credibility in this manner, Radi-gan’s testimony impermissibly bolstered the victim’s credibility.

Our review of the record supports the observations of the prosecutor and the court that the defendant had attempted to impeach the victim’s credibility by demonstrating that she had been coached by her mother. The defendant pursued this line of inquiry in his cross-examination of the victim. First, the defendant cross-examined the victim concerning conversations that she had had with her mother, before she alleged abuse, related *507to the issue of sexual abuse.6 Second, the defendant, over objection by the state, cross-examined the victim about statements she made to her day care provider at or around the time that she reported the abuse to her mother. Specifically, the defendant’s attorney asked the victim if she made certain statements about experiencing pain in her genitals because her mother told her to do so.7 Finally, the defendant’s attorney asked the victim *508if she had rehearsed her present testimony with her mother.

At trial, the victim’s mother testified that the victim disclosed the abuse to her while she was driving the victim to her day care provider and that the disclosure occurred at or near a time at which she had discussed the topic of sexual abuse with the victim. The victim’s mother testified that, from the time that her daughter was two years old, she routinely discussed the issue of “good touch and bad touch” with her so as to educate her daughter about the subject and to let her know that it was “okay to tell the truth in case something bad did happen.” The victim’s mother testified that she did not discuss with the victim the subject of her testimony in court, tell her anything about coming to court to testify or “prepare” her for testifying.

The defendant also pursued lines of inquiry related to coaching in his cross-examination of the victim’s mother. First, the defendant’s attorney cross-examined the victim’s mother concerning her relationship with the defendant, her husband’s father. The defendant’s attorney specifically inquired as to financial disagreements between the victim’s mother and the defendant, disagreements that purportedly arose just prior to the *509victim’s allegation of abuse.8 By means of this inquiry, the defendant could have intended to demonstrate only that the victim’s mother had a motive to cause her daughter to allege the abuse because of her own disagreements with the defendant. Second, the defendant’s attorney extensively cross-examined the victim’s mother about her practice of talking frequently with the victim about the subject of sexual abuse and her own history of sexual abuse as a child.9 These inquiries *510are related to the subject of coaching because they help demonstrate that the victim’s mother frequently discussed sexual abuse with the victim and, therefore, could have influenced the victim’s allegation of abuse if she so desired. Third, the defendant’s attorney later asked the victim’s mother if, prior to the date on which the victim allegedly told her about the abuse, she told the victim that her “privates were going to hurt” before she went to her day care provider.

*511During his cross-examination of Radigan, the defendant’s attorney reinforced the inference that the victim’s mother caused the victim to allege the abuse.10 This inquiry reinforced the theory, relied on by the defense, that the victim’s mother was in a position to cause the victim to allege abuse.

During the defendant’s case-in-chief, the defendant’s attorney elicited testimony from an employee at the victim’s day care center, Jennifer Takacs. He inquired with regard to whether, on June 20, 2002, the victim told Takacs that her “privates” were going to hurt her that day. The defendant’s attorney also asked Takacs whether the victim told her that her mother told her that before she left her at the day care center. Takacs answered in the affirmative to both of these inquiries. The defendant’s attorney also elicited testimony from Sandy Kell, the director of the victim’s day care center. He asked Kell whether the victim’s mother had spoken with her on June 25, 2002, and whether, as a result of that conversation, she took steps to memorialize the victim’s earlier report of discomfort in writing. Kell testified that this was the case. This evidence demonstrated that the victim’s mother told the victim that she *512would experience discomfort in her genitals, that this conversation occurred just prior to the time at which the victim allegedly told her mother about the sexual abuse and that the victim’s mother went to the victim’s day care provider and caused the victim’s complaint to be memorialized in writing. It is not unreasonable to view this as circumstantial evidence presented to demonstrate that the victim’s mother coached the victim and ensured that a record was created that would help substantiate the claim of sexual abuse.

The implications raised by the defendant during cross-examination and in the evidence that he elicited in his case-in-chief were reflected in the closing argument of the defendant’s attorney. The defendant’s attorney characterized the victim’s mother as having a “pedophile phobia.” The defendant’s attorney argued that the victim’s mother, having been the victim of sexual abuse herself at an early age, essentially caused the claim of sexual abuse in this case. He argued that the victim’s mother “turned” what could have been “some innocent gesture” by the victim into “some sort of sexually inappropriate contact with the child by the grandfather” because of her own phobia about sexual abuse. Throughout his closing argument, the defendant portrayed the victim’s mother as being inappropriately concerned with sexual abuse and suggested that she engaged in age inappropriate conversations concerning sexual abuse with the victim. The defendant argued this point to the extent that he stated, with regard to the victim’s testimony, as follows: “What we think is that this is the product of an overwrought mother, who’s paranoid about the crime specifically of sexual assault or the sexual abuse of children. For the good reason, most likely, albeit nonsensical, but understandable reason, that she had been abused as a child herself. And she is now so overly protective of her child that this *513has resulted in this allegation, for which we all find ourselves collected here.”

It is clear that the defendant elicited testimony intending to demonstrate that the victim’s mother, for whatever improper reason, exerted such an influence over the victim that she caused the victim to testily falsely that the defendant had sexually abused her. The defendant clearly focused the jury’s attention on the behavior of the victim’s mother as an explanation for the victim’s allegations. By relying on this theory of defense, the defendant asked the jury to believe that, rather than being the product of the victim’s memory of past events, the victim’s testimony was based on things that her mother either had told her, or had told her to say to others, concerning the defendant. The defendant argues, as he did at trial,11 that he did not assert that the victim had been coached, but that the victim’s mother had “created an environment where [the victim] felt strongly encouraged to say” that the defendant had sexually abused her. Even if the defendant properly argues that there is a distinction between suggesting that the victim had been influenced strongly by her mother to allege the abuse and suggesting that the victim was coached by her mother to allege the abuse, we disagree with the defendant that his efforts to impeach the victim’s credibility were limited to the former of these two grounds. On the basis of the questioning and evidence set forth above, we conclude that the defendant raised the issue of whether the victim *514had been coached, even if he did so by implication rather than by name.

Having determined that the defendant sought to impeach the credibility of the victim on the basis that her mother had caused her to testify untruthfully that the defendant had abused her, we next determine whether the court properly admitted into evidence Radi-gan’s testimony concerning coaching.

Issues of credibility typically are determinative in child sexual abuse prosecutions. This is so because “in sex crime cases generally, and in child molestation cases in particular, the offense often is committed surreptitiously, in the absence of any neutral witnesses.” State v. Merriam, 264 Conn. 617, 669, 835 A.2d 895 (2003). Generally, an expert witness may not express an opinion as to an ultimate issue to be decided by the trier of fact. Conn. Code Evid. § 7-3 (a). An expert witness may not testify concerning the credibility of another witness or of a particular victim. See State v. Toccaline, 258 Conn. 542, 550 n.10, 783 A.2d 450 (2001). While an expert witness is precluded from testifying with regard to the credibility of a complaining victim, he or she may nevertheless testify concerning issues that may bear on a logical assessment of a victim’s credibility, particularly in cases where a minor is the alleged victim of sexual abuse. “[T]he consequences of the unique trauma experienced by minor victims of sexual abuse are matters beyond the understanding of the average person.” State v. Spigarolo, 210 Conn. 359, 378, 556 A.2d 112, cert, denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). Our law recognizes that expert testimony concerning certain behavior patterns of minor victims of sexual abuse in general may assist the jury in assessing the credibility of a particular complaining victim. In certain circumstances, such testimony has been deemed admissible on this ground. Id.

*515For example, in State v. Spigarolo, supra, 210 Conn. 359, our Supreme Court held that, “where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based on inconsistency, incompleteness or recantation of the victim’s disclosures pertaining to the alleged incidents, the state may offer expert testimony that seeks to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged incidents.” Id., 380. The court recognized a “critical distinction between admissible expert testimony on general or typical behavior patterns of minor victims and inadmissible testimony directly concerning the particular victim’s credibility.” Id., 379. Evidence of the latter variety is not admissible. See State v. Grenier, 257 Conn. 797, 805-806, 778 A.2d 159 (2001) (expert testimony that minor victim was “very credible” and had “experienced” sexual abuse deemed improper).

Here, the court permitted the state to present Radi-gan’s expert testimony concerning coaching only after it accurately observed that the defendant sought to impeach the victim on the basis that she had been coached. The testimony was of the same nature as expert testimony concerning the general behavioral characteristics of child abuse victims in disclosing alleged incidents of abuse. That is, it was specialized knowledge concerning the behavior of minor victims of sexual abuse that, in light of the defendant’s efforts to impeach the victim’s credibility, likely would assist the jury in assessing the victim’s credibility. As an expert in conducting forensic interviews, Radigan discussed certain behaviors typically exhibited by minors that have been coached and by parents who have coached their children. Radigan did not express an opinion as to whether the victim had been coached, whether the victim or her parents were credible or whether she believed that the victim had been sexually abused. Her *516opinion was relevant to the issue of the victim’s credibility, but did not constitute an assessment of the victim’s credibility.12

For the foregoing reasons, we conclude that the court’s evidentiary ruling did not reflect an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

State v. James W.
87 Conn. App. 494

Case Details

Name
State v. James W.
Decision Date
Feb 15, 2005
Citations

87 Conn. App. 494

Jurisdiction
Connecticut

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