LAVINE, J.
The defendant, Constantinos Antonaras, appeals from the judgment of conviction,
The jury reasonably could have found the following facts. In 1995, the victim, D,
On June 18, 1996, D was sent to the Children's Home of Cromwell (children's home), a residential treatment facility, for behavioral issues.
At about this time, when D was eleven years old, he ran into the defendant again. D was playing basketball at a park across the street from the defendant's residence on Orange Street in Hartford. The defendant was cleaning his car and D approached the defendant. The defendant then took D to batting cages and for ice cream. Afterward, the defendant gave D his cell phone number, which D would call from time to time. During the next two months, the defendant took D shopping, bought him clothes and sneakers, gave him money and took him roller skating. Although the defendant took D's cousins to the roller skating rink as well, he did not pay for their admission; he only paid for D.
In August, 1998, the defendant asked D to come to his house on Orange Street to help him change a tire. D arrived with two of his cousins, but the defendant told the cousins to wait outside. The defendant told D to sit down in the living room and turned on the television for him. As D was watching television, the defendant sat down next to D and began rubbing D's leg and telling him that he liked him. The defendant also began "rubbing on [D's]
Approximately one week later, the defendant again took D and his two cousins roller skating. The defendant dropped the cousins off afterward and took D to get ice cream in West Hartford. The defendant then drove to a parking lot, pulled down his pants and began rubbing and kissing D. The defendant performed oral sex on D, and D performed oral sex on the defendant. Approximately one week after the first parking lot incident, the defendant took D back to the parking lot in West Hartford and had anal sex with him. The defendant then performed oral sex on D.
On Christmas day, 1998, the defendant took D back to the parking lot and gave him a CD player, sneakers and money as gifts. The defendant and D then performed oral sex on each other. That same day, the defendant took D, his two cousins and one of D's friends to a restaurant at the Mohegan Sun casino. The defendant paid for everyone's meal. Between August, 1998, and May, 1999, the defendant took D to the West Hartford parking lot for sex approximately ten times. On one occasion, while D's two cousins were roller skating, the defendant took D to a parking lot in Vernon, where the defendant had oral and anal sex with him.
On May 4, 1999, D was sent to the children's home a second time.
D left the children's home on August 1, 2000, when he was fourteen years old, and moved in with the defendant, D's uncle and D's cousin. The defendant continued providing D with gifts and money. D and the defendant slept in the same room in separate beds and had oral sex with each other "[a] lot." Whenever D would attempt to refuse the defendant's advances, the defendant would "work his way into it" by offering D favors. In October, 2000, the defendant rented an apartment on Barnard Street in Hartford, where only D and the defendant resided. At Barnard Street, the defendant and D had sex "about three or four times a week." The defendant also played pornographic movies for D at the residence. On April 12, 2001, the defendant became D's temporary legal custodian.
On January 15, 2002, D was sent to the Long Lane School, a juvenile detention facility, for stealing a car and for truancy. On February 14, 2002, the defendant was appointed D's legal guardian, after D and the defendant convinced D's father to consent. On August 16, 2002, when D was sixteen years old, he left the Long Lane School and moved in with the defendant in Wethersfield. At the Wethersfield residence,
In May, 2004, D reported the defendant's sexual abuse to the department of children and families (department).
The defendant first claims that the court abused its discretion in admitting the testimony of two witnesses who alleged that he sexually abused them when they were younger. We disagree.
The following additional facts and procedural history are relevant to this claim.
The state filed written proffers of the expected testimony of C and R regarding uncharged sexual misconduct perpetrated by the defendant.
At the hearing, C testified that he met the defendant when he was nine or ten years old at the park across the street from the defendant's residence, on Orange Street in Hartford. C lived near the park and played sports there. C and the defendant became friends, and the defendant drove C and C's brother to soccer games. C eventually worked for the defendant and the defendant's brother at their respective restaurants. The defendant took C to "the casino" once, played basketball with him, bought him a chain necklace from Greece and allowed him to eat for free at the restaurants. The defendant and C also talked on the telephone.
When C was between twelve and fifteen years old, he was riding in the defendant's vehicle after having worked at his restaurant. The two were traveling to the defendant's apartment, where C was staying for the night. As the defendant was driving, "[h]e slowly ran his hand down the side of [C's] leg until [C became] aroused," and then he began rubbing C's penis with his hand underneath C's shorts and underwear. This continued for approximately ten minutes until they arrived at the defendant's apartment. C was "in shock,"
R testified at the hearing as follows. R met the defendant when he was eleven or twelve years old at his aunt's house. R left his aunt's house with the defendant to go to Foxwoods Casino (Foxwoods).
A few weeks after the Foxwoods trip, the defendant picked up R from his house and took him to the defendant's residence. R was watching a basketball game on the defendant's couch when the defendant sat next to him. The defendant placed his hand around R's neck, lifted up his shirt and began rubbing his stomach. The defendant then asked to see R's "trail," which referred to R's "pubic hairline going down" to R's genitals. R attempted to stand up, but the defendant forced him to sit back down and continued his attempt to see R's "trail." R then stood up, unlocked the defendant's door and asked the defendant to take him home.
On another occasion, the defendant bought R a wrestling suit, and after R tried it on the defendant told R to weigh himself. R weighed himself wearing only his boxer shorts, but the defendant asked R "to take off [his] boxers because that's how the wrestlers do it." R did not take his boxer shorts off because he felt uncomfortable. On another occasion, the defendant played a pornographic video for R and stated: "I'm gonna show you how to live life." The defendant also showed R a Playboy magazine. R felt uncomfortable and told the defendant to take him home, which the defendant did. After this incident, R stopped seeing the defendant.
On May 1, 2007, after hearing argument from both the state and the defendant, the court admitted the uncharged misconduct testimony of C and R as common scheme or plan evidence. As to R, the court concluded that "the issue of remoteness does not really present itself ... because the time period is so close to the time period [of the abuse perpetrated on D]. So, there is no issue of remoteness there. Similarity of the conduct is almost a template placed upon its — over its exact replica. Not only the appearances of the complainants [are] the same, the ages [were] the same, the ethnicity was the same. The defendant knew both families. Each had a trip to the casino, gifts of sports equipment, the same initial type of overtures, sexual overtures, lived in the same neighborhood, [the] defendant had been involved with [R's] family since [he] was a baby."
The court then noted the differences between D and R: "[R] was not employed at a restaurant, [and] it was a different
The court then concluded: "Now, in the case of [C] ... we have the issue of remoteness. However, remoteness itself is not an answer. We do have exquisite similarity in the general identity of that victim in age, ethnicity, gender, appearance, at least what his current appearance would lead you to believe. We have the same age of initial contact, nine or ten, same place, Orange Street park, the same type of mentoring relationship. Here, the defendant becoming his soccer coach, playing basketball together, [C] helping out at the restaurant, getting paid and fed, a trip to the casino, at least one gift, similar initial sexual overtures as far as the type of touching, the defendant knowing the victim's family.
"And, of course, now we know some of the differences: no trips to the motel, no actual guardianship, and, of course, the touchings stopped. But that's after there was resistance on the part of [C]. Now, I realize that [C] came from a more intact family than [D]. But it was still a family that allowed their nine or ten year old son to be taken to the casino by the defendant without repercussions.... There's the same type of touching during their car ride, same type of sports and mentoring. So, on balance, the template involving the conduct testified to by [C], perpetrated by the defendant, sufficiently similar, exquisitely similar, that in this court's opinion [it] overcomes any issue of remoteness and [is] more probative than prejudicial." C and R subsequently testified in front of the jury consistent with the state's offer of proof.
"The admission of evidence of... uncharged misconduct is a decision properly within the discretion of the trial court.... [E]very reasonable presumption should be given in favor of the trial court's ruling.... [T]he trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.... [T]he burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant ... [who] must show that it is more probable than not that the erroneous action of the court affected the result." (Internal quotation marks omitted.) State v. Heck, 128 Conn.App. 633, 638, 18 A.3d 673, cert. denied, 301 Conn. 935, 23 A.3d 728 (2011).
We begin our review of the defendant's claim by detailing the requirements for admitting evidence of uncharged sexual misconduct. At the time of the defendant's trial, evidence of uncharged sexual misconduct was admissible under the liberal common scheme or plan standard, which focused on "the similarity shared by the charged and uncharged crimes, rather than the existence of a genuine plan in the defendant's mind...." State v. DeJesus, 288 Conn. 418, 467, 953 A.2d 45 (2008). Subsequent to the defendant's trial, our Supreme Court, in DeJesus, created an exception, for sex crimes, to the general prohibition against the admission of uncharged misconduct evidence for propensity purposes. Our Supreme Court explained, however, that the same standard that governed the liberal common scheme
As explained in DeJesus, "[f]irst, 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. Relevancy is established by satisfying the liberal standard pursuant to which evidence previously was admitted under the common scheme or plan exception. Accordingly, evidence 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." (Internal quotation marks omitted.) Id., at 473, 953 A.2d 45. "Second, evidence of uncharged misconduct is admissible only if its probative value outweighs the prejudicial effect that invariably flows from its admission.... 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." (Citations omitted; internal quotation marks omitted.) Id., at 473-74, 953 A.2d 45.
On appeal, the defendant argues that the court improperly admitted the uncharged misconduct testimony of C and R.
As to the first of the three relevancy prongs, we compare the time "with reference to the period between the cessation of the prior misconduct and the beginning of the charged sexual abuse." State v. Romero, 269 Conn. 481, 499 n. 20, 849 A.2d 760 (2004). C testified that the sexual misconduct occurred when he was between twelve and fifteen years old, which would have been between 1986 and 1989. D testified that he first was abused by the defendant in August, 1998. Accordingly, the interval between cessation of the prior misconduct and the beginning of the
In Romero, our Supreme Court also cited approvingly cases from other jurisdictions in which courts "have concluded that evidence of prior misconduct was admissible in instances in which the prior misconduct was far more remote in time than [nine years]. See United States v. Meacham, 115 F.3d 1488, 1494-95 (10th Cir. 1997) (prior sexual misconduct took place thirty years earlier); State v. McGuire, 135 Idaho 535, 539-40, 20 P.3d 719 (App. 2001) (twenty-three years); Smith v. State, 745 So.2d 284, 289 (Ala.Crim.App.1998) (time gaps of between eighteen to twenty years and fourteen to twenty years); State v. Christopherson, 482 N.W.2d 298, 302 (S.D.1992) (seventeen years)." State v. Romero, supra, 269 Conn. at 499 n. 21, 849 A.2d 760. Moreover, "[e]ven a relatively long hiatus between the charged and uncharged misconduct ... is not, by itself, determinative ... especially when there are distinct parallels between the prior misconduct and the charged misconduct." (Citation omitted.) State v. Jacobson, supra, 283 Conn. at 633, 930 A.2d 628; see also State v. Kulmac, 230 Conn. 43, 62, 644 A.2d 887 (1994) ("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"). We conclude that the time gap between the abuse of C and D is not too remote to render the uncharged misconduct irrelevant to prove that the defendant had a propensity to engage in the charged abuse, particularly in light of the other two prongs.
Regarding similarity of the uncharged misconduct to the charged abuse, the second prong, the defendant cites State v. Gupta, 297 Conn. 211, 998 A.2d 1085 (2010), and State v. Ellis, 270 Conn. 337, 852 A.2d 676 (2004), for the proposition that the uncharged misconduct against both C and R was too dissimilar in frequency and severity to the abuse of D. The state argues that the defendant engaged in a similar pattern of behavior with regard to C, R and D in order to befriend them, gain their trust and, ultimately, sexually seduce them. The state further argues that we should look to the initial sexual advances of the defendant, because "it is reasonable to infer that the only reason the defendant's sexual behavior with [C and R] was `less severe' than that with [D] was that [C and R] rebuffed the defendant and stopped seeing him."
In a number of cases, our Supreme Court and this court have looked to the initial sexual advances of the defendant in comparing the similarity of the uncharged misconduct to the charged abuse, especially when the uncharged misconduct witnesses rebuffed the advances or the defendant otherwise was prevented from abusing them. In State v. McKenzie-Adams, 281 Conn. 486, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S.Ct. 248, 169 L.Ed.2d 148 (2007), for example, the defendant argued that his uncharged sexual misconduct with R.S. did not satisfy the similarity of abuse prong "because it was less severe than his sexual misconduct with N.R. and P.L.," the two victims of the charged abuse. Id., at 530, 915 A.2d 822. The court explained that "the defendant's sexual misconduct with R.S. was similar to the initial stages of his sexual
In fact, in State v. Jacobson, supra, 283 Conn. 618, 930 A.2d 628, our Supreme Court concluded that the uncharged misconduct was sufficiently similar to the charged abuse even though the defendant never actually sexually abused the witness. The court explained that in light of the defendant's conduct toward the witness — including purchasing gifts for him and spending "considerable time with him, frequently in connection with [the witness'] athletic activities" — "the jury reasonably could have concluded that the defendant was grooming [the witness] for sexual abuse, as he had with [the victims of the charged abuse]. The defendant befriended [the witness] and, after gaining his trust and confidence, tested the limits of his tolerance for the defendant's inappropriate conduct by inviting him to his home and sleeping with him in the same bed. Although the defendant never sexually assaulted [the witness], the jury could have concluded that the defendant did not do so only because [the witness' mother] terminated the defendant's relationship with her son upon learning that the defendant had slept with him in the same bed." Id., at 634-35, 930 A.2d 628.
In State v. Ellis, supra, 270 Conn. at 337, 852 A.2d 676, our Supreme Court made clear that frequency and severity are factors relevant to the similarity of abuse analysis; id., at 359-60, 852 A.2d 676; but the court also looked to the location of the abuse and whether it occurred in the vicinity of others. The court noted that the abuse of one of the victims, Sarah S., took place inside her home when no one else was present, while the abuse of the other three victims took place at a sports facility and "all except one occurred in the vicinity of other persons." Id., at 359, 852 A.2d 676. Additionally, the court went out of its way to explain that the initial abuse of Sarah S. was not similar to the initial abuse of the other victims. Id., at 363-64, 852 A.2d 676. Most importantly, the court noted that the defendant had a much different relationship with Sarah S. than with the other victims: "Sarah S., unlike the other girls, was not a member of [a] softball team [the defendant coached], did not have frequent and continuous contact with the defendant as a player, did not take weekly private lessons with the defendant over a period of several years, did not develop a close personal relationship with the defendant and did not regard him as a confidant. Even more significantly, she did not feel compelled, as did the other girls, to cultivate or continue a relationship with the defendant following the abuse
In this case, as intimated by the trial court, the defendant engaged in a similar grooming process with D, C and R. He provided them with gifts, food and, with D and C, work. He was involved in sports with all three, fostering early contact with D and C at the park across from the defendant's Orange Street residence, taking D to batting cages, coaching C in soccer, and purchasing R a wrestling suit. Additionally, he took all three boys to a casino at least once.
The defendant also engaged in similar initial sexual overtures. He made his initial advances either in his vehicle or residence when he was alone with the victims. He began by rubbing the legs of his victims to test their receptiveness to his advances before escalating to more intimate contact. He also attempted to entice D and R with pornography to further his sexual misconduct. Although the defendant is correct that the abuse perpetrated on D was far more frequent and severe than that of C and R, the jury reasonably could have inferred that this was true only because C and R rebuffed the defendant and stopped seeing him, while D did not. See State v. Jacobson, supra, 283 Conn. at 635, 930 A.2d 628; State v. McKenzie-Adams, supra, 281 Conn. at 531, 915 A.2d 822. In our view, under the circumstances of this case, the fact that C and R suffered less frequent and severe sexual misconduct than did D "does not illustrate a behavioral distinction of significance." (Internal quotation marks omitted.) State v. McKenzie-Adams, supra, at 531, 915 A.2d 822; State v. James G., supra, 268 Conn. at 394, 844 A.2d 810. We therefore conclude that the evidence of uncharged misconduct was sufficiently similar to the charged abuse.
As to the third prong, the similarity between the witnesses and the victim, the defendant's principal argument
Although, over time, the relationship between the defendant and D developed into a familial type of relationship, when the abuse started, the defendant's relationship with D closely resembled his relationships with C and R. All three boys were similar in age when they first met the defendant. D met the defendant when he was nine years old, C met the defendant when he was nine or ten years old, and R met the defendant when he was eleven or twelve years old. The sexual misconduct first occurred when the boys were of similar ages as well: D was eleven years old, C was between twelve and fifteen years old, and R was eleven or twelve years old. As stated by the trial court, D, C and R have a similar appearance. Additionally, as mentioned, the defendant fostered his relationships with the boys in a similar fashion. Therefore, D, C and R were sufficiently similar victims, when the defendant's abuse of them began, so that the evidence of the uncharged misconduct was relevant to prove that the defendant had a propensity to engage in the aberrant or compulsive sexual abuse with which he was charged.
The defendant next argues that the probative value of the uncharged misconduct evidence did not outweigh its prejudicial effect because "evidence of uncharged misconduct that involves the alleged sexual abuse of a child is extremely prejudicial." We reject the defendant's argument. Although evidence of child sex abuse is undoubtedly harmful to the defendant, that is not the test of whether evidence is unduly prejudicial. Rather, "evidence is excluded as unduly prejudicial when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence." (Emphasis added; internal quotation marks omitted.) State v. James G., supra, 268 Conn. at 399, 844 A.2d 810.
The defendant's second claim is that the trial court improperly instructed the jury
After C testified in front of the jury and just before R testified, the court provided the following instruction to the jury: "Now, ladies and gentlemen, I have another specific instruction for you that will be repeated and expanded at the time of the final instruction. Before we hear from the next witness — and having just heard from the last witness, the evidence that has been testified to and I anticipate will be testified to about the — by the next witness involve an assertion of prior acts of misconduct on the part of the defendant. That evidence is not admitted to prove bad character of the defendant or the defendant's tendency to commit criminal acts. The evidence is offered solely in an attempt to establish a common plan or scheme in the commission of criminal acts. You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity. You may consider such evidence if you believe it and further find that it logically, rationally, and conclusively supports the issue for which it is being offered by the state, but only as it may bear upon those issues. And that is the assertion of a common plan or scheme to sexually abuse young men. On the other hand, if you do not believe this evidence or even if you do, if you find it does not logically or rationally or conclusively support the issues of common plan or scheme for which it is being offered, you should not consider this testimony for any purpose whatsoever." The court also provided a similar instruction to the jury after the close of all the evidence.
On appeal, the defendant argues that because the court instructed the jury that it could not use the uncharged misconduct evidence for propensity purposes, but could only use it as evidence of a common plan or scheme, the instruction was improper in that it conflicted with State v. DeJesus, supra, 288 Conn. at 418, 953 A.2d 45.
In DeJesus, our Supreme Court held that "to minimize the risk of undue prejudice to the defendant, the admission of evidence of uncharged sexual misconduct under the limited propensity exception
As explained in State v. Johnson, 289 Conn. 437, 457, 958 A.2d 713 (2008), overruled in part on other grounds by State v. Payne, 303 Conn. 538, 548, 34 A.3d 370 (2012): "In the present case, even if the evidence of each murder was not cross admissible to prove intent or a common plan or scheme, the only potential harm that could arise from the admission of that evidence for either of those purposes was that the jury could infer that, because the defendant previously had killed women in the course of satisfying his sexual proclivities, he had done so again. Under DeJesus and [State v. Snelgrove, 288 Conn. 742, 766, 954 A.2d 165 (2008)], however, that evidence is admissible for that purpose.... Accordingly, even if we assume that the evidence was improperly admitted for other purposes, any impropriety was harmless." (Citations omitted.) Just as the admission of uncharged misconduct evidence for common scheme or plan purposes is harmless, we conclude that the trial court's instruction that the jury could consider the uncharged misconduct as evidence of a common scheme or plan was harmless.
The defendant next claims that the court improperly failed to inquire as to a conflict of interest involving defense counsel and the Hartford police department. Specifically, the defendant argues that defense counsel's statement, during individual voir dire of a prospective juror, that he sometimes represents Hartford police officers and "`some of the union'" required the court to conduct a conflict of
The defendant's claim is unpreserved because neither the defendant nor defense counsel claimed at trial that defense counsel may have had a conflict of interest in light of his ongoing relationship with the Hartford police department.
The judgment is affirmed.
In this opinion the other judges concurred.