LAVINE, J.
The defendant, Jesse Paredes, appeals from the judgment of conviction, rendered after a jury verdict, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1) and (5), and two counts of risk of injury to a child in violation of General Statutes
The jury reasonably could have found the following facts. In May, 2008, the thirteen year old female victim was living in the junior unit of a residential treatment center (center) that provided twenty-four hour supervision for children with a variety of issues. Members of the center staff were responsible for assisting the children with the activities of daily living and ensuring that each child complied with his or her treatment plan. At the time, the defendant was employed as a per diem child development assistant at the center. His responsibilities required him to ensure the children's safety and to supervise their daily activities.
On the afternoon of May 4, 2008, the defendant was one of three staff members on duty in the junior unit. While the other two staff members were engaged in activities with three other children, the defendant suggested to the victim that they take a walk. Instead of taking her for a walk, the defendant took the victim to the "sensory room."
When they entered the lounge, the defendant informed another staff member, Melissa Ann Levack, that he and the victim had taken a walk. Levack thought that the defendant's comment was unusual because he ordinarily told staff members that he was taking a walk with a child before, not after, the fact.
A staff shift change occurred at approximately 3 p.m. Justin Paxton, the junior unit supervisor, observed that the victim's demeanor was abnormal. The victim was standoffish rather than acting as her usual friendly, boisterous self. Paxton approached the victim and asked if something was bothering her. The victim did not want to discuss "it...." After conferring with another staff member, Paxton again approached the victim, this time with another child who encouraged the victim to talk to Paxton. The victim responded that
At 11 p.m. that day, the victim was taken to a hospital. Before she went to the hospital, her underwear was placed in a plastic bag; at the hospital, it was given to a police officer. The victim was referred to the Connecticut Children's Medical Center where Renee Richard, a registered nurse trained as a sexual assault nurse examiner, obtained the victim's medical history and biological samples, which also were given to the police. During her examination of the victim, Richard discovered a tear in the victim's hymen, which caused bleeding. James Parker, a physician, testified that clinical observations of the victim's injuries were consistent with the victim's report of sexual assault.
The police subsequently seized a beanbag chair from the sensory room because it contained what appeared to be potential evidence. The soiled portion of the beanbag chair and the victim's underwear were sent to the state forensic laboratory for testing. Testing results revealed human seminal fluid consistent with a DNA profile consistent with the defendant's on the victim's underwear and a mixed biological sample with DNA profiles consistent with the defendant's and the victim's on the beanbag chair. Additional facts will be set forth as necessary.
The defendant's first claim is that the court failed to order a mistrial in response to a witness' report of inadmissible hearsay by the victim in violation of his right to due process.
The following facts are relevant to this claim. Paxton testified that on May 5, 2008, the victim went about her usual activities at the center and that he was observing her during breakfast. When asked to describe the victim's behavior at that time, Paxton testified that the victim "was really troubled. She, at one point, actually kind of stood up and started screaming, Jesse [the defendant] raped me last night, Jesse raped me last night." Defense counsel objected generally to the testimony and asked that it be stricken from the record.
The court held a sidebar conference and then excused the jury. The court stated for the record: "We had a sidebar. [Defense counsel] indicated that the nature of his objection was that the response went beyond the question, that the response was outside the parameters of the question and elicited more information than what was called for. The question I had is, did you watch her behavior in the cafeteria, what was her behavior and what did you observe? The question didn't specifically call
Thereafter, the following colloquy transpired between the court and defense counsel:
"The Court: ... I will instruct the jury that they're to disregard the last — to disregard the question and do you want me to remind them of the statement or just to tell them that they are to disregard the last answer?
"[Defense Counsel]: Your Honor, I would ask the court to remind them of the answer and to indicate that is — you have ruled on that, that is stricken ... and they're not to consider that.
"The Court: That I'm striking the portion of the response that-you want me to tell them that I'm striking the portion of the response that [the victim] said, `Jesse raped me'?
"[Defense Counsel]: Yes, Your Honor.
"The Court: And you want me to use those words, specifically?
"[Defense Counsel]: Yes, Your Honor."
When the jury returned to the courtroom, the court stated, in part: "Ladies and gentlemen of the jury, I'm going to instruct you that the witness' response to the last question, the portion of the response that stated that [the victim] yelled, `Jesse raped me,' that portion of the response is stricken from the record. You're not to consider that."
On appeal, the defendant claims that the court's failure to order a mistrial on the basis of Paxton's testimony that the victim stated, "Jesse raped me," violated his right to due process. The defendant properly acknowledges that he did not request a mistrial and therefore that the issue is not preserved for our review. He argues, however, that his claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the record is adequate for review, the claim is of constitutional magnitude, the constitutional violation clearly exists and deprived him of a fair trial, and the error is not harmless beyond a reasonable doubt. The state argues that the defendant's claim is not reviewable because he waived it.
"[W]aiver is the intentional relinquishment or abandonment of a known right." (Internal quotation marks omitted.)
Because the procedural posture of this case is similar to that in State v. Wells, 111 Conn.App. 84, 957 A.2d 557, cert. denied, 289 Conn. 958, 961 A.2d 423 (2008), that case controls our decision here. In Wells, during its deliberations, the jury found marijuana that had not been admitted into evidence intermingled with properly admitted evidence. Id. at 87-88, 957 A.2d 557. After the jurors sent the court a note informing it that they found the marijuana in a glove in the evidence box, the court informed "both parties that it would instruct the jury ... not to consider it; it's not evidence in the case. But I have to welcome comments.... The defendant stated that he would agree to such an instruction. The court then specifically instructed the jury not to consider the marijuana.... It's just not evidence in the case, and that's how I'm going to instruct you on that." (Internal quotation marks omitted.) Id. at 87, 957 A.2d 557.
On appeal, the defendant in Wells claimed that the jury's exposure to the marijuana violated his constitutional right to a fair trial, and that the court erred in failing, sua sponte, to declare a mistrial. Id. The defendant acknowledged that he had not preserved the claim at trial and sought review pursuant to Golding, or, in the alternative, reversal pursuant to the plain error rule embodied in Practice Book § 60-5. This court concluded that the defendant had waived his constitutional claim "when he expressly agreed with the court's proposed jury instruction and failed to proffer any type of objection after that instruction was given to the jury." Id. at 89, 957 A.2d 557.
"One of the required conditions under Golding is that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.... The appellate tribunal is free ... to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances.... As the reviewing court, we will review [the claim] and arrive at a conclusion as to whether the alleged constitutional violation clearly exists and whether it clearly deprived the defendant of a fair trial.... We conclude that because the defendant waived the claim, there is no clear, existing constitutional violation, and, thus, the claim fails to satisfy the third prong of Golding. Additionally, on the basis of the defendant's waiver, we are not persuaded that plain error exists with regard to this claim." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.
In this case, the court informed the defendant of the curative instruction it intended to give, and defense counsel requested that the instruction include a recitation of Paxton's objectionable testimony. The court gave the instruction as requested by defense counsel. "Absent evidence to the contrary, a jury is presumed to have followed the court's instructions." State v. Banks, 117 Conn.App. 102, 119, 978 A.2d 519, cert. denied, 294 Conn. 905, 982 A.2d 1081 (2009). Because the defendant waived his claim at trial, we will not review it on appeal, nor will we reverse his conviction on the basis of his claim pursuant to
The defendant's second claim is that the court violated his right to confrontation by admitting the video of the victim regarding the sexual assault. Again, the defendant failed to preserve his claim at trial.
The following facts pertain to the defendant's claim. At trial, the state placed into evidence a redacted video of an interview that Suzanne Jolissaint, a forensic interviewer at Aetna Foundation Children's Center at Saint Francis Hospital and Medical Center, had with the victim. Jolissaint testified that, in her position, she interviews children and teenagers when there is an allegation of abuse. She works with a team of medical providers, mental health professionals and social workers. Her role, for which she is specifically trained, is to talk to a child or teenager about what may have happened and to provide that information to a medical provider, as well as a therapist, so that the child or teenager receives proper treatment. Jolissaint's interview of the victim was part of a diagnostic procedure in the chain of treatment that was reviewed by physicians for the purpose of recommending treatment for the victim.
On appeal, the defendant claims that his constitutional right to confrontation was violated because the video contained testimonial hearsay of the victim.
The judgment is affirmed.
In this opinion the other judges concurred.