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State v. Adam P.
STATE OF CONNECTICUT v. ADAM P.*
(SC 20849)
McDonald, D’Auria, Mullins, Ecker and Dannehy, Js.…
Syllabus
Convicted of multiple counts of sexual assault in the first degree and risk
of injury to a child in connection with the sexual abuse of the minor victims,
D and T, the defendant appealed to this court. He claimed, inter alia, that
the trial court had violated his due process right to a fair trial by instructing
the jury, in accordance with this court’s directive in State v. Daniel W. E.
(322 Conn. 593), that it was not to consider the victims’ approximately
nine year delay in officially reporting the abuse at issue in assessing their
credibility. Held:
This court overruled that portion of Daniel W. E. that modified the constancy
of accusation doctrine, as set forth in State v. Troupe (237 Conn. 284), and
returned to the standard previously articulated in Troupe, which provides
that a person to whom a sexual assault victim has reported the assault may
testify only with respect to the fact and timing of the victim’s complaint,
that constancy evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes, and that a defendant is entitled to
an instruction that a victim’s delay in reporting is a factor that the jury can
consider in evaluating the victim’s credibility.
This court concluded that Troupe, along with other avenues available to
negate juror biases, such as expert testimony and the application of the
rules of evidence, sufficiently balanced the defendant’s interest in being
free from the undue prejudice that may result from the presentation of
multiple constancy witnesses with the state’s interest in overcoming potential jury bias against sexual assault victims who delay in reporting.
The defendant was not entitled to a new trial because any error with respect
to the trial court’s instructing the jury in accordance with Daniel W. E. was
harmless, as any such error was not constitutional in nature and it was
not reasonably probable that the instruction misled the jury in arriving at
its verdict.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
… The listing of justices reflects their seniority status on this court as of
the date of oral argument.
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State v. Adam P.
The jury charge, as a whole, directed the jury to consider the victims’ general
credibility on the basis of factors other than their delay in reporting and
emphasized that it was the state’s burden to prove the requisite elements
of the charged offenses, it was not reasonably probable that the jury believed
that the challenged instruction precluded it from considering the victims’
credibility more generally, neither the jury’s verdict nor the primary theory
of defense turned on the victims’ delayed reporting, and the state’s case
was strong.
The trial court did not abuse its discretion in permitting D to testify that
the defendant told her that he had played the same sex ‘‘games’’ with his
daughter that he played with D and T, as D’s testimony was probative of
the defendant’s attempts to groom or pressure her to engage in sexual
intercourse with him, and the trial court took measures to mitigate any
prejudicial effect of D’s testimony.
(One justice concurring in part and dissenting in part)
Argued September 26, 2024—officially released February 11, 2025
Procedural History
Substitute information charging the defendant with
seven counts of the crime of sexual assault in the first
degree and eight counts of the crime of risk of injury
to a child, brought to the Superior Court in the judicial
district of Fairfield and tried to the jury before Dayton,
J.; verdict and judgment of guilty of five counts of sexual
assault in the first degree and eight counts of risk of
injury to a child, from which the defendant appealed
to this court. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Joseph T. Corradino, state’s
attorney, and Edward L. Miller, senior assistant state’s
attorney, for the appellee (state).
Opinion
D’AURIA, J. The defendant, Adam P., appeals directly
to this court from his conviction of five counts of sexual
assault in the first degree in violation of General Statutes § 53a-70 (a) (2), four counts of risk of injury to a
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State v. Adam P.
child in violation of General Statutes § 53-21 (a) (1),
and four counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2). He first claims that
the trial court violated his due process rights when,
based on our decision in State v. Daniel W. E., 322
Conn. 593, 629,
142 A.3d 265 (2016), it instructed the
jury not to consider the delay of the twin minor victims,
D and T, in reporting the defendant’s sexual abuse when
assessing their credibility because that credibility was
central to the outcome of the case, therefore misleading
the jury. He then claims that the trial court abused its
discretion by permitting D to testify that the defendant
told her that he previously had played the same sexual
‘‘games’’ with his daughter, A, that he was playing at
the time with the victims.
We conclude that we must overrule Daniel W. E., to
the extent that it modified our constancy of accusation
doctrine set forth in State v. Troupe, 237 Conn. 284,
304–305, 677 A.2d 917 (1996), so that jurors understand
more precisely the parameters for when and how they
may consider a victim’s delayed reporting when assessing
the victim’s credibility. Further, we hold that the alleged
instructional error was nonconstitutional in nature and
that, based on the charges against the defendant and
the record in its entirety, it was not reasonably probable
that the trial court’s Daniel W. E. instruction misled
the jury in arriving at its verdict. Finally, we reject the
defendant’s second claim and conclude that the trial
court did not abuse its discretion by permitting D to
testify that the defendant had told her that he played
the same sexual ‘‘games’’ with A that he had with the
victims. We therefore affirm the trial court’s judgment.
We summarize the facts that the jury could have
reasonably found, and the relevant procedural history,
as follows. From 2005 to 2013, the defendant was in a
romantic relationship with the victims’ mother, Q. During most of that time, the defendant lived with Q, D
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State v. Adam P.
and T, first in Bridgeport, and then in Stratford. He did
not live with them during summers, when the victims
stayed with extended family in South Carolina, or for
ten months in 2010, when Q was evicted from her Stratford apartment.
When the defendant lived with the victims, Q was
rarely home because she often worked twelve hour
shifts, seven days a week, as a nursing assistant. While
Q was at work, the defendant, who was unemployed,
looked after the victims. There were other adults in the
home intermittently during this period, with one adult
living with Q and the victims for three years.
The defendant sexually abused the victims, beginning
when they were five years old. At trial, the victims
described graphic incidents in which the defendant
engaged in cunnilingus, fellatio, vaginal-penile intercourse, and other sexual contact with the victims, individually or simultaneously, as well as showed them
pornography. The defendant described the sexual abuse
as ‘‘a game’’ to the victims.
The defendant continued to sexually abuse the victims until he moved to North Carolina after he and Q
had ended their relationship. The victims were eleven
years old when the abuse ended. They never told anyone
about it while it was happening. After the breakup, Q
moved to a different location in North Carolina than
the defendant and sent the victims to live with extended
family in South Carolina. Approximately two years later,
the victims joined Q in North Carolina. Q and the defendant kept in touch during this period, and, in 2017, Q
asked the victims, then almost fourteen years old, how
they would feel about the defendant’s coming to live
with them again. It was then that the victims disclosed
to Q that the defendant had sexually abused them. Q
did not report the victims’ disclosure to the police but
cut off contact with the defendant.
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State v. Adam P.
The victims’ behavior changed in the months following their disclosure to Q. D struggled at school, engaged
in self-harm, ran away from home, and researched sex
trafficking. T became withdrawn. D was hospitalized
for a mental health crisis, at which point she told a
hospital worker that the defendant had sexually abused
her. The hospital worker reported this disclosure to the
North Carolina authorities, who investigated the claims
and, because the incidents had taken place in Connecticut, shared the relevant forensic interviews and medical
evaluations with Connecticut law enforcement. The
defendant was then arrested in North Carolina and brought
back to Connecticut to stand trial.
The defendant was charged with seven counts of
sexual assault in the first degree and eight counts of
risk of injury to a child. More specifically, the defendant
was charged with two counts of sexual assault in the
first degree based on an incident involving sexual intercourse with the victims in the apartment where they
lived in Bridgeport. The additional five counts of sexual
assault in the first degree involved incidents in the apartment where they lived in Stratford. Four of the eight
risk of injury to a child charges were based on the
events in Bridgeport; the other four were based on the
Stratford incidents.
The defendant’s defense at trial was that he had never
abused the victims and that they fabricated their accusations to maintain Q’s attention once it became apparent
to the victims that the defendant might return to live
with them. He advanced this defense on cross-examination by demonstrating his lack of opportunity to assault
the victims, the victims’ motive to fabricate to gain Q’s
attention, and the lack of physical evidence suggesting
sexual abuse. Following the close of evidence and the
parties’ closing arguments, and consistent with our
decision in State v. Daniel W. E., supra,322 Conn.
629, the trial court’s charge to the jurors included an
instruction that D and T’s eight year delay in reporting
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State v. Adam P.
the sexual abuse ‘‘should not be considered by you in
evaluating their credibility.’’ The defendant previously
had objected to this instruction outside the jury’s presence, claiming that it unfairly undermined his primary
defense at trial that the victims had fabricated their
accusations.
The jury found the defendant guilty on five counts
of sexual assault in the first degree and eight counts
of risk of injury to a child. It found the defendant not
guilty of two counts of sexual assault in the first degree,
both involving incidents of sexual intercourse with T
alone. The trial court rendered judgment of conviction
based on the jury’s verdict and sentenced the defendant
to a total effective term of forty-eight years of incarceration, twenty-five years of which was a mandatory minimum, followed by thirty-five years of special parole and
lifetime sex offender registration. This appeal followed.
I
The defendant first claims that the trial court violated
his due process rights when, consistent with Daniel
W. E., it instructed the jury not to consider the victims’
delay in reporting the abuse when evaluating their credibility. The contested instruction arose on the third day
of trial, when the court, while discussing its draft final
jury instructions with the parties outside the jury’s presence, noted that it intended to deliver a delayed
reporting instruction based on Connecticut Criminal
Jury Instructions 7.2-1.1 Defense counsel first objected
1
Instruction 7.2-1 of the Connecticut model criminal jury instructions
provides in relevant part: ‘‘If no constancy of accusation witness testified,
but there was a delay in officially reporting the offense,’’ the trial court
should instruct the jury that ‘‘[t]here was evidence in this case that the
complainant delayed in making an official report of the alleged sexual
assault. There are many reasons why sexual assault victims may delay in
officially reporting the offense, and to the extent the complainant delayed
in reporting the alleged offense here, the delay should not be considered
by you in evaluating (his or her) credibility.’’ Connecticut Criminal Jury
Instructions 7.2-1, available at https://jud.ct.gov/JI/Criminal/Criminal.pdf
(last visited February 4, 2025).
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State v. Adam P.
orally, arguing that the instruction would invade the
jury’s domain and bolster the testimony of the state’s
expert witness on the behavior of child victims of sexual
assault, Danielle Williams, who testified later that day
that sexual assault victims often delay reporting abuse.
The court overruled the objection, stating that delay
‘‘is not one of the things that should be considered
in evaluating credibility’’ and that, with respect to the
impact of the instruction on the expert testimony, ‘‘[the
jury is] told that . . . [expert] testimony is not binding
[on] them and they can disregard it completely.’’
Defense counsel then submitted a written objection
to the instruction, which the court overruled the following morning, again relying on Daniel W. E. After the
court ruled that the instruction was appropriate, the
jury heard counsels’ closing arguments and the court’s
final instructions, including the instruction now at issue,
which read in full: ‘‘There was evidence in this case
that [D and T] delayed in making an official report of
the alleged sexual assaults. There are many reasons why
sexual assault victims may delay in officially reporting
the offense, and, to the extent [D and T] delayed in reporting the alleged offense here, the delay should not be
considered by you in evaluating their credibility.’’
The defendant asks that we overrule the portion of
our decision in Daniel W. E. that directed trial courts
to give this instruction because requiring that jurors
disregard any delay in reporting abuse when assessing
the victims’ credibility constitutes an invasion of the
jury’s fact-finding role. He contends further that the
instruction improperly shifted the state’s burden of
proof to him by signaling to the jury that the victims’
delay in reporting was a symptom of the defendant’s
sexual abuse, which, in turn, undermined his fabrication
defense. He claims that the instruction necessarily harmed
him because the victims’ credibility was dispositive of
the case’s outcome, and the jury might have found him
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State v. Adam P.
not guilty on all counts if it could have considered the
delayed reporting when assessing his fabrication defense.
In response, the state argues that the trial court did
not provide the instruction in error because, read in
the context of the entire jury charge, the instruction
precluded the jury from considering only the fact of
the victims’ delay in reporting the sexual abuse, but
not the reasons for that delay, when assessing their
credibility. The state also asserts that, even if the instruction was erroneous, it was harmless because the jurors
understood, based on the evidence and arguments presented at trial, that they could consider the victims’
reasons for delay when assessing their credibility and
that the instruction did not inescapably signal that D and
T were, in fact, victims because they delayed reporting.
Regardless of whether the instruction was deficient in
the present case, however, the state joins the defendant
in requesting that we reconsider our holding in Daniel
W. E., specifically asking that we ‘‘overrule Daniel W.
E. in its entirety, scrap the apparently unique procedure
adopted therein, and return to the constancy doctrine
as it existed under Troupe.’’
We first address and reconsider the jury instruction
in Daniel W. E. that we directed trial courts to provide
when facing circumstances such as those the court
confronted in the present case, and we further overrule
the changes to the constancy of accusation doctrine
contained in that opinion. Next, we consider the impact
the instruction had on the defendant in the present case
and hold that any impact was harmless.
A
As noted, the instruction at issue derives from our
holding in Daniel W. E., which built on our constancy
of accusation doctrine. Any discussion of that doctrine
requires some context.
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State v. Adam P.
Beginning in the early nineteenth century, Connecticut common law allowed the state in a sexual assault
case to offer constancy evidence, which generally
included proof that the victim had disclosed the sexual
assault to third parties prior to making a formal complaint to authorities. See State v. Troupe, supra, 237
Conn. 294–99 (reciting history of constancy of accusation doctrine). The law permitted the court to admit
this evidence to negate the inference a fact finder might
draw, namely, that a complainant was fabricating her
accusation if she failed to officially report the alleged
sexual abuse promptly after the incident. Id., 296.
In Troupe, we rejected the defendant’s request that
we abandon our constancy of accusation doctrine altogether and held that the biases supporting that doctrine
still existed in our society. Id., 303. But we narrowed
the admissibility of constancy evidence to better serve
‘‘the interests of the defendant, the state and the victim,’’
who, in that case, was thirty years old at the time of
the crime. Id., 287, 303. Specifically, we held that a
constancy witness ‘‘may testify only with respect to the
fact and timing of the victim’s complaint; any testimony
by the witness regarding the details surrounding the
assault must be strictly limited to those necessary to
associate the victim’s complaint with the pending charge,
including, for example, the time and place of the attack
or the identity of the alleged perpetrator. . . . Thus,
such evidence is admissible only to corroborate the
victim’s testimony and not for substantive purposes.’’
(Footnote omitted.) Id., 303; see also Conn. Code Evid.
§ 6-11 (c) (codifying Troupe rule). To further accommodate the interests of the defendant, we directed that
‘‘the defendant is entitled to an instruction that any
delay by the victim in reporting the incident is a matter
for the jury to consider in evaluating the weight of the
victim’s testimony.’’ State v. Troupe, supra,237 Conn.
305.
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State v. Adam P.
In Daniel W. E., two decades after Troupe, we again
were asked to either modify or abandon the constancy
of accusation doctrine, particularly in child sexual
abuse cases. The defendant in Daniel W. E. first asserted
that the trial court’s jury instruction on the correct use
of constancy evidence misled the jury because it failed
to adequately distinguish constancy evidence from substantive proof. State v. Daniel W. E., supra,322 Conn.
608. He next claimed that, based on increased public
understanding of child sexual abuse along with other
evidentiary rules permitting the introduction of probative evidence, he was unfairly prejudiced by the hypothetically unlimited number of constancy witnesses that
the state could call under Troupe, even though only two
constancy witnesses testified at his trial. Id., 617–18.
We concluded that the instruction concerning the use
of constancy evidence did not mislead the jury and that
implicit juror biases against victims, including children,
who delay in officially reporting sexual abuse remained,
and, therefore, we declined to abolish the constancy of
accusation doctrine entirely. Id., 616, 618. We nevertheless modified the doctrine to alleviate ‘‘the potential
prejudice to defendants caused by the testimony of
multiple constancy witnesses.’’ Id., 618. To achieve ‘‘a
proper balance between the interests of the state and
the defendant’’; id., 630; and after considering ‘‘the myriad ways in which other courts have attempted to balance these competing interests,’’ we directed that ‘‘the
victim in a sexual assault case should continue to be
allowed to testify on direct examination regarding the
facts of the sexual assault and the identity of the person
or persons to whom the incident was reported. . . .
Thereafter, if defense counsel challenges the victim’s
credibility by inquiring, for example, on cross-examination as to any out-of-court complaints or delayed
reporting, the state will be permitted to call constancy
of accusation witnesses subject to the limitations estab-
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State v. Adam P.
lished in Troupe, as modified in this opinion. If defense
counsel does not challenge the victim’s credibility in
any fashion on these points, the trial court shall not
permit the state to introduce constancy testimony but,
rather, shall instruct the jury that there are many reasons why sexual assault victims may delay in officially
reporting the offense, and, to the extent the victim
delayed in reporting the offense, the delay should not
be considered by the jury in evaluating the victim’s
credibility.’’ (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 629. The parties accurately observe that this procedure, now at issue in this
appeal, is unique to this state.
We agree with both parties that we should reconsider
the balance we struck in State v. Daniel W. E., supra, 322
Conn. 617–30, in our attempt to mitigate the potential
prejudice to the defendant of multiple constancy of
accusation witnesses. We recognize that doing so necessarily implicates stare decisis, which ‘‘counsels that a
court should not overrule its earlier decisions unless
the most cogent reasons and inescapable logic require
it.’’ (Internal quotation marks omitted.) State v. Salamon, 287 Conn. 509, 519,
949 A.2d 1092 (2008). Appropriate reasons and logic include ‘‘[w]hen a previous
decision clearly creates injustice . . . .’’ (Internal quotation marks omitted.) Id., 520. Then, ‘‘[t]he court must
weigh [the] benefits of [stare decisis] against its burdens
in deciding whether to overturn a precedent it thinks
is unjust’’; (internal quotation marks omitted) id.; understanding that stare decisis is ‘‘not a mechanical formula
of adherence to the latest decision, however recent and
questionable, when such adherence involves collision
with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.’’ (Internal
quotation marks omitted.) Boys Markets, Inc. v. Retail
Clerks Union, Local 770, 398 U.S. 235, 241,
90 S. Ct.
1583,
26 L. Ed. 2d 199 (1970); see also State v. Moulton,
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State v. Adam P.
310 Conn. 337, 362 n.23,
78 A.3d 55 (2013). We ‘‘should
be especially wary of overturning a decision that involves
the construction of a statute’’; (internal quotation marks
omitted) State v. Bischoff, 337 Conn. 739, 762,
258 A.3d
14 (2021); or claims ‘‘expressly . . . raised and rejected
by this court’’; State v. Ray, 290 Conn. 602, 614,
966
A.2d 148 (2009); however, our decision in Daniel W.
E., involved an issue of judicial policy, specifically, how
to instruct the jury on a sexual assault victim’s delayed
reporting, and when constancy of accusation evidence
may be introduced at trial. Although we do not suggest
that we should ever treat the stare decisis doctrine
cavalierly, we are less reluctant under these circumstances to correct what we conclude to be an error of
judicial policy that might mislead the jury at trial. See
Payne v. Tennessee, 501 U.S. 808, 828,
111 S. Ct. 2597,
115 L. Ed. 2d 720 (1991) (‘‘[c]onsiderations in favor of
stare decisis are at their acme in cases involving property and contract rights . . . [and] the opposite is true
in cases . . . involving procedural and evidentiary
rules’’ (citations omitted)).
Although we reject the defendant’s argument that the
instruction we directed trial courts to deliver in Daniel
W. E. violates due process, as we will discuss in greater
detail in part I B of this opinion, we conclude that our
modification of the constancy of accusation doctrine
in Daniel W. E., although well-intentioned, unduly confuses what a jury may and may not consider when
assessing a victim’s credibility in a sexual assault case,
and conflicts with aspects of Troupe that we left
untouched. In light of these conclusions, we have determined that we will not allow principles of stare decisis
to prevent our reconsideration and reformulation of an
area of the law so important to the fairness of a sexual
assault trial.
The instruction at issue refers to evidence ‘‘that [D
and T] delayed in making an official report’’ of the
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State v. Adam P.
assaults and explains in the same sentence that there
are ‘‘many reasons why sexual assault victims may
delay,’’ all the while admonishing that any delay ‘‘should
not be considered by [the jury] in evaluating their credibility.’’ Considering the instruction closely, as the defendant requests, we understand how the sentence may
create confusion. The state argues that, because the
court’s instructions as a whole emphasized the jury’s
role in assessing general credibility and the state’s burden of proof, the jury understood that it could consider
the victims’ reasons for delay, but not the fact of the
delay itself, when assessing their credibility. Although
our cases consistently direct that we must read a trial
court’s charge as a whole, and not myopically, we do
not believe that the jury would understand that the
reasons why a victim might delay reporting sexual
assault are necessarily separate from the delay itself
based on the instructions provided, given that we have
trouble discerning or articulating this distinction convincingly ourselves.
Rather than only enjoining trial courts from providing
this portion of the instruction, which we had directed
courts to provide in Daniel W. E., we choose to overrule
the entirety of our modification of the constancy doctrine in that case because we are convinced that incompatibilities remain between Daniel W. E. and Troupe.
For example, Daniel W. E. instructs that, if the state is
permitted to call constancy of accusation witnesses,
the testimony of those witnesses should be governed
by the limitations established in Troupe. See State v.
Daniel W. E., supra,322 Conn. 629. But Troupe provides
that the defendant is entitled to an instruction that ‘‘any
delay by the victim in reporting the incident is a matter
for the jury to consider’’ when evaluating witness credibility. State v. Troupe, supra,237 Conn. 305. Reading
Troupe and Daniel W. E. together thus means that, if
a defendant challenges the victim’s credibility based on
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State v. Adam P.
a delay in reporting and the state then calls constancy
witnesses, the jury must be instructed to consider any
delay; but, if a defendant does not challenge the victim’s
credibility and the state therefore does not call constancy witnesses, the jury will be instructed to disregard
any delay. We cannot reconcile this disparate outcome
considering the otherwise parallel nature of these cases.
See E. Prescott, Tait’s Handbook of Connecticut Evidence (6th Ed. 2019) §§ 6.33.4 and 6.33.5, pp. 420–21.
Moreover, if we were to abandon only the Daniel W. E.
instruction but leave in place the rest of our holding,
all that would remain of Daniel W. E. is the requirement
that a defendant must attack a victim’s credibility for the
state to introduce constancy testimony. This requirement
does little in practice, as a defendant will almost invariably attack a victim’s credibility in sexual assault cases,
whether through cross-examination, as part of the defendant’s own presentation of evidence or in argument.
We therefore return our constancy of accusation doctrine to its earlier status under Troupe. We believe that
Troupe, along with the other avenues available to negate
juror biases, such as expert testimony, sufficiently balance the defendant’s interest in not being unreasonably
burdened by constancy testimony with the state’s interest in overcoming potential jury bias against victims of
sexual abuse who delay in reporting. As illustrated by
the testimony of Williams, we specifically allow expert
testimony about the general behavioral characteristics
of sexual abuse victims, including delayed reporting.
This testimony, if credited by the jury, combats any skepticism the jury might harbor toward sexual assault victims who delay in reporting, without requiring the jury
to take delay entirely off the table when assessing the
victims’ credibility or risking that the jury will so construe the court’s instructions. See State v. Favoccia,
306 Conn. 770, 780,
51 A.3d 1002 (2012).
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State v. Adam P.
It is also important to point out that Troupe already
directs that trial courts substantively provide the
reformed jury instruction the defendant in the present
case requests, namely, one that instructs that delay is
a factor jurors may consider when evaluating witness
credibility. See State v. Troupe, supra,237 Conn. 305
(‘‘the defendant is entitled to an instruction that any
delay by the victim in reporting the incident is a matter
for the jury to consider in evaluating the weight of the
victim’s testimony’’). Thus, the defendant’s argument
against a return to Troupe and, in turn, for maintaining
part of the constancy of accusation doctrine we articulated in Daniel W. E., relies on the possibility of undue
prejudice to the defendant from the state’s presentation
of multiple constancy witnesses. But, in Troupe, we
expressly addressed this concern, concluding that a
trial court’s responsibility to carefully consider and limit
the detail that constancy witnesses may provide sufficed to offset the prejudice a defendant might suffer
from multiple constancy witnesses. See id., 302–303.
We further observe that ordinary rules of evidence
already safeguard defendants against this prejudice.
Section 4-3 of the Connecticut Code of Evidence provides, for example, that relevant evidence may be
excluded if it wastes time or needlessly presents cumulative evidence. Thus, if constancy testimony is unnecessarily duplicative, trial courts already have the tools
to vigilantly protect the defendant from undue prejudice. We must, however, distinguish between what the
defendant in Daniel W. E. described as the state’s ‘‘ ‘piling on’ ’’ of multiple constancy witnesses; State v. Daniel W. E., supra,322 Conn. 618; and the state’s
presentation of a strong case involving several constancy witnesses who testify in a limited manner, consistent with Troupe. The former requires that trial
courts not admit needlessly cumulative2 evidence,
2
We highlight that our Code of Evidence specifies that evidence may
not be needlessly cumulative. See Conn. Code Evid. § 4-3. Two constancy
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State v. Adam P.
whereas the latter strongly negates any inference that
a sexual assault victim’s delayed reporting is evidence
of fabrication.
Troupe also already contains other limitations meant
to protect defendants from undue prejudice. For example, under Troupe, constancy witnesses ‘‘may testify
only with respect to the fact and timing of the victim’s
complaint; any testimony by the witness regarding the
details surrounding the assault must be strictly limited
to [the details] necessary to associate the victim’s complaint with the pending change . . . .’’ State v. Troupe,
supra,237 Conn. 304. Additionally, trial courts must
witnesses who testify about a victim disclosing an assault to them on separate occasions, as in Daniel W. E., does not necessarily result in needlessly
cumulative testimony. See State v. Parris, 219 Conn. 283, 293–94,
592 A.2d
943 (1991) (‘‘[E]ach item of the state’s constancy evidence . . . pertained
to a different statement that the victim had made to a different person at
a different point in time. . . . [T]herefore, the evidence covered new matter
by demonstrating . . . that the victim previously had reported the incident
. . . in a constant and consistent fashion.’’); see also State v. Kelly, 256
Conn. 23, 38–40,
770 A.2d 908 (2001) (overlapping constancy testimony still
was not necessarily unfairly duplicative following Troupe). Rather, such
testimony serves the purpose Troupe contemplated: it undercuts any notion
that a victim must be lying if she delayed making an official report. See
State v. Kelly, supra, 38; State v.
Parris, supra, 293–94. This is not to say
that constancy testimony can never be needlessly duplicative. For example,
if a victim told a group of individuals about a sexual assault at a sleepover
party, it might be needlessly cumulative for each individual to testify because
each report would only reiterate the same disclosure, given in the same set
of circumstances. However, if, at the same sleepover party, a victim told
multiple individuals about different sexual assaults, or told one individual
about a sexual assault and then told another person about the same sexual
assault at a later date, that testimony would not be needlessly cumulative
because each report would present ‘‘new matter . . . .’’ (Internal quotation
marks omitted.) State v. Parris, supra, 293. But see R. Block, Note, ‘‘The New
Face of Connecticut’s Constancy of Accusation Doctrine: State v. Troupe,’’
29 Conn. L. Rev. 1713, 1738–39 (1997) (‘‘[T]he court [in Troupe] admitted
that cumulative testimony could be prejudicial [and addressed this concern
by holding that] detail testimony would no longer be allowed . . . [but] the
change does not correspond to the concern. . . . There will still be the
enhanced risk that the jury may be unduly swayed by the repeated iteration
of the constancy of accusation testimony.’’ (Footnotes omitted; internal
quotation marks omitted.)).
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provide a limiting instruction, stating that, because it
is hearsay and the rules of evidence therefore consider
it unreliable, any constancy testimony admitted pursuant to Troupe should not be considered substantively—
that is, jurors are not permitted to use, and should
not use, the testimony to help determine whether the
accusation is true. Id., 305. By returning to Troupe, we
affirm that trial courts, subject to appellate review, are
in the best position to properly ‘‘balance the probative
value of the evidence against any prejudice to the defendant,’’ pursuant to the standards articulated in Troupe
and the ordinary rules of evidence. Id.
Accordingly, we overrule the modification of the constancy of accusation doctrine established in Daniel W. E.
and return to the standards we previously articulated
in Troupe. Going forward, we encourage the Judicial
Branch’s Criminal Jury Instruction Committee to modify the constancy of accusation instruction to more closely
follow the language used by the New Jersey courts in
their 2013 revision of the charge. See New Jersey Model
Criminal Jury Charges, Fresh Complaint: Silence or Failure to Explain (revised April 15, 2013), available at https://
www.njcourts.gov/sites/default/files/charges/non2c029.pdf
(last visited February 4, 2025);3 see also State v. Daniel
3
The April 15, 2013 revision of the New Jersey model charge provides:
‘‘The law recognizes that stereotypes about sexual assault complainants
may lead some of you to question [complaining witness’s] credibility based
solely on the fact that [he or she] did not complain about the alleged abuse
sooner. You may or may not conclude that [complaining witness’s] testimony
is untruthful based only on [his or her] silence/delayed disclosure. You may
consider the silence/delayed disclosure along with all of the other evidence
including [complaining witness’s] explanation for his/her silence/delayed
disclosure when you decide how much weight to afford to [complaining
witness’s] testimony.’’ (Footnote omitted.) New Jersey Model Criminal
Charges, supra, Fresh Complaint: Silence or Failure to Explain.
We note that the New Jersey model instruction includes a footnote that
states that this instruction should not be used when there is testimony about
‘‘child sexual abuse accommodation syndrome,’’ akin to expert testimony
about behaviors common to child sexual abuse victims, because New Jersey
provides a separate, special instruction for such testimony. See id., n.1.
Because our model jury instructions do not presently contain a special
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W. E., supra, 322 Conn. 615–16 and n.11 (rejecting defendant’s claim that Troupe instruction on limited purpose
of constancy evidence misled jury and encouraging trial
courts, going forward, to provide jury instructions in
line with more detailed New Jersey model instruction,
as revised to February 5, 2007, to inform jurors about
limited purpose of constancy evidence).
B
Having concluded that we should abandon the approach
to constancy evidence that we adopted under Daniel
W. E., we must next address whether the instruction
we directed trial courts to provide in that case was
harmful, consequently entitling the defendant to a new
trial. We exercise plenary review over a challenge to
jury instructions because it presents a question of law.
See, e.g., State v. Campbell, 328 Conn. 444, 529,
180
A.3d 882 (2018).
To determine whether the defendant is entitled to a
new trial because of an erroneous jury instruction, ‘‘we
review the entire charge to determine if, taken as a
whole, the charge adequately guided the jury to a correct verdict. . . . In appeals not involving a constitutional question [we] must determine whether it is
reasonably probable that the jury [was] misled . . . .
[I]n appeals involving a constitutional question, [however, the standard is] whether it is reasonably possible
that the jury [was] misled.’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) State v.
Ortiz, 343 Conn. 566, 594,
275 A.3d 578 (2022); see
State v. Tatum, 219 Conn. 721, 734,
595 A.2d 322 (1991)
(‘‘ ‘[t]he ultimate test of a court’s instructions is whether,
taken as a whole, they fairly and adequately present
instruction for that type of expert witness, but only a standard instruction
for expert testimony generally, we encourage trial courts to rely on the
body of the New Jersey model charge without paying heed to the exception
in the footnote.
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the case to a jury in such a way that injustice is not done
to either party under the established rules of law’ ’’). If
the instruction involves a constitutional violation, the
state bears the burden of demonstrating harmlessness,
whereas, if the instruction does not, the defendant bears
the burden of demonstrating harm. See State v. Johnson, 316 Conn. 45, 58,
111 A.3d 436 (2015) (‘‘ ‘[i]f an
improper jury instruction is of constitutional magnitude, the burden is on the state to prove harmlessness
beyond a reasonable doubt’ ’’). Instructional errors violate due process—and, therefore, are of constitutional
dimension—when they confuse the burden of proof,
the presumption of innocence, or one of the essential
elements of the crime. See State v. LaBrec, 270 Conn.
548, 557,
854 A.2d 1 (2004) (‘‘[w]e previously have considered an instructional impropriety to be of constitutional dimension only when it has gone to the elements
of the charged offense, the burden of proof or the presumption of innocence, concepts that undeniably are
fundamental to the notion of a fair and impartial jury
trial’’); see also State v. Dash, 242 Conn. 143, 152,
698
A.2d 297 (1997); State v. Tillman,
220 Conn. 487, 503,
600 A.2d 738 (1991), cert. denied,
505 U.S. 1207,
112 S.
Ct. 3000,
120 L. Ed. 2d 876 (1992).
The defendant argues that the instructional error in
the present case is of constitutional dimension, requiring the state to show that the error was harmless beyond
a reasonable doubt. We are not persuaded. We have
repeatedly held that, when a claim ‘‘does not involve
the violation of a constitutional right, the burden rests
upon [the defendant] to demonstrate the harmfulness
of the court’s error.’’ State v. Cooper, 182 Conn. 207,
212,
438 A.2d 418 (1980); see also State v. Patterson,
276 Conn. 452, 471–72,
886 A.2d 777 (2005). More particularly, we have expressed that general credibility
instructions regarding constancy of accusation testimony are nonconstitutional in nature because they do
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not, on their own, confuse the elements of a crime,
shift the state’s burden of proof to the defendant, or
undermine the defendant’s presumption of innocence.
See, e.g., State v. Jones, 337 Conn. 486, 509,
254 A.3d
239 (2020); State v. Daniel W.
E., supra,322 Conn. 610;
see also State v. Roberto Q., 170 Conn. App. 733, 743,
155 A.3d 756 (citing Appellate Court cases), cert. denied,
325 Conn. 910,
158 A.3d 320 (2017).
Credibility is often particularly important in sexual
assault cases, and victims’ delayed reporting may be
relevant to their credibility. In fact, what to make of
delay is often a point of dispute between the parties in
sexual abuse cases, with one side positing that delay
is a symptom of a victim’s trauma, and the other claiming that it is consistent with a motivation to fabricate
accusations. Even so, neither delay nor credibility is an
element of the charged offenses; nor do they shift the
state’s burden of proof to the defendant. Cf. State v.
Devalda, 306 Conn. 494, 507–508,
50 A.3d 882 (2012)
(instructional error was of constitutional dimension
when jury was told it could find restraint element, which
is essential to kidnapping, proven if it found that victim
had ‘‘ ‘acquiesced,’ ’’ but court failed to define ‘‘restraint
by acquiescence’’ as limited to when victim is younger
than sixteen or incompetent). And, although we have
held that instructions mandating that jurors draw particular inferences might violate due process, we have done
so when those instructions ‘‘[relieve] the state of the
burden of proving an essential element of the offense
. . . .’’ (Citation omitted; emphasis added.) State v. Williams, 199 Conn. 30, 36,
505 A.2d 699 (1986); see also
State v. Bunkley, 202 Conn. 629, 657–58,
522 A.2d 795
(1987) (instruction on mandatory legal effect of police
officers’ conduct as to defendant’s liability did not violate due process because ‘‘the challenged statement was
not given as part of the court’s instruction on an element
of the crimes charged’’). Because the instructional error
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we have found in the present case neither shifted the
burden of proof to the defendant, implicated the defendant’s presumption of innocence, nor dealt with an element of the charged crimes, we reject the defendant’s
argument that the error is of constitutional dimension.
We must now consider whether the defendant has
demonstrated that it is not just reasonably possible,
but reasonably probable—meaning more probable than
not—that the instructional error misled the jury in arriving at its verdict, therefore requiring reversal. See State
v. Chapman, 229 Conn. 529, 544,
643 A.2d 1213 (1994)
(‘‘[u]nder the circumstances . . . we cannot conclude
that it is more probable than not that the court’s instructional impropriety affected the result’’). This determination is necessarily fact intensive, requiring that we look
to the instructions provided, the parties’ theories of the
case, and the larger record, all in their entireties, to
ensure that ‘‘injustice is not done to either party under
the established rules of law.’’ (Internal quotation marks
omitted.) State v. Gomes, 337 Conn. 826, 849,
256 A.3d
131 (2021). ‘‘We evaluate the harmfulness of a nonconstitutional error on the record as a whole. . . . An
improper instruction is not automatically harmful
merely because it adversely affects a defense.’’ (Citations omitted.) State v. Ross, 230 Conn. 183, 215,
646
A.2d 1318 (1994), cert. denied,
513 U.S. 1165,
115 S. Ct.
1133,
130 L. Ed. 2d 1095 (1995). The defendant’s claim
of harm requires that we conclude that the jury’s verdict
turned on its misunderstanding, based on the Daniel
W. E. instruction, that it could not consider the victims’
delayed reporting of the sexual abuse when assessing
their credibility. See State v. Patterson, supra,276 Conn.
473 (‘‘in the absence of [an instruction on the jailhouse
informant’s credibility] the jury reasonably could not
have found the defendant guilty . . . [b]ecause [the
informant’s] testimony was so critical to the state’s case,
and because the other evidence on which the state
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relied was so weak, we cannot say that the trial court’s
failure to charge the jury specially regarding [the informant’s] credibility was harmless’’ (citation omitted)).
Considering the record as a whole, including the jury
instructions, the theory of defense, and the strength
of the evidence presented, we conclude that it is not
reasonably probable that the erroneous instruction misled the jury because it had sufficient tools with which
to judge the victims’ credibility, and neither the verdict
nor the defendant’s theory of the case turned on delay.
Beginning with the jury instructions, notwithstanding
our rejection of the Daniel W. E. instruction that the
victims’ delay ‘‘should not be considered . . . in evaluating their credibility,’’ we cannot conclude that it is
reasonably probable that the jury believed that it was
precluded, based on this portion of the charge, from
considering the victims’ credibility more generally, and
therefore, we are not convinced based on the instructions alone that the jury was misled in arriving at its
verdict. The instructions as a whole directed the jury
to consider the victims’ credibility based on factors
other than delay and emphasized that the state’s burden
of proof does not shift to the defendant. There is no
reason to believe that the jury, based purely on the
Daniel W. E. instruction, would disregard the credibility
factors the court provided as examples in its final
charge or its instruction on the state’s burden of proof.
See, e.g., State v. Beavers, 290 Conn. 386, 408,
963 A.2d
956 (2009) (in absence of contrary evidence, reviewing
court presumes jurors followed trial court’s jury
instructions).
Specifically, the trial court, immediately before providing the instruction at issue, stated that, to obtain a
guilty verdict, the state must prove the requisite elements beyond a reasonable doubt for each charge, and
that that burden cannot shift to the defendant during
trial. It then instructed that the jury was the sole judge
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of credibility and that it alone should determine ‘‘which
testimony to believe, and which testimony not to believe.’’
It proceeded to describe the factors a jury might look
to when considering a witness’ credibility, including
whether ‘‘the witness [was] able to see, hear, or know
the things about which the witness was testifying, how
well was the witness able to recall and testify to these
things . . . the witness’ manner while testifying, [whether]
the witness [had] an interest in the outcome of the case,
or any bias or prejudice concerning any party or any
matter involved in the case, how reasonable was the
witness’ testimony when viewed in light of all the evidence in the case, and [whether] the witness’ testimony
[was] contradicted by what that witness [had] said or
done at another time, or by the testimony of other
witnesses, or by other evidence.’’
After the trial court provided the instruction that we
have today disavowed,4 it instructed the jury on how
to assess the credibility of expert witnesses, noting that,
‘‘[i]t is for you to consider the testimony with the other
circumstances in the case and, using your best judgment, to determine whether you will give it any weight,
and, if so, what weight you will give it.’’ Finally, the
trial court again discussed with the jurors the elements
of each charged offense, reminding them that, to find
the defendant guilty of any charge, they must find that
the state has proven every element of the charge beyond
a reasonable doubt.
4
We emphasize that the trial court in the present case laudably undertook
its best efforts to faithfully implement the direction that this court provided
in Daniel W. E. and that the model criminal jury instruction for constancy
of accusation testimony sought to implement. See Connecticut Criminal
Jury Instructions 7.2-1, supra. For this reason, at least, we cannot conclude
that the trial court committed plain error, as the defendant asks us to
conclude in the alternative. See, e.g., State v. Turner, 334 Conn. 660, 684,
224
A.3d 129 (2020) (‘‘ ‘[i]t is axiomatic that the trial court’s proper application
of the law existing at the time of trial cannot constitute reversible error
under the plain error doctrine’ ’’).
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Our conclusion that it is not reasonably probable that
the jury was misled by the erroneous instruction is
supported further by the fact that the defendant’s principal defense—that no sexual abuse had occurred and
that the victims had fabricated such accusations—centered on his insufficient opportunity to sexually abuse
the victims and the absence of physical evidence, categories wholly separate from any delayed reporting. The
defendant’s reliance on delay in support of his fabrication theory was minimal, and the jury was able to
appreciate his defense even if it arguably believed it
was constrained to disregard delay in assessing the
victims’ credibility. See State v. Quintana, 209 Conn.
34, 47,
547 A.2d 534 (1988) (erroneous jury instruction
was harmless when jury’s verdict hinged on factual
determinations that were ‘‘ ‘not classically dependent’ ’’
on subtleties of legal issue); see also State v. Helmedach,
306 Conn. 61, 80,
48 A.3d 664 (2012) (instructional error
was harmless when instruction could not have changed
jury’s verdict).
Specifically, while cross-examining the various witnesses, defense counsel repeatedly stressed the lack
of physical evidence, highlighting, for example, that T
claimed that the defendant had bitten her ear during a
sexual abuse incident but did not leave a mark and that,
although Q regularly took her and D to a doctor as
children, T’s doctor had never asked about sexual or
physical abuse. Counsel also questioned the validity
of the police investigation, as neither Connecticut nor
North Carolina detectives had made any effort to obtain
the victims’ medical records from the time during which
the alleged abuse occurred to corroborate their accusations.
Defense counsel, again on cross-examination, also
highlighted the defendant’s lack of opportunity to
assault the victims because other adults lived in the
home during the time the abuse occurred, with at least
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one adult living with them for three years. Defense
counsel also pointed to the lengthy periods of time
during which the victims and the defendant did not live
in the same household, with D stating that they spent
summers in South Carolina with extended family, away
from both Q and the defendant. This focus on the other
adults present in the home during the time the abuse
occurred, and the distance between the victims and the
defendant, necessarily encouraged the jury to question
whether he would have had the opportunity to abuse
the victims at all.
Defense counsel’s closing argument further illustrates that the primary theory of defense did not center
on delay but, rather, on the defendant’s lack of opportunity to assault the victims and the lack of physical
evidence. It also demonstrates that the jury was well
equipped to assess the victims’ credibility using other
factors, despite the erroneous instruction. Defense
counsel suggested that it would not be possible for the
victims to be assaulted in such a violent manner without
the other adults living in the home knowing about it,
considering the small size of the apartments in which
the abuse occurred. She laid out the many inconsistencies between the victims’ testimony that did not involve
delay in reporting and explicitly asked the jury to consider those inconsistencies when assessing their credibility. For example, she noted that the victims’
testimony did not match up as to where the first incident
had occurred, whether the defendant had threatened
them, and whether the victims had talked to each other
about the abuse. Defense counsel further highlighted
the complete lack of physical evidence and the results
of the victims’ medical examinations, emphasizing that
there were no findings consistent with sexual abuse
and going so far as to posit, ‘‘[w]e’re talking about . . .
very rough sex on small children. . . . [The defendant
is] not a small man. . . . Does this make sense?’’
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Thus, notwithstanding the defendant’s efforts on
appeal to portray the delay as the centerpiece of his
defense, our comprehensive review of the testimony
elicited and arguments made at trial reveals that the
victims’ delay in reporting the defendant’s abuse played
a relatively unimportant role in the defendant’s theory
of the case. Even if we assume that the jury did not
credit either of the victims’ testimony, which offered
some alternative reasons for their disclosure that could
be considered separately from delay,5 or the testimony
of the state’s expert, who explained why many victims
do not more promptly disclose the abuse they have
endured at a very young age, the victims’ delay in
reporting the defendant’s abuse was arguably relevant
to their motive to fabricate their accusations. Yet, evidence of delay was only one piece of the defendant’s
fabrication theory. On cross-examination, and again
during closing, defense counsel questioned why the
victims would not disclose the abuse earlier, once they
were not living with the defendant during the summers
and it was therefore physically safe to do so. In closing
argument, counsel suggested to the jury that the victims’
accusations were merely a recent bid for attention from
Q. In other words, the defendant argued that the victims’
motivation to fabricate was based on their relationship
with Q, a credibility factor that the jury might consider
as separate from delay.
The record supports this distinction. On cross-examination, defense counsel elicited that Q was absent for
much of the victims’ childhoods because of her work
schedule, that D believed that Q did not care that the
defendant was sexually abusive, that nothing happened
as a result of D’s disclosure until she was hospitalized,
and that Q did not immediately come to see D in the
hospital, despite having been notified. Defense counsel
highlighted this testimony during closing argument, ask-
5
One such reason was the victims’ fear of pregnancy.
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State v. Adam P.
ing the jury to consider that the victims made up their
accusations because they did not want to give up their
long sought-after attention from Q and blamed Q for
their deteriorated emotional state leading up to and
after their disclosure based on her absence from their
lives. Defense counsel also stressed the damage that
constantly moving between homes, starting at a new
school, and not having a stable mother figure would
have on the victims, and how that damage might manifest itself in the victims’ fabricating accusations to get
attention from Q. Thus, the jurors were able to assess
the defendant’s fabrication theory, even without considering delay, by relying on the victims’ relationship with
Q to inform their motivation to fabricate, as well as on
general credibility factors provided by the defendant
and the court.
The only explicit mention during closing arguments
of delayed disclosure as related to credibility was brief.
Defense counsel recounted Williams’ expert testimony
that victims might delay disclosure because of their
love for the abuser and that they do not want to hurt
the abuser, or because the victim lives with the abuser
and fears retaliation. She contended that the victims’
proffered reasons for their delayed disclosure were
inconsistent with those Williams described because the
victims felt no loyalty toward the defendant and were
not in close proximity to him for extended periods of
time. Therefore, as we previously discussed, even if
defense counsel did not highlight delay during closing
argument because of the Daniel W. E. instruction, the
jury was able to assess the victims’ credibility by considering other factors, such as their consistency while testifying, that both the trial court and defense counsel
had emphasized.
Lastly, we consider the strength of the evidence presented at trial. The defendant contends that the state’s
case was weak and, therefore, that the instruction we
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now reject was more likely to be harmful because
‘‘[t]here was no forensic evidence, no physical evidence,
and no witnesses other than the [victims].’’ Upon our
review of the record, however, we conclude to the contrary. The strength of the state’s case buoys our determination that it is not reasonably probable that the
erroneous instruction misled the jury. See State v. Pat-
terson, supra,276 Conn. 472 (instructional error was
exacerbated by, and therefore harmful because of, lack
of corroborative evidence); State v. Ruth, 181 Conn.
187, 197,
435 A.2d 3 (1980) (harmlessness of instructional error was supported principally by ‘‘the overwhelming nature of the evidence’’).
The state’s case, even without physical or forensic
evidence, was strong. See State v. Felix R., 319 Conn.
1, 18–19,
124 A.3d 871 (2015) (‘‘a [sexual abuse] case
is not automatically weak just because . . . [of] the
lack of conclusive physical evidence corroborating sexual assault, especially given the corroborating evidence
introduced at trial’’). The victims testified extensively,
and largely consistently about the defendant’s actions,
at least as to the type of idiosyncratic details that Williams noted were indicative of children truthfully recalling sexual abuse.6 The state also presented multiple
6
The victims testified that the first incident of sexual abuse began with
the defendant’s asking if they would like to play a game that T described
as ‘‘licking cups.’’ D then testified that the defendant orally, vaginally, and
anally assaulted them in the dining room, and T testified that the defendant
orally and vaginally assaulted them after forcing them to watch a pornographic film. D testified to another incident when the defendant forced her
to watch a pornographic film while he vaginally assaulted T and, following
the film, orally and vaginally assaulted D. T also testified that the defendant
vaginally assaulted her twice without D present.
The victims further testified about an incident that started with the defendant’s asking if they wanted to play the game and ended with Q’s returning
from work. D said that she saw the defendant take T into Q’s bedroom and,
worried for her sister, went inside to ask what they were doing. After D
entered the room, the defendant forced her to digitally penetrate him while
he orally assaulted T. D then described the defendant’s ordering her to leave
the room because she had digitally penetrated him ‘‘so badly,’’ at which
point she sat outside Q’s bedroom door. T’s account of this incident was
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witnesses who bolstered the victims’ credibility, including three detectives and Williams. The detectives corroborated the victims’ timeline of events, noted that,
in their experience, the lack of physical evidence was
common in cases involving late disclosures by children
of sexual assault, and detailed how they investigated
and assessed the reliability of the victims’ allegations.
With respect to reliability, Detective Thomas Russell
Varnadoe, the lead investigator into the victims’ claims
in North Carolina, testified that the victims underwent
separate forensic and physical examinations conducted
by a multidisciplinary team of prosecutors, police officers, social workers, and others who have worked on
sexual assault investigations. Varnadoe stated that he
observed the interviews of the victims, transcripts of
which were admitted into evidence at the time of trial,
and that the interviews informed his investigation. Following those examinations, law enforcement was able
to establish a reliable timeline of when and where the
incidents occurred, in part by corroborating certain
details with Q, such as the color or makeup of the house
in Stratford, and by confirming where the victims lived
and for what period of time through the use of a police
database that provided information that was largely
consistent with the information provided by Q and the
victims. Williams also bolstered the victims’ credibility
by testifying at length about the general behavior of
child sexual abuse victims, including changes in behavior and delayed reporting. She explained the common
largely consistent with D’s account. T testified that the defendant put on a
pornographic film and proceeded to orally assault D while T watched and,
in short order, attempted to force T to engage in oral sex with D. T further
testified that the defendant, after D said she did not like it and did not want
to continue, told D to leave the room and stand as a lookout for when Q
returned from work. Once D left the room, T testified, the defendant vaginally
and orally assaulted her.
Although the victims testified only as to the details of the previously
mentioned incidents, D further stated that, at least at the Stratford apartment,
the abuse happened ‘‘every day . . . .’’
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triggers for reporting abuse and factors that might make
a disclosure more or less credible, including a recounting
of ‘‘important idiosyncratic details, contextual details,
peripheral details . . . [that] wouldn’t be there if something didn’t happen to them because they’re not typically details [someone would have] if . . . it didn’t
happen . . . .’’
Additionally, although there are limits to what inferences we may properly draw from a jury’s verdict, the
jury’s split verdict in the present case increases our
confidence that the erroneous instruction was harmless
because what the jury split its verdict on indicates that
it assessed the victims’ credibility. See, e.g., State v.
Angel T., 292 Conn. 262, 294,
973 A.2d 1207 (2009) (‘‘the
split verdict suggests that the jury had doubts concerning [the complainant’s] credibility as a general matter,
as it failed to credit [some of] her testimony’’). Specifically, the jury found the defendant not guilty of two
counts of sexual assault in the first degree as to incidents involving only T. The state alleged that both incidents took place in Stratford. The jury found the
defendant guilty of one count of sexual assault in the
first degree in connection with an incident in which D
was the sole complainant that the state also alleged
took place in Stratford. The jury came to different conclusions about the veracity of the victims’ claims,
despite their other similarities: both sexual assault incidents allegedly took place in Stratford and involved one
victim without the other present. Therefore, we are
comfortable inferring, based on the present record, that
the jury must have made a credibility determination
based on something besides delay to find the defendant
not guilty of those two counts involving only T.
Given our careful review of the trial record, including
the victims’ extensive testimony and corroborating testimony by other witnesses, we are confident that the
jury had sufficient grounding on which to make a credi-
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State v. Adam P.
bility determination and that the jury’s verdict turned
on that general credibility determination rather than
specifically on the victims’ delayed reporting. Because
the trial court’s jury instructions were adequate as a
whole, and the strength of the state’s case corroborated
the victims’ credibility, we conclude that it is not reasonably probable that the instructional error we identify
today misled the jury in arriving at its verdict.
II
The defendant also claims that the trial court abused
its discretion by permitting D to testify that he had told
her that he previously played the same sexual games
with his daughter, A, that he was ‘‘playing’’ with the
victims. He contends that the prejudicial effect of D’s
testimony, admitted as a statement of a party opponent
to show that the defendant was grooming D for sexual
abuse, outweighed its probative value because it suggested to the jury that the defendant also had sexually
abused A.7 We disagree.
Prior to trial, the state provided written notice that
it intended to offer evidence that the defendant had
told D that the ‘‘game’’ he played with her and T was
the same ‘‘game’’ he played with A, and that D was the
only one who did not like the game. The defendant
responded that the evidence was not probative of a
charged offense and was unduly prejudicial because
‘‘the jury’s knowledge of these unsupported allegations
7
The defendant alternatively contends that D’s testimony ‘‘would have
been inadmissible as uncharged [sexual] misconduct.’’ The defendant, however, concedes that the trial court admitted D’s testimony as a statement
by a party opponent, not as uncharged sexual misconduct, and that the
trial court instructed the jury not to consider D’s testimony as uncharged
misconduct evidence. The trial court therefore never exercised its discretion
as to whether to admit or exclude D’s testimony as evidence of uncharged
sexual misconduct, and we will not review a hypothetical ruling of the court.
See, e.g., State v. Juan J., 344 Conn. 1, 13–14,
276 A.3d 935 (2022) (reviewing
court cannot determine whether trial court abused its discretion in admitting
evidence for different purpose).
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State v. Adam P.
could clearly tip the balance in favor of the state and
unfairly alter the outcome of the trial.’’
After hearing argument, the court orally ruled that
the evidence was not overly prejudicial because D’s
testimony was not ‘‘blatantly sexual in nature’’ compared to the allegations in the case that ‘‘the defendant
was having . . . oral, anal, and vaginal sex with two
little girls . . . .’’ The court indicated that it would permit the state to introduce the evidence as a statement
by a party opponent for the limited purpose of showing
a ‘‘form of bizarre peer pressure’’ or ‘‘grooming activity’’
but that, to minimize any prejudice to the defendant,
it would instruct the jury that it should not use the
evidence for propensity purposes or as evidence of
uncharged sexual misconduct and would restrict any
attempt by the state to argue that the defendant in fact
sexually abused A.
At trial, D testified on direct examination that the
defendant had described the sexual abuse as a ‘‘game’’
to the victims. D testified that the defendant had asked
her why she did not ‘‘like the game’’ and that, when
she answered, ‘‘it feels uncomfortable,’’ he said that
‘‘it’s supposed to be.’’ Consistent with the court’s ruling,
D further testified that the defendant had ‘‘told [her]
that he did it before with another girl named A. And
he was telling me that A had also enjoyed the game,
that [D] was the only one that did not enjoy the game.
So, he tried to make it seem—our conversation was
trying to persuade me to enjoy the game more. So, I
remember just seeming shocked that there was another
girl out there that also was going through what me and
T were going through. So, that was basically the concept
of the conversation.’’ D also testified that she knew
that A was the defendant’s daughter and that they had
met before.
The next morning, the court instructed the jury that
D’s testimony regarding the ‘‘game’’ was not offered to
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State v. Adam P.
establish that the defendant had engaged in any type
of uncharged misconduct but, rather, for the limited
purpose of describing the nature of the discussions or
communications between the defendant and D. Later
that day, A testified, stating that the defendant never
acted inappropriately toward her. In its final charge,
the court again directed the jury to use D’s testimony
for the limited purpose for which it was offered.
‘‘It is well established that [s]tatements made out of
court by a [party opponent] are universally deemed
admissible when offered against him . . . so long as
they are relevant and material to issues in the case.’’
(Internal quotation marks omitted.) State v. Tomlinson,
340 Conn. 533, 576,
264 A.3d 950 (2021). ‘‘Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time or needless presentation of cumulative evidence.’’ Conn. Code
Evid. § 4-3.
‘‘Evidence is probative if it has any tendency to make
the existence of any fact that is material to the determination of the proceeding more probable or less probable
than it would be without the evidence.’’ (Internal quotation marks omitted.) Doe v. West Hartford, 328 Conn.
172, 195–96,
177 A.3d 1128 (2018); see also Conn. Code
Evid. § 4-1. ‘‘To be unfairly prejudicial, evidence must be
likely to cause a disproportionate emotional response in
the jury, thereby threatening to overwhelm its neutrality
and rationality to the detriment of the opposing party.
. . . All evidence adverse to an opposing party is inherently prejudicial because it is damaging to that party’s
case. . . . For exclusion, however, the prejudice must
be unfair in the sense that it unduly arouse[s] the
[jurors’] emotions of prejudice, hostility or sympathy
. . . .’’ (Citation omitted; internal quotation marks
omitted.) State v. James K., 347 Conn. 648, 672–73, 299
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State v. Adam P.
A.3d 243 (2023). We review the trial court’s balancing
of the potential prejudicial effect against its probative
value for an abuse of discretion. See State v. Patterson,
344 Conn. 281, 298,
278 A.3d 1044 (2022).
We conclude that the court did not abuse its discretion by permitting D to testify that the defendant had
told her that he played the same sexual games with A.
The testimony was probative of the defendant’s attempts
to groom or pressure D to engage in sexual intercourse
with him. The testimony was especially probative when
paired with Williams’ expert testimony that child sex
abusers often use grooming as a mechanism to coerce
children to engage sexually with them and that referencing the sexual abuse of another child in the same manner
could be a form of grooming. The trial court mitigated
any prejudicial effect of D’s testimony by admitting the
testimony only for the limited purpose of establishing
grooming and by repeatedly instructing the jury to use
it only for that purpose. In the absence of evidence to
the contrary, we presume that the jury properly followed the court’s instructions and used D’s testimony
for that limited purpose. See, e.g., State v. Beavers, supra,290 Conn. 408. Both of these mitigating measures militate against a conclusion that the trial court abused its
discretion. See, e.g., State v. Patterson, supra, 344 Conn.
301 (limiting instructions minimize prejudicial effect
evidence might have); State v. Bermudez, 195 Conn.
App. 780, 793,
228 A.3d 96 (2020) (limiting purpose of
admitted evidence quells potential for unfair prejudice),
aff’d, 341 Conn. 233,
267 A.3d 44 (2021).
In light of these mitigating measures, we cannot say
that the trial court unreasonably balanced the probative
value of D’s testimony with any remaining unfair prejudice. We agree with the trial court that D’s testimony
did not likely cause a disproportionate emotional response
in the jurors or unduly arouse their emotions because
the substance of D’s challenged testimony was not bla-
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State v. Adam P.
tantly sexual in nature compared to the bulk of the
evidence in the case bearing on the state’s allegations
of the defendant’s sexual contact with the victims. D
did not explain the graphic details of the defendant’s
physical contact with A, only that he had told her that
A enjoyed playing the same game. See, e.g., State v.
Jacobson, 283 Conn. 618, 639–40,
930 A.2d 628 (2007)
(testimony that defendant had slept in same bed with
another child to establish grooming behavior was not
inflammatory or otherwise unfairly prejudicial because
jury already had heard graphic testimony of abuse of
sexual victims). Consequently, indulging every reasonable presumption in favor of the trial court’s ruling, we
conclude that it was not a manifest abuse of discretion
for the court to permit D to testify that the defendant
had told her that he played the same sexual games with
his daughter.
The judgment is affirmed.
In this opinion McDONALD, MULLINS and DANNEHY, Js., concurred.
