Summary
The Connecticut Appellate Court affirmed Nathan S.'s jury convictions for sexual assault in the fourth degree and two counts of risk of injury to a child. The court held that any error in admitting testimony concerning the defendant's comments about middle school girls was harmless, found no prosecutorial impropriety in cross-examination of the defense DNA expert, and rejected the defendant's unpreserved specific-unanimity claim.
Topics
Practice areas
Questions Presented
- Whether the trial court improperly admitted testimony from the defendant's son about the defendant's comments concerning middle-school girls under Connecticut Code of Evidence § 4-5 (b) and (c), and whether any error was harmful.
- Whether the prosecutor engaged in prosecutorial impropriety by cross-examining the defense DNA expert about the allele table, touch DNA, secondary transfer, and the defendant's exclusion as a contributor.
- Whether the trial court violated the defendant's constitutional right to a unanimous verdict by failing to instruct the jury that it had to agree on the particular instance or instances of sexual contact underlying the sexual-assault charge.
Holdings
- Even assuming that the trial court erred by admitting the testimony under Connecticut Code of Evidence § 4-5 (b) or (c), the defendant failed to establish harmfulness because the testimony did not substantially affect the jury's verdict.
- The prosecutor did not engage in prosecutorial impropriety by questioning the DNA expert about whether exclusion as a contributor necessarily meant that the defendant had never touched the leggings, by examining the admitted allele table, or by occasionally using 'profile' rather than 'type.'
- The defendant's challenge to the specific unanimity instruction was unpreserved and was not reviewable because the record established implicit waiver under the Kitchens framework.
Key quotations
“Therefore, we have a fair assurance that the alleged error did not substantially affect the verdict.” (slip op. at 29)
“We conclude that the prosecutor’s questions during cross-examination of Madel were not improper.” (slip op. at 40)
Factual background
Between August 2018 and February 2019, the defendant, who was forty-two years old, regularly cared for an eleven-year-old girl at his home. The victim testified that the defendant progressively engaged in sexual contact with her, including touching her breasts and buttocks and having her touch his penis. The state presented the victim's testimony, extensive text-message evidence, testimony from the defendant's son and other witnesses, and expert testimony concerning DNA recovered from the victim's leggings; the defendant was eliminated as a contributor to the tested DNA profiles.
Procedural history
The defendant was charged by substitute information in the Superior Court for the judicial district of Danbury. Following a seven-day jury trial, the jury found him guilty on all three counts; the trial court denied his motion for a mistrial, rendered judgment, and imposed a total effective sentence of fifteen years of incarceration, execution suspended after seven years, followed by ten years of probation. The defendant appealed, and the Connecticut Appellate Court affirmed.