Opinion
No. N07-CR05-0231275
November 2, 2007
MEMORANDUM OF DECISION RE STATE'S MOTION TO ADMIT PRIOR MISCONDUCT AND DEFENDANT'S MOTION IN LIMINE
This Memorandum of Decision addresses the issues raised though the State's Motion to Admit Prior Misconduct and the defendant's Motion in Limine concerning the same conduct. On October 10, 2007, after hearing and consideration of the parties' contentions, the court placed a summary of the basis for its legal and factual conclusions on the record, finding the issues in favor of the state. Accordingly, the defendant's motion in limine was DENIED, and the state's motion to admit was GRANTED. This written memorandum is submitted to explicate the basis for the court's ruling, pursuant to the parties' agreement and consistent with Practice Book § 64-1.
I. PROCEDURAL HISTORY
Though an amended information, the defendant was charged with public indecency in violation of General Statutes § 53a-186(a)(2) and disorderly conduct in violation of § 53a-182(a)(2). The state based these charges on events alleged to have occurred at a location known as HealthWorks, in Wallingford, CT, on or about September 15, 2005. The defendant pled not guilty to these charges and elected trial to a jury.
Section 53a-186(a)(2) provides as follows: "A person is guilty of public indecency when he performs any of the following acts in a public place: a lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person . . . For the purposes of this section, "public place" means any place where the conduct may reasonably be expected to be viewed by others."
Section 53a-182(a)(2) provides as follows: "A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person . . . by offensive or disorderly conduct, annoys or interferes with another person . . ."
On September 28, 2007, prior to the evidentiary portion of the trial, the state filed its Motion to Admit Prior Misconduct evidence (motion to admit). Through this motion, the state sought to implement the provisions of Conn. Code Evid. § 4-5(b) as the means by which certain of the defendant's prior acts could be admitted "to prove intent, identity, motive, and/or a common plan or scheme"; Motion to Admit. The state requested permission to use the prior conduct with regard to the public indecency charge, alone. Specifically, the state requested permission to present evidence that on March 30, 2004, a "complaining victim saw [the defendant] standing naked in the window of a house at 35 South Street in Enfield, CT. Victim saw Kiley press himself against the window so as to ensure the victim could see him. Victim . . . could see Kiley's penis and he made no effort to hide or move away from the window. When confronted by police, Kiley attempted to hide from officers and denied responsibility." Motion to Admit.
Conn. Code Evid. § 4-5 provides, in pertinent part, as follows: "(a) Evidence of other crimes, wrongs or acts inadmissible to prove character. Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person. (b) When evidence of other crimes, wrongs or acts is admissible. CT Page 18494 Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony." (Emphasis added.)
At oral argument on October 9, 2007, the state acknowledged that it seeks to offer the evidence at issue only as it pertains to the charge of indecent exposure brought against the defendant. Accordingly, the court has not considered this evidence as it may be relevant and material to the Conn. Code Evid. § 4-5(b) exceptions insofar as they may relate to the additional charge of disorderly conduct, discussed below.
On October 3, 2007, again prior to the commencement of evidence, the court received the defendant's Motion in Limine. Thereby, the defendant sought to "preclude the State from making any reference to uncharged misconduct in that the use of such information would be more prejudicial than probative and is intended to prove that the defendant is guilty of the crime charged and to suggest that the defendant has bad character and a propensity for criminal behavior." Motion in Limine. Through his motion, the defendant thus tacitly requested the court to utilize not only the provisions of Conn. Code Evid § 4-5(a) and (b) but also to employ the balancing test for prior conduct evidence established by Conn. Code Evid. § 4-3.
Conn. Code Evid. § 4-3 provides as follows: "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." As the Commentary explains, "Section 4-3 establishes a balancing test under which the probative value of proffered evidence is weighed against the harm likely to result from its admission . . . The task of striking this balance is relegated to the court's discretion." (Internal and external citations omitted.)
On October 5, 2007, the state filed an Addendum to Support State's Motion to Admit Prior Misconduct. This addendum consists of the affidavit accompanying the arrest warrant application for the charges arising from conduct alleged to have occurred on September 15, 2007. The affidavit was proffered to establish a framework against which the court could assess the prior misconduct evidence the state sought to tender at trial through Chesworth.
At oral argument on October 9, 2007, the parties stipulated that the state could present, and the court could utilize, the warrant affidavit's summary of events related to the defendant's acts in 2004 for the purpose of measuring compliance, if any, with the predicates for exceptions to admissibility of prior conduct evidence contemplated by Conn. Code Evid. § 4-5.
II. FACTS AT ISSUE
The court conducted a pre-trial hearing regarding the parties' motions. The state presented testimony from a single witness, Tina Chesworth, in support of its assertion that the defendant's prior misconduct should be admitted to establish intent, identity, motive and/or a common plan or scheme regarding the public indecency alleged to have occurred on September 15, 2007. The defendant offered testimony from Chesworth, as well, in support of his motion in limine.
Taken as a whole, Chesworth's testimony was competent to establish the following facts: Chesworth is an adult female. On the afternoon of March 30, 2004, she was alone and unaccompanied on South Street in Enfield, working as a meter service installer for CL P. The weather was dry and perhaps cloudy, but not raining. Chesworth was working in a heavily populated residential area in which the homes are located very close together; she had worked in this neighborhood on prior occasions. As she arrived at this work assignment, Chesworth noticed a young boy outside watching her work. While at her van, Chesworth also noticed an older gentleman sitting alone on a porch at a residence approximately ten to twenty feet from her; the gentleman was staring at her as he had on past occasions to a degree that made her uncomfortable. Chesworth identified this older gentleman as the defendant, William Kiley. This evidence presents ample basis for the reasonable inference that the defendant then knew that an unaccompanied adult female was within easy visual access of the residence where he had been sitting outside. State v. Sanchez, 92 Conn.App. 112, 119, 884 A.2d 1 (2005), aff'd per curiam, 282 Conn. 787 (2007).
It is axiomatic that the fact-finder is entitled and is sometimes obligated "to draw whatever inferences it deems reasonable and logical" from the evidence presented as a whole." (Internal quotations omitted.) State v. Sanchez, 92 Conn.App. 112, 119, 884 A.2d 1 (2005), aff'd per curiam, 282 Conn. 787 (2007). "There must be sufficient evidence to support the inferences, otherwise they are not reasonable inferences and cannot support a conviction . . . Once an inference has been reasonably found, it can be used as the basis for further inference." (Internal quotation marks omitted, external citations omitted.) Id.
After Chesworth completed her work and returned her tools to her van, she noticed that the defendant was no longer on his porch. As she started putting her tools away, Chesworth then noticed that the blinds had opened up to uncover a rather large window on the first floor of the residence where the defendant had been sitting. Chesworth had a clear view of the window, and saw that the defendant was standing in front of the window, naked from the knees up. Chesworth next saw the defendant come closer to the window, pressing his unclothed genitals against the glass; he remained in that position for approximately one to two minutes. When Chesworth first saw the defendant in this position, she looked for the young boy who had been watching her work earlier; the child was no longer in view. From the defendant's position in his window and from the noted absence of the young boy, the court is constrained to draw the reasonable inference that the defendant was exposing himself specifically so that an unaccompanied adult female would observe his conduct. State v. Sanchez, supra, 92 Conn.App. 119.
Chesworth called for police assistance and notified her employer of the incident. While waiting in her van for their response, she saw the defendant return to his position on the porch, dressed now in jeans and a baseball cap, smiling and staring at her. When the police arrived, the defendant was no longer on his porch; he was located in a trailer behind the house. Upon identifying the defendant, he stated to Chesworth words to the effect that "I can't believe you're having me arrested for this."
The affidavit outlines the state's proposed evidence concerning the 2007 as follows: In mid-September 15, 2005, an adult female identified as Sarah Pierce reported to the Wallingford Police Department that on the previous afternoon, she had witnessed a white male fondling himself at a gym known as HealthWorks, located at 1096 North Colony Road in that town. Pierce reported that she was sitting alone inside the gym's Jacuzzi, near the pool area, when she noticed a white male sitting in the sauna without wearing a bathing suit. The male was approximately sixty years old, bald with a little gray hair, approximately 5'7" in height, and a little overweight. A couple of minutes later, Pierce observed this male subject standing in front of a full length window at the sauna, completely naked, and fondling himself by touching his penis with his hand. When Pierce reported the incident to HealthWorks personnel and identified the defendant as having engaged in this conduct, two male workers escorted him from the premises.
Soon thereafter, a Wallingford Police officer went to the defendant's residence to speak with him about the incident. Initially denying the allegations, the defendant later admitted to taking off his bathing suit in the sauna and to sitting in the sauna unclothed. The defendant further admitted that he stood in front of the window at the sauna, but explained that the sauna's heater blocked any view through the window. Police investigation established that the sauna's heater did not block the window, but that the heater was located in a position that rendered it possible for the defendant to be standing in the window exposing himself as described by Pierce.
III. NATURE OF THE CHARGES
The court first addresses the defendant's argument that public indecency cannot be considered to be a sexually related offense in that it is not so categorized in Connecticut's Penal Code. See Title 53a, Chapter 952, Penal Code: Offenses, Part IV. Other than the organizational structure of our General Statutes, the defendant cites non authority to support this contention. Accordingly, the court looks to the language of § 53a-186(a)(2) to determine the nature of the offense at issue. There, it is apparent that a "lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person . . ." in a public place is a fundamental element of § 53a-186(a)(2). While General Statutes § 53a-65 provides many definitions of the terms used to describe criminal conduct generally identified as sexually related offenses, the text of that legislation contains no limiting provisions. Accordingly, given the plain and obvious content of § 53a-186(a)(2), the court need proceed no further than to apply General Statutes § 1-2z to respond to the defendant's textual concerns.
Section 1-2z establishes that "[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes." Here, the text of § 53a-186(a)(2) sets forth an obvious component of intention to arouse or to satisfy the offender's sexual desire before a conviction for public indecency can be obtained. Section 53a-186(a)(2) thus obligates attention to the sexual aspects, if any, of the conduct charged by the state. As such, the sexually related nature of the offense is not only implicit, but is explicit in the language of the statute at issue. Under these circumstances, the court declines to accept the defendant's proposition that § 53a-186(a)(2) is not a sexually related offense, for purposes of addressing the evidentiary issues raised by the state's motion to admit prior misconduct and by the defendant's motion in limine.
IV. USE OF PRIOR MISCONDUCT EVIDENCE
The fundamental principles underlying the proper use of prior misconduct evidence was most recently reiterated by our Supreme Court in State v. Jacobson, 283 Conn. 618, 630 (2007). There, we are reminded that "`[a]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused . . . Nor can such evidence be used to suggest that the defendant has a bad character or a propensity for criminal behavior.' (Citation omitted; internal quotation marks omitted.) State v. Nunes, 260 Conn. 649, 684, 800 A.2d 1160 (2002); see also Conn. Code Evid. § 4-5(a). Under § 4-5(b) of the Connecticut Code of Evidence, however, evidence of prior misconduct may be admitted when it is offered for a purpose other than to establish the defendant's bad character or criminal propensity. Among other things, prior misconduct evidence may be admissible to prove intent, identity, motive, malice or a common plan or scheme. Conn. Code Evid. § 4-5(b). Thus, the fact `[t]hat evidence tends to prove the commission of other crimes by the accused does not render it inadmissible if it is otherwise relevant and material . . .' (Citations omitted; internal quotation marks omitted.) State v. Hauck, 172 Conn. 140, 144, 374 A.2d 150 (1976)." State v. Jacobson, supra, 283 Conn. 630.
"`In order to determine whether such evidence is admissible, we use a two part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect . . .' (Internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 661, 835 A.2d 895 (2003)." State v. Jacobson, supra, 283 Conn. 630. "`The first prong of the test requires the trial court to determine if an exception applies to the evidence sought to be admitted.' State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994)." State v. Jacobson, supra, 283 Conn. 630-31. The second prong requires the court to acknowledge that "`[o]f course, [a]ll adverse evidence is damaging to one's case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted . . . [Accordingly] [t]he test for determining whether evidence is unduly prejudicial is not whether it is damaging to the [party against whom the evidence is offered] but whether it will improperly arouse the emotions of the jur[ors].' (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Sandoval, 263 Conn. 524, 544, 821 A.2d 247 (2003); see also Conn. Code Evid. § 4-3." CT Page 18483 State v. Jacobson, supra, 283 Conn. 639.
However, "prior misconduct evidence admitted under the common plan or scheme exception in sexual assault cases should not be admissible to prove the identity of the defendant as the perpetrator of the assault, in sexual assault cases . . ." State v. Sawyer, 279 Conn. 331 n. 1, 904 A.2d 101 (2006). This distinction in application of the exception for misconduct evidence is necessary "because the degree of similarity between the charged crime and the uncharged misconduct in unrelated incidents is the key consideration in establishing that the same individual committed both offenses. See State v. Shindell, 195 Conn. 128, 134-35, 486 A.2d 637 (1985)." (Emphasis in the original.) State v. Sawyer, supra, 279 Conn. 349-50. "`Case law has established that, on the issue of identity, the probative value of evidence of other crimes or misconduct of an accused outweighs its prejudicial impact where the methods used are sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other . . . Much more is required than the mere repeated commission of crimes of the same class. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' (Citations omitted; internal quotation marks omitted.) State v. Polliti, [ 205 Conn. 61, 69-20, 530 A.2d 155 (1987)]." (Emphasis added.) State v. Carty, 100 Conn.App. 40, 47, 916 A.2d 852 (2007).
A. COMMON PLAN OR SCHEME EXCEPTION
The court first considered the state's motion for permission to utilize Chesworth's testimony to establish the defendant's common plan or scheme as to the charge of public indecency, and the defendant's objection thereto. Under the circumstances of this case, the court found this issue in favor of the state.
"`When evidence of prior [uncharged] misconduct is offered to show a common plan or [scheme], the marks which the . . . [charged and uncharged misconduct] have in common must be such that it may be logically inferred that if the defendant is guilty of one he must be guilty of the other.' (Internal quotation marks omitted.) State v. Ellis, 270 Conn. 337, 355, 852 A.2d 676 (2004). `[T]he inference need not depend [on] one or more unique features common [to both the charged and uncharged misconduct], for features of substantial but lesser distinctiveness, although insufficient to raise the inference of considered separately, may yield a distinctive combination if considered together.' (Internal quotation marks omitted.) State v. George B., 258 Conn. 779, 791, 785 A.2d 573 (2001)." (Emphasis added.) State v. Jacobson, supra, 283 Conn. 630-31.
As found in Part III, the court has determined that the present charge of public indecency is properly acknowledged to be a sexually related offense. While acknowledging that neither of the charges raised against the defendant are based upon perfected or even attempted sexual contact, the court is informed by the distinctions drawn in our case law regarding the use of prior misconduct evidence to prove common plan or scheme, on the one hand, and identity, on the other hand. Our courts approve a "liberal standard of admissibility that governs the use of prior misconduct evidence in sexual assault cases . . ." when issues of common plan or scheme are raised. State v. Jacobson, supra, 283 Conn. 637. Thus, in such matters, "[e]vidence of another sex offense is admissible to show a common scheme or plan if the offense is proximate in time, similar to the offense charged, and committed with persons similar to the prosecuting witness." (Internal quotation marks omitted; external citation omitted.) State v. Sawyer, 279 Conn. 331, 349, 904 A.2d 101.
To guide analysis of the first, relevancy, prong of the test contemplated by Conn. Code Evid. § 4-5(b), our Supreme Court has "`held that [e]vidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan [when] the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness.' (Internal quotation marks omitted.) [ State v. George B., supra], at 792, 785 A.2d 573. Our inquiry should focus on each of the three factors because no single factor is likely to be determinative. E.g., State v. Romero, 269 Conn. 481, 498, 849 A.2d 760 (2004). Furthermore, `[w]e are more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in [trials of] sex related crimes than [in trials of] other crimes.' (Internal quotation marks omitted.) State v. George B., supra, 258 Conn. at 792, 785 A.2d 573." (Emphasis added.) State v. Jacobson, supra, 283 Conn. 631.
To apply the principles enunciated in State v. Jacobson and encapsulated in Conn. Code Evid. § 4-5(b), while examining the proffered evidence as a whole, the court must first "consider whether the uncharged misconduct was too remote in time to the charged misconduct." State v. Jacobson, supra, 283 Conn. 632. Here, the court acknowledged that the incident involving Chesworth occurred some eighteen months prior to the incident involving Pierce, but concluded that the hiatus between incidents of misconduct does not render the 2004 evidence too remote for the jury to consider in relation to the limited purpose at issue. In reaching this decision, the court has been guided by State v. Jacobson, supra, which approved the admissibility of testimony about conduct that had occurred approximately ten years prior to the incident in question, for the purpose of allowing the state to the existence of a common plan or scheme to abuse young boys sexually. Id., 627. The state's evidence in Jacobson involved evidence that, so many years before the sexual assault at issue, the defendant had engaged in grooming behavior with another young boy, by way of sleeping in the same bed with him, albeit that misconduct fell short of sexual assault. Id., 628, 632. While finding that there were sufficient parallels between the long ago uncharged and charged misconduct so as to warrant admissibility on the issue of common plan or scheme, the Supreme Court acknowledged "that an interval of six to ten years is not an insignificant period of time and that increased remoteness in time does reduce the probative value of prior misconduct evidence." Id., 632-33. Here, however, given the jury's capacity to assess the weight of the evidence presented by Chesworth relevant to common plan or scheme, in accordance with the rule of State v. Jacobson, the court has concluded that an eighteen-month lapse between the prior and present misconduct does not render the 2004 evidence too remote for admissibility.
Second, court must consider whether "the prior offenses . . . are similar to the offense charged." State v. Jacobson, supra, 283 Conn. 631. In assessing this factor, the court acknowledged that Connecticut "previously has upheld the state's use of evidence implicating the accused in a common plan or scheme to commit sexual abuse even though the uncharged misconduct did not rise to the level of a sexual assault." Id., 632, citing State v. George B., supra, 258 Conn. at 782. Here, the facts clearly indicated the defendant's use of a large window in 2004 and a full window in 2005 through which he performed the act of frontally exposing himself, in the total absence of clothing, using the same transparent instrument on each occasion through which to place his genitals in full view of any public observer. Moreover, the defendant exhibited similarly evasive behavior following his performance of lewd exposure in both 2004 and in 2005; the flight from the scene of the exposure, described by Chesworth as having occurred in 2004, is consistent with the defendant's behavior by way of initially denying the allegations in 2005, later conceding that he was in a state of undress within the sauna, and finally admitting that he stood in front of the window at the sauna. Given the totality of the circumstances presented, the facts discussed by Chesworth are so akin to those described by Pierce as to meet the requisite test of similarity. State v. Jacobson, supra, 283 Conn. 631.
The use of a window through which to perform a lewd exposure of the body with intent to arouse or to satisfy one's sexual desire of the person is sufficient to establish that such conduct occurs in a public place, where that behavior could reasonably be viewed by others, within the meaning of § 53a-186(a)(2). See, e.g., State v. Vega, 38 Conn.Sup. 313, 316, 444 A.2d 927 (1982).
Third, the court must determine "whether the prior uncharged misconduct involved a person similar to the prosecuting witnesses." CT Page 18486 Id., 633. Here, both the complainant Chesworth and the complainant Pierce are adult females. The proffered evidence is sufficient to permit the inference that each female was alone, unaccompanied, in a public place at the time and within a relatively short distance from the window through which the defendant performed the lewd acts at issue. As such, the court concluded that the conduct complained of in 2004 involved a person similar to Pierce, the prosecuting witness who is to be presented by the state in support of the present, pending charges of indecent exposure. Id.
Given the foregoing analysis and application of the State v. Jacobson principles, the court found the prior misconduct evidence is sufficiently relevant to warrant admissibility on the issue of common plan or scheme, as contemplated by Conn. Code Evid. § 4-5(b). See also State v. Labbe, 61 Conn.App. 490, 495-96, 767 A.2d 124 (2001). The foregoing facts impel like result whether or not the court utilized the "liberal standard of admissibility that governs the use of prior misconduct evidence in sexual assault cases . . ." when issues of common plan or scheme are raised, as the relevance of the prior conduct evidence in this case was clearly apparent even when viewed cooly and impartially, without liberality. See State v. Jacobson, supra, 283 Conn. 637. Nonetheless, the determination of admissibility remained subject to assessment of whether the probative value of Chesworth's testimony outweighed its prejudicial effect as contemplated by Conn. Code Evid. § 4-3 and by State v. Jacobson, supra, 283 Conn. 638. See Part V., below.
B. INTENT EXCEPTION
The court next considered the state's proposed use of Chesworth's testimony to establish the defendant's intent to commit the crime of public indecency, and the defendant's concomitant objection. The court again found this issue in favor of the state.
Circumstances under which prior misconduct evidence is admissible on the issue of a defendant's intent are explicated in State v. McFarlane, 88 Conn.App. 161, 868 A.2d 130 (2005), providing a contemporary discussion of this exception as previously set forth in State v. Amaral, 179 Conn. 239, 425 A.2d 1293 (1979) (because intent is almost always proved, if at all, by circumstantial evidence, prior misconduct evidence that the defendant had been a seller of narcotics in the past was relevant to the nature of his possession of the drug at the time of the alleged offense). See also State v. Labbe, supra, 61 Conn.App. 495-96. State v. MacFarlane, involved the prosecution of larceny, burglary and related conspiracies to commit those crimes, with allegations that the defendant had served as a lookout during their commission. State v. McFarlane holds that to prove the requisite element of intent, the state properly used evidence of "the fact that the defendant previously had served as a lookout for the other codefendants in similar burglaries [which] made it more likely that he was serving as a lookout during the crimes at issue and was not an innocent bystander as he claimed." State v. MacFarlane, supra, 88 Conn.App. 164-65. Emphasizing that there was no need for the state to meet the "high degree of similarity required for admissibility on the issue of identity [which] is not required for misconduct evidence to be admissible on the issue of intent," the Appellate Court approved the use of prior like behavior to assist in establishing the issue of the defendant's intent to commit the crime as charged. Id., 165.
Here the court found the evidence of the defendant's 2004 misconduct to be relevant to the element of intent presented through the charge of indecent exposure. Chesworth's testimony falls squarely within the exception for intent-related evidence contemplated by Conn. Code Evid. § 4-5(b). See State v. Jacobson, supra, 283 Conn. 630, citing State v. Merriam, supra, 264 Conn. 661. "The reason for admitting misconduct evidence to prove intent is that there is something in the misconduct that illuminates the defendant's criminal purpose in undertaking the crimes charged." State v. Malon, 96 Conn.App. 59, 72, 898 A.2d 843 (2006). Even without the scope of liberality, Chesworth's testimony concerning the 2004 events fully satisfies this measure insofar as the state's burden of proving relevance to the issue of the defendant's intent, in 2005, to perform a lewd exposure of his body to arouse or to satisfy his sexual desire.
Again, however, the determination of admissibility on the issue of intent remained subject to assessment of whether the probative value of Chesworth's testimony outweighed its prejudicial effect, within the meaning of Conn. Code Evid. § 4-3 and by State v. Jacobson, supra, 283 Conn. 638. See Part V., below.
C. MOTIVE EXCEPTION
In turn, the court considered the state's proffer of Chesworth's evidence to establish motive as related to the crime of public indecency. The court again found this issue in favor of the state.
In reaching this determination, the court was guided by the lessons of State v. Carter, 84 Conn.App. 263, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), certiorari denied, 544 U.S. 1066, 125 S.Ct. 2529, 161 L.Ed.2d 1120 (2005). The Appellate Court described that matter as a case arising "from the terrible consequences of a drug turf war." Id., 265. The defendant in Carter was charged with a series of violent offenses involving firearms. The state had proffered evidence that during the prior year this defendant has engaged in two separate dispute that also involved the use of firearms. Id., 277. Holding that this evidence was properly presented to the jury on the issue of motive, the court explained that "`[o]ne exception to the general rule of inadmissibility of other misconduct evidence is that such evidence is admissible to prove motive. [T]here are two components to relevant evidence: materiality and probative value . . . [E]vidence is relevant if it has a tendency to establish the existence of a material fact . . . Evidence of motive is a highly relevant factor for assessing the guilt or innocence of a defendant . . . [E]vidence otherwise relevant and material is not rendered inadmissible because it tends to prove that an accused committed other crimes . . . Motive is a fact which may be inferred from circumstances; hence the circumstances from which it may be inferred are relevant.' (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Faria, 47 Conn.App. 159, 169, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998)." (Emphasis in the original.) Id., 278.
As in State v. Carter, Chesworth's testimony in the present case is relevant to prove the defendant's motive, and thus relevant to assessing his guilt or innocence of the crime of indecent exposure. State v. Carter, supra, 84 Conn.App. 278. The evidence of the defendant's use of the window through which to expose himself to an unaccompanied, adult female observer in March of 2004 "tended to establish that he had a reason to be involved" in the same conduct with a like mechanism and a like subject in September of 2005. See State v. Carter, supra, 84 Conn.App. 279.
Once more, however, the determination of the admissibility of Chesworth's testimony on the subject of motive remained subject to assessment of whether the probative value of that evidence outweighs its prejudicial effect, as contemplated by Conn. Code Evid. § 4-3 and by State v. Jacobson, supra, 283 Conn. 638. See Part V., below.
D. IDENTITY EXCEPTION
Finally, the court considered the state's proffer of Chesworth's evidence to establish identity, and the defendant's objection thereto. At oral argument on October 9, 2007, the state candidly conceded that the facts to be elicited from Chesworth, concerning the defendant's misconduct in 2004, did not rise to the level of a "signature" crime. The court found that the state here had failed to establish the "`distinctive combination of factors' that justifies the inference that the individual who committed the first offense also committed the second." State v. Sawyer, supra, 279 Conn. 347. Accordingly, it would be "improper to admit the evidence of misconduct on the issue of identity . . ." State v. Malon, supra, 96 Conn.App. 71. Thus, the court found this issue in favor of the defendant.
In State v. MacFarlane, supra, the Appellate Court reminded us of the rigorous standard that must be met before the court may properly permit the use of prior misconduct to establish identity, as opposed to intent, motive, and/or common plan or scheme. State v. MacFarlane, supra, 88 Conn.App. 165. "`The first threshold for the use of evidence of other crimes or misconduct on the issue of identity is that the methods used be sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other . . . [I]n proffering [prior misconduct] evidence [t]o prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused . . . much more is demanded than the mere repeated commission of crimes of the same class . . . The device used must be so unusual and distinctive as to be like a signature . . . There should [be no] significant differences in the context and modus operandi of the crimes . . . In order to determine if this threshold criterion for admissibility has been met, we must examine the proffered evidence and compare it to the charged offenses . . .'" State v. Sawyer, supra, 279 Conn. 334, citing State v. Merriam, supra, 264 Conn. 665-66.
"In comparing the proffered misconduct evidence and the crimes with which the defendant was charged, [t]he fact that some of the similarities between the offenses were legal or relatively common occurrences when standing alone does not . . . negate the uniqueness of the offenses when viewed as a whole. It is the distinctive combination of actions which forms the signature or modus operandi of the crime . . . and it is this criminal logo which justifies the inference that the individual who committed the first offense also committed the second . . . In other words, [t]he process of construing an inference of [i]dentity . . . usually [consists of] adding together a number of circumstances, each of which by itself might be a feature of many objects, but all of which together make it more probable that they coexist in a single object only. Each additional circumstance reduces the chances of there being more than one object so associated. The process thus corresponds accurately to the general principle of relevancy. (Citations omitted; internal quotation marks omitted.) State v. Merriam, [ supra, 264 Conn. 665-66]." State v. Sawyer, supra, 279 Conn. 334-45; see also State v. Figueroa, 235 Conn. 145, 164, 665 A.2d 63 (1995) (determining the trial court did not abuse its discretion when it permitted the state to introduce uncharged misconduct evidence to prove the identity of the victim's assailant because the characteristics of the two assaults were sufficiently distinctive and unique to be "like a signature").
In State v. Sawyer, the proffered identity evidence was found to be insufficiently signature-like to warrant admissibility. In Sawyer, the defendant was charged with, among other things, sexual assault in the first and third degrees and threatening in connection with an incident in which he allegedly sexually assaulted a neighbor at knifepoint and threatened to kill her if she reported his abuse. State v. Sawyer, supra, 279 Conn. 331. On the issue of identity, the state proffered evidence of the defendant's prior misconduct in telephoning his former wife, the sister of the neighbor-victim of the crimes alleged, threatening to "make her life miserable" if she did not engage in sexual relations with him. Id., 338. Finding only a limited degree of similarity between the prior conduct and the crimes at issue, the Supreme Court rejected the state's use of the evidence to establish the defendant's identity, as contemplated by Conn. Code Evid. § 4-5(b). Id., 345. While acknowledging the potential existence of some like features of the past and current behavior, the court concluded that "there were few, if any, similarities between the charged crimes and the uncharged misconduct evidence . . . Under the applicable principles of law, a comparison of the charged crimes and the uncharged misconduct evidence offered to prove the identity of the assailant must focus on `the distinctive combination of actions which forms the signature or modus operandi of the crime . . . Accordingly, because there were no significant and compelling similarities between the charged and uncharged offenses and thus no evidence of a distinctive `criminal logo' . . . we conclude that the trial court abused its discretion in permitting the state to introduce the evidence of the threatening telephone call to establish the identity of [the neighbor's] assailant." Id., 346.
In the present case, a comparison of the present public indecency charge and the 2004 misconduct evidence fails to demonstrate "the distinctive combination of actions which forms the signature or modus operandi of the crime . . ." and thus should not be permitted to prove the identity of the offender. (Emphasis added; internal quotation marks omitted.) State v. Merriam, supra, 264 Conn. at 665, quoting State v. Figueroa, supra, 235 Conn. at 164; see also State v. Sawyer, supra, 279 Conn. 345. Accordingly, as there were no significant, compellingly unique similarities between the charged and uncharged offenses, the court could not find the distinctive "criminal logo" required for the state to properly use prior conduct evidence to establish the identity of the person who exposed his genitals to Pierce. State v. Sawyer, supra, 279 Conn. 346, citing State v. Merriam, supra, 264 Conn. 665. See also State v. Sierra, 213 Conn. 422, 431-33, 568 A.2d 448 (1990) (uncharged misconduct evidence inadmissible to establish defendant's identity because incidents not so unusual or distinctive as to be like signature); State v. Ibraimov, 187 Conn. 348, 352-54, 446 A.2d 382 (1982) (uncharged misconduct evidence inadmissible to establish defendant's identity because shared characteristics of charged and uncharged misconduct insufficiently distinctive to support reasonable belief that same person committed both). Accordingly, Chesworth's testimony cannot be admitted to prove the identity of the individual who performed a lewd act at HealthWorks in September 2005. State v. Sawyer, supra, 279 Conn. 346-47.
V. THE BALANCING TEST
Although the court has determined that the state's proffer of prior misconduct evidence is appropriately relevant to and probative of the issues of intent, motive, and common plan or scheme, the evidence yet cannot be admitted unless it passes the "balancing test under which the probative value of proffered evidence is weighed against the harm likely to result from its admission," as contemplated by Conn. Code Evid. § 4-3. The court found this issue in favor of the state, and accordingly granted in part the relief requested by the prosecution, while denying the defendant's motion in limine.
As discussed in Part IV., the court declines to permit the state to utilize the prior misconduct evidence to establish identity. Accordingly, the court has not reviewed the probative value of that evidence qua its potentially prejudicial effect. See Conn. Code Evid. § 4-3.
In conducting the balancing test for admissibility, insofar as analysis of potential harm to is concerned, the court noted that the defendant had not here established any degree to which he might have been affected, even in the preparation of his case, "by the danger of unfair prejudice or surprise" as the result of Chesworth's testimony and/or the prior conduct evidence related to the events of March 2004. See Conn. Code Evid. § 4-3. Nor did the defendant provide sufficient basis from which the court could reasonably conclude that the jury could be confused by the use of this evidence to prove intent, motive and/or common plan or scheme, in view of the relative simplicity of the proffered facts and the availability of cautionary and limiting instructions such as those utilized in State v. MacFarlane, supra, 88 Conn.App. 166 n. 2. Similarly, the defendant had failed to provide adequate basis for conclusion that the allowance of this evidence would present concerns related either to "undue delay, waste of time or needless presentation of cumulative evidence" as contemplated by Conn. Code Evid. § 4-3.
Fairly applying this general analysis to the present case, the court declined to accept the defendant's claim that the relevance of the challenged evidence was outweighed by its potential prejudicial effect. As discussed in Part IV., above, whether a liberal or more cautionary assessment of the proffered facts is used, the court has concluded that Chesworth's testimony is relevant and material to the issues of establishing that the defendant had the motive and/or intent to commit the crime of indecent exposure in 2005. In addition, by either a liberal or cautionary measure, the court determined that the facts of the prior conduct were relevant and material to the issue of common plan or scheme to engage in the proscribed conduct that is the subject of the present prosecution. Although the court did not doubt that Chesworth's testimony might be adverse and even damaging to the defendant, there was inadequate basis for concluding that this evidence was of such an inflammatory nature, likely to arouse unduly the jurors' emotions, hostility or sympathy, or that it was otherwise so prejudicial that its probative value was overcome. See State v. Jacobson, supra, 283 Conn. 639-40.
To counter this finding, the defendant generally relied upon Conn. Code Evid. § 4-3, arguing that any value of the claimed prior misconduct evidence should have been excluded due to its inherently prejudicial effect. He has failed, however, to provide sufficient basis from which the court could reasonably conclude that the evidence at issue is overly adverse to him, within the meaning of the applicable legal measures. The defendant tacitly "argues that the similarity of the crimes [makes] the uncharged misconduct more prejudicial than probative because the jury would be more likely to view the misconduct as propensity evidence. That argument was disposed of in cases such as State v. Amaral, supra, 179 Conn. 244, in which our Supreme Court determined that the mere fact that the uncharged misconduct and the charged crime are similar does not make the uncharged misconduct evidence overly prejudicial . . . Although some prejudice naturally flows from such evidence, that evidence was not of the variety that would shock the jury or inflame its passions. Moreover, any prejudice [may be] minimized by the court's limiting instruction to the jury on the proper use of the misconduct evidence." (Footnote omitted; external citation omitted.) State v. MacFarlane, supra, 88 Conn.App. 165-66. Such appropriate protections were utilized by the court to effectively limit the jury's use of the 2004 evidence.
As in MacFarlane, the defendant might have complained that because the events of 2004 occurred inside a residential building, not a gym, and involved exposure to a female at work rather than to a female at leisure, the evidence is too dissimilar to be considered for admission, and is thus overly prejudicial. State v. McFarlane, 88 Conn.App. 165. The court rejected this aspect of the defendant's contention, the court acknowledged case law which confirms that "[t]he high degree of similarity required for admissibility on the issue of identity is not required for misconduct evidence to be admissible on the issue of intent." (External citations omitted.) Id. Using the appropriate level of comparison between the prior misconduct and the alleged offense of indecent exposure, the court was constrained to conclude that despite the fact that the defendant's exposures occurred in different environmental settings, the same general degree of genital exposure occurred through windows of substantial size, and the same general nature of lewd conduct was performed in the public view of the same general type of unescorted adult female. Accordingly, the prior conduct bears "a sufficient similarity to the charged crimes to be admissible" for the limited purposes identified by the court. State v. McFarlane, supra, 88 Conn.App. 165.
VI. ORDERS
WHEREFORE, the court ordered that the state was permitted to present before the jury evidence of the defendant's misconduct, occurring on or about March 30, 2004, through the testimony of Tina Chesworth, as such was relevant to the issues of intent, motive or a common plan or scheme to commit the crime of indecent exposure on or about September 15, 2005, and as such was more probative than prejudicial as to those specified exceptions to the rule against admissibility of prior conduct, set forth in Conn. Code Evid. § 4-5.