STATE v. JORGE P., SC 18711

Judicial District of Danbury

     Criminal; Evidence; Whether the Defendant's Claim Challenging the Admissibility of Expert Testimony was Unpreserved; Whether Expert Testimony was Improperly Admitted on the Ultimate Issue of Whether the Victims Were Sexually Abused.  The victims, S and G, are two minor sisters. In 2006, they disclosed to their mother that the defendant gave them toys, stickers or candies after touching them.  The victims, thereafter, underwent a physical examination by a physician, Veronica Ron-Priola, which revealed that G had a mild protrusion of the urethra, which was normal, and that S had a complete transection of the hymen, which was indicative of blunt trauma penetration into the vagina.  Subsequently, the defendant was charged with two counts of first degree sexual assault and multiple counts of risk of injury to a child.  During trial, the state called Ron-Priola to testify as an expert witness.  Defense counsel objected to the admission of her testimony.  In the course of explaining the basis for his objection, defense counsel asked for an offer of proof regarding the physician's anticipated testimony.  Defense counsel asserted that an offer of proof was necessary because it was not clear to him how Ron-Priola could testify "to a reasonable degree of medical probability that [S] was sexually assaulted by [the defendant]."  After the state made an offer of proof concerning Ron-Priola's testimony, the court permitted her to testify.  After trial, the jury found the defendant guilty on all charges.  On appeal, the defendant claimed that the trial court impermissibly allowed Ron-Priola to testify, both directly and indirectly, as to the ultimate issue of whether S and G were sexually abused.  The defendant maintained that the claim was preserved when, prior to the state's offer of proof, his attorney unsuccessfully objected to the admission of Ron-Priola's testimony on the ground that she would be improperly testifying about the ultimate issue and on S's and G's veracity by stating that they had been sexually abused.  The Appellate Court (124 Conn. App. 99) observed that although defense counsel raised concerns regarding whether Ron-Priola might be testifying as to the ultimate issue in the case, defense counsel did not, in fact, object to the admission of the testimony on that ground.  Rather, the court opined that defense counsel's purpose in objecting to the admission of Ron-Priola's testimony was to require the state to make an offer of proof concerning her testimony.  In light of its conclusion that the defendant offered no objection at trial to the testimony, the court determined that the defendant's claim challenging its admissibility was unpreserved and, therefore, unreviewable.  In this appeal, the Supreme Court will determine whether the Appellate Court correctly concluded that the defendant's claim challenging the admission of Ron-Priola's testimony was unpreserved and, if not, whether she improperly opined on the ultimate issues in the case.