State v. Joseph B. , 187 Conn. App. 106 ( 2019 )


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    STATE OF CONNECTICUT v. JOSEPH B.*
    (AC 40847)
    Alvord, Moll and Bear, Js.
    Syllabus
    Convicted of the crimes of sexual assault in the first degree, sexual assault
    in the third degree, and risk of injury to a child in connection with his
    alleged sexual abuse of the minor victim, the defendant appealed. On
    appeal, he claimed, inter alia, that the trial court erred by denying his
    motion for a bill of particulars because the substitute information was
    overly broad and vague, which deprived him of notice of the nature of
    the charges brought against him and his right to present a defense. Held:
    1. The trial court did not abuse its discretion in denying the defendant’s
    motion for a bill of particulars: the defendant was not prejudiced by
    the court’s denial of his motion, as he had access to a copy of the
    victim’s forensic interview, which contained statements of the victim
    that he claimed gave the state knowledge of more specific dates, the
    victim testified as to the specific instances at trial as well, and the
    defendant did not attempt to offer an alibi with regard to the specific
    instances identified by the victim or request a continuance to formulate
    an alibi; moreover, the defendant failed to demonstrate how he would
    have prepared his defense differently had the state charged him in
    accordance with the victim’s statements made during her forensic
    interview.
    2. The defendant could not prevail in his claim that the trial court improperly
    admitted evidence that the victim tested positive for a certain sexually
    transmitted disease: the fact that the victim was diagnosed with a sexu-
    ally transmitted disease was relevant and probative as to the victim’s
    having had sexual contact, and given the victim’s testimony that the
    defendant had sexual contact with her when he assaulted her through
    penile-vaginal penetration and her medical records, which provided that
    she was not sexually active, her diagnosis logically tended to prove that
    she had sexual contact with an individual, and the evidence that she
    had the requisite contact only with the defendant made it more likely
    that the defendant engaged in the conduct with which he was charged;
    moreover, the evidence pertaining to the victim’s diagnosis was not
    unduly prejudicial, as the victim testified that the defendant sexually
    assaulted her before the jury heard testimony regarding her diagnosis,
    the testimony of the victim’s mother regarding the victim’s change in
    behavior corroborated the victim’s report of the assault, the evidence
    pertaining to the victim’s diagnosis was consistent with other evidence
    presented by the state, and the trial court gave the jury a specific
    instruction, which it was presumed to have followed, not to consider
    the evidence of the victim’s diagnosis for the purpose of determining
    whether it was the defendant who infected the victim.
    3. The trial court did not abuse its discretion in denying the defendant’s
    motion to preclude evidence of certain text messages from the defendant
    to the victim’s mother:
    a. The defendant could not prevail in his claim that the text messages
    should have been precluded as untimely because the prosecutor knew
    or should have known of their existence prior to their disclosure at the
    start of trial; the prosecutor complied with discovery requirements by
    timely disclosing the evidence to the trial court and defense counsel on
    the same morning that the victim’s mother informed her of the messages,
    and although the defendant relied on certain reports in support of his
    claim that the prosecutor should have been aware of the text messages,
    those reports did not specify the content of any text messages or contain
    information that there was text message evidence of the defendant’s
    offerings of gifts or money.
    b. The defendant’s claim that the evidence of text messages should have
    been precluded as a sanction under the applicable rule of practice (§ 40-
    5) was unavailing; because the prosecutor timely disclosed evidence of
    the text messages, which the defendant conceded that he sent to the
    victim’s mother, the prosecutor complied with discovery requirements
    and, therefore, it was unnecessary for the trial court to impose the
    sanctions provided by § 40-5.
    Argued September 26, 2018—officially released January 15, 2019
    Procedural History
    Substitute information charging the defendant with
    two counts of the crime of sexual assault in the first
    degree, two counts of the crime of sexual assault in
    the third degree, and six 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
    Kavanewsky, J; verdict and judgment of guilty of one
    count of sexual assault in the first degree, one count
    of sexual assault in the third degree, and four counts
    of risk of injury to a child, from which the defendant
    appealed. Affirmed.
    James B. Streeto, senior assistant public defender,
    with whom was Zachary Peck, former certified legal
    intern, for the appellant (defendant).
    Nancy L. Chupak, senior assistant state’s attorney,
    with whom, on the brief, were John C. Smriga, state’s
    attorney, and Ann P. Lawlor, senior assistant state’s
    attorney, for the appellee (state).
    Opinion
    ALVORD, J. The defendant, Joseph B., appeals from
    the judgment of conviction, rendered following a jury
    trial, of one count of sexual assault in the first degree
    in violation of General Statutes § 53a-70 (a) (2), one
    count of sexual assault in the third degree in violation
    of General Statutes § 53a-72a (a) (2), two counts of risk
    of injury to a child in violation of General Statutes § 53-
    21 (a) (1), and two counts of risk of injury to a child
    in violation of § 53-21 (a) (2).1 On appeal, the defendant
    claims that the trial court abused its discretion when
    it (1) denied his motion for a bill of particulars, (2)
    admitted evidence that the victim was diagnosed with
    trichomonas vaginalis, and (3) admitted evidence of
    text messages that were disclosed on the first day of
    trial. We affirm the judgment of the trial court.
    The jury reasonably could have found the following
    facts. From 2010 to 2013, the defendant lived with his
    wife in the third floor apartment of a multi-family home
    on Jefferson Street in Bridgeport. The victim, A, who
    is the defendant’s biological granddaughter, was five
    years old in 2010 and lived with her mother and her
    brother in the first floor apartment at that same address.
    A went upstairs to the defendant’s apartment almost
    every day after she got home from school. On more
    than one occasion, when the defendant’s wife was not
    home, the defendant touched A’s chest, vagina, and
    lower back while A’s clothes were off. A specifically
    remembered one instance in which she was lying on
    the defendant’s bed and he was going to touch her when
    they heard her cousin coming up the stairs. In addition,
    on a different occasion, the defendant asked A if she
    could bring over her friend, who lived across the street,
    so that he could do the same to her friend.
    In February, 2013, the defendant moved to Birch
    Drive in Stratford. A’s mother brought A to the defen-
    dant’s apartment two weekends per month, during
    which A stayed overnight, in order for the defendant
    and the defendant’s wife to watch A while A’s mother
    worked. While the defendant lived at this address, he
    repeatedly engaged in penile-vaginal and penile-anal
    intercourse with A. Some instances of penetration
    occurred during the summer between A’s third and
    fourth grade school years. During that summer, the
    defendant also asked A to place her hand on his penis
    a few times, and although she refused at first, she even-
    tually complied. When A started fourth grade, her
    behavior changed at school, and she became physically
    aggressive on two different occasions, which was out
    of character for A. A also experienced three incidents
    of bedwetting.2
    In November, 2014, when A was nine, she was watch-
    ing television at the defendant’s apartment when she
    heard the defendant call her name. She went into his
    room, where he told her to take off her clothes and to
    lie on the bed. The defendant then engaged in penile-
    vaginal intercourse with A.3 The defendant told A that
    if she told anyone, he would go to jail, and asked, ‘‘do
    you want your grandfather to go to jail[?]’’
    A few weeks later, A wrote a note to her mother
    disclosing that the defendant had been sexually
    assaulting her.4 A’s mother immediately contacted the
    police, as well as A’s doctor. On December 2, 2014, A
    was examined by Sarah Donahue, a nurse practitioner
    who worked at A’s doctor’s office. A told Donahue that
    the defendant sexually assaulted her through penile-
    vaginal penetration in excess of twenty-five times. Dur-
    ing the physical examination, Donahue did not observe
    any signs of trauma,5 but she immediately referred A
    to the Yale Child Sexual Abuse Clinic at Yale-New
    Haven Hospital.
    At the Yale Child Sexual Abuse Clinic, A was exam-
    ined by Rebecca Moles, a pediatrician specializing in
    issues of child abuse. Dr. Moles reported that A had
    ‘‘normal appearing genital anatomy’’ and that the anat-
    omy, including her hymen and the tissue surrounding
    the outside of the vagina, appeared ‘‘normally formed.’’6
    During the examination, Dr. Moles also observed that
    A had vaginal discharge, which she recognized to be a
    symptom of trichomonas vaginalis, a sexually transmit-
    ted disease. After testing A, Dr. Moles confirmed that
    A was infected with trichomonas vaginalis.
    In the beginning of December, 2014, after A’s mother
    reported the sexual abuse to the police, the defendant
    sent several text messages to A’s mother. In these text
    messages, the defendant told A’s mother that he had
    money for her, A, and A’s brother. The defendant also
    sent a text message to A’s mother stating that he would
    buy her a gift if she would accept it.
    On December 10, 2014, Detective William Perillo of
    the Stratford Police Department interviewed the defen-
    dant at the defendant’s home. When Detective Perillo
    began to question the defendant, he asked whether
    Detective Perillo had any DNA evidence. In addition,
    he told Detective Perillo that A was not a liar, but that
    he was not involved in what they were talking about.
    On January 2, 2015, Detective Perillo arrested the
    defendant.
    A jury trial followed, at the conclusion of which the
    defendant was found guilty of one count of sexual
    assault in the first degree, one count of sexual assault
    in the third degree, and four counts of risk of injury to
    a child.7 The court rendered judgment in accordance
    with the jury’s verdict and imposed a total effective
    sentence of eighteen years imprisonment and lifetime
    sex offender registration. This appeal followed. Addi-
    tional facts will be set forth as necessary.
    I
    The defendant claims that the trial court abused its
    discretion when it denied his motion for a bill of particu-
    lars. Specifically, the defendant asserts that the substi-
    tute information was overly broad and vague, depriving
    him of notice of the nature of the charges brought
    against him and his right to present a defense. He argues
    that the state should have narrowed the time periods
    in the information using A’s forensic interview. He
    claims the court’s denial of his motion for a bill of
    particulars prejudiced his defense. We disagree that the
    denial of the motion prejudiced the defendant.
    The following additional facts and procedural history
    are relevant to our resolution of this claim. On Decem-
    ber 5, 2014, A underwent a forensic interview at the
    Family Justice Center in Bridgeport.8 During the inter-
    view, A described some of the incidents as having
    occurred (1) when she ‘‘just turned six,’’ (2) ‘‘at the end
    of the [previous] school year,’’ (3) ‘‘during [her] summer
    break between third and fourth grade,’’ and (4) ‘‘the
    second Sunday of November of 2014.’’9
    The state filed a long form information on February
    4, 2015, charging the defendant with sexual assault in
    the first degree, sexual assault in the third degree, and
    risk of injury to a child, arising out of conduct that
    occurred in June, 2012, at Birch Drive in Stratford.
    On April 12, 2016, the state filed a ten count substitute
    information. The information charged the defendant
    with sexual assault in the first degree, sexual assault
    in the third degree, and two different counts of risk of
    injury to a child for conduct that occurred ‘‘on diverse
    dates from approximately 2010 to 2012, at or near Jeffer-
    son Street’’ in Bridgeport. In addition, the substitute
    information charged the defendant with two different
    counts of risk of injury to a child for conduct that
    occurred ‘‘on diverse dates, from approximately 2010
    to 2012, at or near Hollister Avenue’’10 in Bridgeport.
    The defendant was also charged with sexual assault in
    the first degree, sexual assault in the third degree, and
    two different counts of risk of injury to a child for
    conduct occurring ‘‘on diverse dates during 2013 and
    2014, at or near . . . Birch Drive’’ in Stratford.
    On April 18, 2016, the defendant filed a motion for a
    bill of particulars, requesting that the court order the
    state to include the date, time, particular location, and
    manner of the commission of each alleged count. In
    his motion, the defendant argued that (1) it was impossi-
    ble to determine if the offenses charged in the substitute
    information stemmed from a minimum of three inci-
    dents or a maximum of ten incidents, (2) alleging
    ‘‘diverse dates’’ in each count ‘‘incorrectly allows the
    [s]tate to combine incidents from different dates to
    make up elements of the crime,’’ and (3) ‘‘[e]ach count
    has a time period of approximately [two] years during
    which time the [s]tate alleges each crime occurred.’’
    The defendant argued that the substitute information
    was insufficient to enable him to prepare a defense.
    The court scheduled a hearing on this motion for April
    19, 2016.
    On April 19, 2016, before the hearing on the motion for
    a bill of particulars, the state filed the operative sub-
    stitute information. The first two counts of the ten count
    substitute information charged the defendant with risk
    of injury to a child for conduct that occurred ‘‘during
    2010, at or near . . . Holly Street’’ in Bridgeport.
    Counts three through six charged the defendant with
    two different counts of risk of injury to a child, sexual
    assault in the first degree, and sexual assault in the
    third degree for conduct that occurred ‘‘on or about
    2010 through 2013, at or near . . . Jefferson Street’’
    in Bridgeport. Counts seven through ten charged the
    defendant with sexual assault in the first degree, two
    different counts of risk of injury to a child, and sexual
    assault in the third degree for conduct occurring ‘‘on
    or about 2013 through 2014, at or near . . . Birch
    Drive’’ in Stratford.
    At the hearing, the defendant acknowledged that the
    state’s substitute information filed earlier that day
    resolved some of his issues with the previous substitute
    information, particularly with the deletion of the
    ‘‘diverse dates’’ language from each count. The defen-
    dant maintained, however, that he still did not know
    the number of alleged incidents, which, he argued, ‘‘puts
    the defense at a disadvantage because the [s]tate can
    then basically form their closing argument and form
    their evidence to the pleadings in various ways.’’ In
    addition, the defendant argued that the 2010 through
    2013 time frame, alleged in counts seven through ten,
    made it difficult to ‘‘fashion any kind of alibi defense or
    recollection defense in terms of factual inconsistencies
    that [the defendant] could provide pertaining to those
    incidents . . . .’’ At the conclusion of the hearing,
    the court determined that the substitute information
    filed that day was legally sufficient and denied the
    defendant’s motion for a bill of particulars. Specifically,
    the court concluded that the substitute information
    narrowed the time periods of the offenses and ‘‘clearly
    track[ed]’’ the defendant’s residences where the
    offenses were alleged to have occurred. In addition, the
    court noted that the defendant had the benefit of the
    full disclosure to which he was entitled, including police
    reports and statements. Lastly, the court concluded that
    it did not know how A would testify and that her testi-
    mony might eliminate some of the defendant’s con-
    cerns.
    At trial, after the state presented its case, the defen-
    dant renewed his motion for a bill of particulars. He
    again argued that he did not know how many incidents
    were alleged to have occurred based on the state’s
    charges. In response, the state argued that A ‘‘testified
    very clearly about multiple incidents of sexual abuse
    at the hands of her grandfather.’’ The court denied the
    defendant’s motion.
    The defendant’s wife subsequently testified on the
    defendant’s behalf. She initially testified that A was
    never left at home alone with the defendant. She later
    testified, however, that she had been away from the
    home for about two months in 2014. In addition, the
    defendant’s wife stated that there were a few days dur-
    ing the summer of 2014, in between A’s third and fourth
    grade school years, when the defendant watched A by
    himself. The defendant’s wife also testified that A was
    left home alone with the defendant on the morning of
    November 2, 2014, when she went to church without A.11
    The defendant took the witness stand and denied
    that he touched and sexually assaulted A. The defend-
    ant testified that he was unemployed from 2010 to 2013
    and spent his time playing pool and gambling at a club
    in Bridgeport. He explained that he would ‘‘miss two,
    three days some week[s]’’ because he sometimes
    ‘‘wouldn’t go on a Tuesday or some days [he] wouldn’t
    go on a Wednesday, but every Thursday, Friday and
    Saturday, [he] would be there.’’ In 2013, the defendant
    became a bookkeeper for the club. He testified that he
    worked every day of the week from 8 a.m. to 10 p.m.
    The defendant also testified, however, that he did not
    work on Sundays during the summer of 2014, which
    was the summer in between A’s third and fourth grade
    school years. In addition, the defendant explained that,
    although A went to church with his wife on most Sun-
    days, there were occasions that A stayed home with
    the defendant by himself. He specifically recalled that
    there was a Sunday in the beginning of November, 2014,
    the last time that A went to his apartment, when his
    wife went to church and A stayed at the apartment alone
    with the defendant. When asked whether he touched
    A in any way on that Sunday, the defendant responded,
    ‘‘No, I did not. I never did really have any problem. We
    had a good relationship.’’
    In its final charge to the jury, the court instructed:
    ‘‘[T]here may have been testimony from [A] that the
    defendant committed these crimes against her more
    than once during the time periods stated in these
    counts, although she could not specify exact dates. The
    [s]tate is not required to prove the exact date of any
    offense so long as it proves beyond a reasonable doubt
    that a crime, that is, all the elements of the crime, did
    occur at least once on the same single occasion during
    the time period covered in a particular count.’’
    We begin by setting forth the standard of review and
    the legal principles that guide our analysis of this claim.
    ‘‘[T]he denial of a motion for a bill of particulars is
    within the sound discretion of the trial court and will
    be overturned only upon a clear showing of prejudice
    to the defendant. . . . A defendant can gain nothing
    from [the claim that the pleadings are insufficient] with-
    out showing that he was in fact prejudiced in his defense
    on the merits and that substantial injustice was done
    to him because of the language of the information.’’
    (Citations omitted; internal quotation marks omitted.)
    State v. McDougal, 
    241 Conn. 502
    , 521–22, 
    699 A.2d 872
    (1997); see also State v. Spigarolo, 
    210 Conn. 359
    , 385,
    
    556 A.2d 112
    , cert. denied, 
    493 U.S. 933
    , 
    110 S. Ct. 322
    ,
    
    107 L. Ed. 2d 312
     (1989). ‘‘The defendant has the burden
    of showing why the additional particulars were neces-
    sary to the preparation of his defense.’’ (Internal quota-
    tion marks omitted.) State v. Vumback, 
    263 Conn. 215
    ,
    221, 
    819 A.2d 250
     (2003).
    ‘‘The sixth amendment to the United States constitu-
    tion and article first, § 8, of the Connecticut constitution
    guarantee a criminal defendant the right to be informed
    of the nature and cause of the charges against him with
    sufficient precision to enable him to meet them at trial.
    . . . [That] the offense should be described with suf-
    ficient definiteness and particularity to apprise the
    accused of the nature of the charge so he can prepare
    to meet it at his trial . . . are principles of constitu-
    tional law [that] are inveterate and sacrosanct.’’ (Cita-
    tions omitted; internal quotation marks omitted.) State
    v. Laracuente, 
    205 Conn. 515
    , 518, 
    534 A.2d 882
     (1987),
    cert. denied, 
    485 U.S. 1036
    , 
    108 S. Ct. 1598
    , 
    99 L. Ed. 2d 913
     (1988). Moreover, ‘‘[t]he state has a duty to
    inform a defendant, within reasonable limits, of the
    time when the offense charged was alleged to have been
    committed. The state does not have a duty, however,
    to disclose information which the state does not have.
    Neither the sixth amendment of the United States con-
    stitution nor article first, § 8, of the Connecticut consti-
    tution requires that the state choose a particular
    moment as the time of an offense when the best infor-
    mation available to the state is imprecise.’’ State v.
    Stepney, 
    191 Conn. 233
    , 242, 
    464 A.2d 758
     (1983), cert.
    denied, 
    465 U.S. 1084
    , 
    104 S. Ct. 1455
    , 
    79 L. Ed. 2d 772
     (1984).
    The defendant claims that he was prejudiced by the
    court’s denial of his motion for a bill of particulars. It
    is undisputed, however, that, at the time of the hearing
    on the motion, the defendant had access to a copy of
    A’s forensic interview. ‘‘[T]his court has on numerous
    occasions adverted to sources extrinsic to the specific
    count or information to determine whether the defen-
    dant was sufficiently apprised of the offense charged.
    See, e.g., State v. Frazier, [
    194 Conn. 233
    , 237, 
    478 A.2d 1013
     (1984)] (defendant sufficiently apprised where he
    had access to state’s file, police reports and demonstra-
    tive evidence); State v. Beaulieu, 
    164 Conn. 620
    , 626,
    
    325 A.2d 263
     (1973) (information supplied by another
    count, state’s attorney and court); see also State v. Mof-
    fett, 
    38 Conn. Supp. 301
    , 310, 
    444 A.2d 239
     (1981) (defen-
    dant’s access to prosecution file).’’ State v. Spigarolo,
    supra, 
    210 Conn. 384
    .
    In State v. Vumback, supra, 
    263 Conn. 216
    –17, our
    Supreme Court concluded that the defendant had failed
    to demonstrate prejudice from the trial court’s denial
    of his motion for a bill of particulars. The defendant
    was charged with repeatedly sexually abusing and
    attempting to sexually abuse a child victim on ‘‘[diverse]
    dates between approximately June, 1990 and July, 1996
    . . . .’’ (Internal quotation marks omitted.) Id., 219.
    Although the operative information alleged that the
    offenses occurred over a six year period, the state had
    previously filed four informations alleging more specific
    time frames, such as between July 1 and July 10, 1996,
    between July 5 and July 10, 1996, and between July 5
    and July 15, 1996. Id. In addition, the victim had reported
    that two instances of sexual abuse occurred two weeks
    before, and two days before, her physician appoint-
    ments. Id., 224. The victim testified at trial that no one
    ever had asked her to pinpoint the specific dates on
    which the sexual assaults by the defendant occurred.
    Id. For these reasons, the court concluded that the state
    did not use its best efforts to provide a more narrow
    time frame to the defendant. Id., 224–25. Accordingly,
    the court determined that the trial court abused its
    discretion by denying the defendant’s motion for a bill
    of particulars. Id., 227.
    The court in Vumback concluded, however, that
    although the trial court abused its discretion by deny-
    ing the defendant’s motion for a bill of particulars, the
    defendant had failed to demonstrate prejudice from the
    court’s decision. Id. In reaching its conclusion, the court
    found that the defendant did not demonstrate that the
    more specific dates that the state possessed were neces-
    sary to his defense. Id., 228–29. Specifically, the court
    noted that, although the defendant introduced general
    alibi evidence that he was often working or taking
    classes, after the victim testified about two specific
    dates of abuse, the defendant did not attempt to offer
    an alibi with regard to them or request a continuance
    to formulate an alibi. Id., 229–30. Most significantly, the
    defendant was aware of the state’s prior informations
    and had access to the state’s file before trial, which
    included the reports containing the dates he claimed
    were missing from the information. Id., 228–29.
    Although we recognize that the state could have pro-
    vided a more specific time frame with respect to the
    final incident that occurred in November, 2014, we need
    not decide whether the court abused its discretion in
    failing to grant the defendant’s motion on that basis.
    Even if we assume that the court abused its discretion,
    the defendant in the present case failed to demonstrate
    prejudice for the same reasons as the defendant in
    Vumback. Just as the defendant in Vumback had access
    to the prior informations and reports, the defendant in
    the present case had a recording of A’s forensic inter-
    view. The forensic interview contained A’s statements
    that the defendant claims gave the state knowledge of
    more specific dates. A testified as to these specific
    instances at trial as well. Yet, like the defendant in
    Vumback, the defendant here did not attempt to offer
    an alibi with regard to the specific instances identified
    by A or request a continuance to formulate an alibi.
    For example, with regard to the penile-vaginal inter-
    course in November, 2014, the defendant did not pre-
    sent alibi evidence. Instead, the defendant admitted that
    he had been alone with A while his wife went to church
    but denied the allegations of sexual abuse. In addition,
    with regard to the summer between A’s third and fourth
    grade school years, the defendant offered general alibi
    evidence that he worked ‘‘every day,’’ but he admitted
    that he did not work on Sundays. This evidence is con-
    sistent with A’s testimony that the defendant sexually
    assaulted her when the defendant’s wife was at church
    and A was left alone with the defendant. The defendant
    did not attempt to offer alibi evidence for a single Sun-
    day of that summer.
    Furthermore, the defendant in the present case failed
    to demonstrate how he would have prepared his
    defense differently had the state charged him in accor-
    dance with A’s statements during her forensic inter-
    view. ‘‘A defendant can gain nothing from [the claim
    that the pleadings are insufficient] without showing that
    he was in fact prejudiced in his defense on the merits
    and that substantial injustice was done to him because
    of the language of the information. . . . To establish
    prejudice, the defendant must show that the informa-
    tion was necessary to his defense, and not merely that
    the preparation of his defense was made more burden-
    some or difficult by the failure to provide the informa-
    tion.’’ (Internal quotation marks omitted.) State v.
    Vlahos, 
    138 Conn. App. 379
    , 396–97, 
    51 A.3d 1173
     (2012),
    cert. denied, 
    308 Conn. 913
    , 
    61 A.3d 1101
     (2013). Under
    the circumstances, the defendant has failed to establish
    that the denial of his motion for a bill of particulars
    prejudiced his defense on the merits.
    II
    The defendant next claims that the trial court improp-
    erly admitted evidence that A tested positive for tricho-
    monas vaginalis. Specifically, the defendant argues that
    the evidence was irrelevant, or, alternatively, that the
    evidence was unfairly prejudicial. We disagree.
    The following additional facts and procedural history
    are relevant to our resolution of this claim. In Novem-
    ber, 2014, A complained to her mother of vaginal itching.
    During Dr. Moles’ examination of A, Dr. Moles admin-
    istered tests for sexually transmitted diseases such
    as gonorrhea, chlamydia, HIV, syphilis, and hepatitis.
    Upon observing irritation, tenderness, and discharge
    during her examination of A’s vagina, Dr. Moles also
    tested A for trichomonas vaginalis. The tests came back
    positive for trichomonas vaginalis. The defendant was
    never tested to determine whether he had trichomonas.
    On April 20, 2016, the defendant filed a motion in
    limine, requesting the court to exclude any testimony
    and evidence regarding A’s medical diagnosis of tricho-
    monas vaginalis. In his motion, the defendant argued
    that evidence of the sexually transmitted disease was
    not relevant and that ‘‘any value that exists is out-
    weighed by the potential prejudice, confusion and litiga-
    tion of events that are unrelated to the information
    as charged.’’
    The court heard arguments regarding the defendant’s
    motion in limine on April 26, 2016, the second day of
    trial. The defendant argued that there was ‘‘no evidence
    . . . to show that [the defendant] was the individual
    who was responsible for A contracting this sexually
    transmitted disease,’’ and that, therefore, ‘‘the link in
    making that relevant is missing . . . .’’ In addition, he
    argued that the evidence was prejudicial.
    The court denied the defendant’s motion in limine.
    The court concluded that evidence of A’s medical diag-
    nosis of trichomonas vaginalis was ‘‘highly probative’’
    and ‘‘very relevant to establish that the child had sexual
    contact . . . or was engaged in sexual penetration with
    another person. And that’s part of the state’s burden
    of proof, to prove that that fact did occur.’’ The court
    further explained that it ‘‘[a]greed that there’s nothing
    about [the defendant] in terms of absolute linkage
    there,’’ but that the jury could make inferences from the
    testimony, because A testified that it was the defendant
    who sexually abused her. The court also indicated that it
    would give a limiting instruction regarding the medical
    diagnosis of A’s trichomonas vaginalis to inform the
    jury that the evidence was not being admitted to prove
    that the defendant gave A the disease, and that it, as
    the finder of fact, could make reasonable inferences
    from the medical finding and from A’s testimony.
    Dr. Moles subsequently testified about A’s diagnosis
    of trichomonas vaginalis. She stated that ‘‘trichomonas
    is a sexually transmitted infection . . . that is transmit-
    ted sexually’’ and that trichomonas vaginalis is most
    commonly transmitted through penile-vaginal penetra-
    tion. She testified that there have been reports about
    trichomonas vaginalis being transmitted when mothers
    give birth to children; however, she explained that even
    if a child is initially infected in such a manner, the
    infection clears within the first year of the child’s life.12
    She further testified that trichomonas vaginalis is
    uncommon in children, ‘‘so uncommon . . . that it is
    listed in the guidelines from the American Academy of
    Pediatrics . . . as a reportable condition. So, meaning,
    if it’s diagnosed in a child, it is recommended . . . that
    the pediatrician then report concerns of sexual abuse
    based on that infection, report those concerns to
    Department of Children [and] Families, to police,
    depending on the jurisdiction.’’
    Immediately following Dr. Moles’ testimony, the
    court gave the following limiting instruction to the jury:
    ‘‘[T]he trichomonas diagnosis . . . is being admitted
    only for the purpose—if you find it credible, only for
    the purpose of your consideration of whether or not
    [A] had sexual contact with another person. It’s not
    being admitted for the purpose of the conclusory deter-
    mination of whether or not it was [the defendant] who
    was responsible for the trichomonas. I’m admitting it
    only for the purpose of your consideration of whether
    or not the child had sexual contact, period. And you
    can draw any reasonable inferences [from] that as you
    would . . . .’’ In addition, in its final charge to the jury,
    the court instructed: ‘‘I said that evidence that [A] was
    diagnosed with a sexually transmitted disease was
    admitted for your consideration as to whether [A] had
    sexual contact with another person. That evidence itself
    was not admitted to establish that it showed the identity
    of the person who infected [A].’’
    We begin by setting forth the standard of review and
    legal principles that guide our analysis of this claim.
    It is well established that ‘‘[t]he trial court has broad
    discretion in ruling on the admissibility . . . of evi-
    dence. . . . The trial court’s ruling on evidentiary mat-
    ters will be overturned only upon a showing of a clear
    abuse of the court’s discretion. . . . We will make
    every reasonable presumption in favor of upholding the
    trial court’s ruling, and only upset it for a manifest
    abuse of discretion. . . . Moreover, evidentiary rulings
    will be overturned on appeal only where there was an
    abuse of discretion and a showing by the defendant of
    substantial prejudice or injustice.’’ (Internal quotation
    marks omitted.) State v. Anwar S., 
    141 Conn. App. 355
    ,
    374–75, 
    61 A.3d 1129
    , cert. denied, 
    308 Conn. 936
    , 
    66 A.3d 499
     (2013).
    This claim is controlled by this court’s decision in
    Anwar S.13 In Anwar S., a child victim of sexual assault
    was diagnosed with chlamydia. Id., 359. The defendant
    claimed that evidence of the victim’s chlamydia diagno-
    sis was irrelevant because no evidence was offered to
    connect him to the transmission of the disease. Id., 374.
    This court held that the evidence was relevant and
    probative as to the victim’s having had sexual contact.
    Id., 375. This court determined that whether the defen-
    dant sexually assaulted the victim was a disputed, mate-
    rial issue of fact. Id. It further explained that expert
    testimony at trial provided that chlamydia is most com-
    monly transmitted through sexual contact, and that the
    victim testified that the defendant had sexual contact
    with her when he assaulted her. Id. Therefore, this court
    concluded that the victim’s diagnosis ‘‘logically tended
    to prove that she had sexual contact with an individual
    . . . [and] evidence that she had the requisite contact
    only with the defendant made it more likely that the
    defendant engaged in the conduct with which he was
    charged.’’ Id. Our Supreme Court declined to review
    this court’s decision.
    Here, A, like the victim in Anwar S., was diagnosed
    with a sexually transmitted disease.14 This evidence was
    relevant and probative as to A’s having had sexual con-
    tact. See id.; see also Conn. Code Evid. § 4-1. ‘‘Relevant
    evidence is evidence that has a logical tendency to aid
    the trier in the determination of an issue.’’ (Internal
    quotation marks omitted.) Raybeck v. Danbury Ortho-
    pedic Associates, P.C., 
    72 Conn. App. 359
    , 378, 
    805 A.2d 130
     (2002). Here, like in Anwar S., whether the
    defendant sexually assaulted A was a disputed, mater-
    ial issue of fact. A was diagnosed with trichomonas vag-
    inalis, which, according to Dr. Moles’ testimony, is
    transmitted most commonly through sexual contact. A
    testified that the defendant had sexual contact with her
    when he assaulted her through penile-vaginal penetra-
    tion. Furthermore, A’s medical records provided that
    she was not sexually active.15 Like in Anwar S., A’s
    diagnosis logically tended to prove that she had sexual
    contact with an individual, and the evidence that she
    had the requisite contact only with the defendant made
    it more likely that the defendant engaged in the conduct
    with which he was charged.
    The defendant alternatively asserts that evidence per-
    taining to A’s trichomonas vaginalis diagnosis was
    unfairly prejudicial, as it had an adverse effect on him
    beyond tending to prove that A had sexual contact. See
    State v. James G., 
    268 Conn. 382
    , 399, 
    844 A.2d 810
    (2004) (‘‘evidence is excluded as unduly prejudicial
    when it tends to have some adverse effect upon a defen-
    dant beyond tending to prove the fact or issue that
    justified its admission into evidence’’ [internal quotation
    marks omitted]). Specifically, the defendant claims that
    the evidence ‘‘unduly aroused the emotions, hostility,
    and sympathy’’ of the jury by compelling it to speculate
    that the defendant infected A with trichomonas vagi-
    nalis. We are not persuaded.
    This court addressed a similar claim in Anwar S. In
    Anwar S., this court concluded that by the time the
    jury heard testimony regarding the victim’s chlamydia
    diagnosis, the victim had already testified specifically
    that she was sexually assaulted by the defendant and,
    therefore, the evidence of chlamydia was not unduly
    prejudicial because it was consistent with other evi-
    dence presented by the state at trial. State v. Anwar
    S., supra, 
    141 Conn. App. 376
    . Similarly, in the present
    case, A testified specifically that the defendant sexually
    assaulted her before the jury heard testimony regarding
    her trichomonas vaginalis diagnosis. See State v. James
    G., supra, 
    268 Conn. 400
     (evidence less likely to unduly
    arouse jurors’ emotions when similar evidence has
    already been presented to jury). Moreover, A’s mother’s
    testimony regarding A’s change in behavior corrobo-
    rated A’s report of the assault. Therefore, evidence per-
    taining to trichomonas vaginalis was consistent with
    other evidence presented by the state at trial, and we
    cannot conclude that its admission was unfairly prejudi-
    cial to the defendant.
    In addition, the court specifically instructed the jury
    not to consider evidence of the trichomonas vaginalis
    diagnosis for the purpose of determining whether it
    was the defendant who was responsible for infecting
    A. Without evidence to the contrary, we presume that
    the jury followed these instructions. See State v. Par-
    rott, 
    262 Conn. 276
    , 294, 
    811 A.2d 705
     (2003) (‘‘[b]arring
    contrary evidence, we must presume that juries follow
    the instructions given them by the trial judge’’ [internal
    quotation marks omitted]). For the foregoing reasons,
    we conclude that the trial court did not abuse its discre-
    tion by admitting evidence that A tested positive for
    trichomonas vaginalis.
    III
    The defendant’s last claim is that the trial court
    improperly admitted evidence of text messages from
    the defendant to A’s mother. Specifically, the defendant
    argues that the court should have precluded this evi-
    dence as untimely because the prosecutor who was in
    charge of the trial knew or should have known of the
    text messages prior to their disclosure at the start of
    trial. We disagree.
    The following additional facts and procedural history
    are relevant to our resolution of this claim. On the
    morning of April 25, 2016, the first day of trial, A’s
    mother presented the prosecutor with screenshots of
    text messages sent December 1, 2, and 5, 2014, from the
    defendant to her. In these text messages, the defendant
    stated that he had $110 for A, $65 for A’s mother, and
    $25 for A’s brother. The defendant also stated that
    ‘‘[s]omeone text me said they can not stop u from calling
    the cop? Let me know.’’ A few days later, the defendant
    stated, ‘‘I’m buying [you a] gift if [you] [accept],’’ and
    ‘‘I’m not upset with you . . . . [H]ad to do what [you]
    did.’’ A’s mother responded with a text message to the
    defendant stating that he had no reason to be upset
    with her. The defendant replied that he understood and
    that ‘‘[either] way all [our] life is messed up.’’
    The prosecutor informed the court and defense coun-
    sel about these text messages on the same morning
    that A’s mother brought the messages to her attention.
    Although the prosecutor planned to call A’s mother
    as its second witness, the court ordered A’s mother’s
    testimony to be delayed until the next day ‘‘in fairness
    . . . so everybody could digest the content’’ of the
    text messages.
    The next day, before A’s mother testified, the defen-
    dant moved to preclude the admission of these text
    messages into evidence. The defendant argued that,
    even if the prosecutor did not actually know about the
    text messages until the day they were disclosed to the
    defendant, she should have known about the text mes-
    sages earlier because text messages, according to coun-
    sel, were mentioned in A’s medical report and gifts were
    mentioned in records from the Department of Children
    and Families. The defendant argued that the late disclo-
    sure by the prosecutor disadvantaged him in preparing
    his defense. He claimed that the text messages should
    have been disclosed at the earliest stages of the case
    and that their late disclosure violated his federal and
    state constitutional rights to due process.
    The court denied the defendant’s motion to preclude
    the evidence. It concluded that the prosecutor was not
    aware of the text messages at an earlier stage and there
    was nothing in the reports cited by the defendant to
    indicate that there were text messages of the defen-
    dant’s offers of gifts. The court determined that the text
    messages were relevant and probative, and that, even
    though the text messages were not discovered by the
    prosecutor nor disclosed to the defendant until the first
    day of trial, the defendant would not need additional
    time to prepare and develop a defense to this evidence.
    A’s mother subsequently testified about the text mes-
    sages. A’s mother stated: ‘‘[H]e’s never offered me
    money . . . it was like he wanted to give us money
    after the incident came out.’’ When the defendant testi-
    fied, he attempted to explain the text messages by stat-
    ing that he wanted to give A’s mother money to buy
    gifts for Christmas.
    We begin by setting forth the standard of review and
    legal principles that guide our analysis of this claim. As
    noted in part II of this opinion, the trial court’s ruling
    on evidentiary matters will be overturned only upon a
    showing of a clear abuse of the court’s discretion. Prac-
    tice Book § 40-11 discusses the disclosure of informa-
    tion and materials discoverable by the defendant as
    of right from the prosecuting authority. Specifically,
    Practice Book § 40-11 (a) (1) requires, in relevant part,
    that the state disclose any ‘‘papers, photographs, or
    documents within the possession, custody or control
    of any governmental agency, which the prosecuting
    authority intends to offer in evidence in chief at trial
    or which are material to the preparation of the defense
    or which were obtained from or purportedly belong to
    the defendant . . . .’’
    We conclude that the trial court did not abuse its
    discretion in admitting evidence of the text messages
    sent from the defendant to A’s mother because the
    prosecutor complied with discovery requirements by
    timely disclosing the evidence shortly after she was
    told about it. The prosecutor informed the court and
    defense counsel of the text messages on the same morn-
    ing that A’s mother brought the messages to her
    attention.
    The defendant argues that the prosecutor’s disclosure
    of the text messages was untimely because the state
    should have known of the text messages prior to the
    first day of trial. He claims that ‘‘the record clearly
    indicates that the state should have been aware of the
    [text] messages’’ because of reports within the state’s
    possession. We disagree. According to counsel at oral
    argument on the defendant’s motion to preclude, during
    A’s appointment with Donahue on December 2, 2014,
    A’s mother informed A’s doctor that the defendant was
    texting her almost daily. Donahue noted this informa-
    tion in her report. The report, however, did not indicate
    the content of the text messages. In addition, according
    to counsel, A’s mother reported to the Department of
    Children and Families that the defendant had been
    offering to buy gifts for A and herself. A’s mother stated
    that this offer was out of character for the defendant
    and that she felt it was the defendant’s way of swaying
    her to stop the police investigation. However, the prose-
    cutor asserted that the report did not state that the
    offers of gifts and money were contained in text mes-
    sages. Consequently, there was no evidence that the
    prosecutor should have known of the text messages
    because, as the trial court concluded, neither report
    contained the information that there was text message
    evidence of the defendant’s offerings of gifts or money.
    Therefore, the prosecutor’s disclosure of the text mes-
    sages authored by the defendant, made on the same
    morning she discovered the evidence, was timely.
    The defendant argues that evidence of the text mes-
    sages should have been precluded as a sanction under
    Practice Book § 40-5.16 Section 40-517 gives ‘‘broad dis-
    cretion to the trial judge to grant an appropriate remedy
    for failure to comply with discovery requirements.’’
    State v. Wilson F., 
    77 Conn. App. 405
    , 417, 
    823 A.2d 406
    , cert. denied, 
    265 Conn. 905
    , 
    831 A.2d 254
     (2003).
    Because the prosecutor timely disclosed evidence of
    the text messages, which the defendant concedes that
    he sent, the prosecutor complied with discovery
    requirements and, therefore, it was unnecessary for the
    trial court to impose any of the sanctions provided by
    Practice Book § 40-5. Therefore, we conclude that the
    court did not abuse its discretion in admitting evidence
    of the text messages sent from the defendant to A’s
    mother relating to the defendant’s offering gifts and
    money to her, A, and A’s brother.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    * 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 identify the victim or others through whom the victim’s identity may be
    ascertained. See General Statutes § 54-86e.
    1
    The defendant was acquitted of one count of sexual assault in the first
    degree, one count of sexual assault in the third degree, and two counts of
    risk of injury to a child. See footnote 7 of this opinion.
    2
    Danielle Williams, a licensed professional counselor, testified at trial as
    to the symptoms experienced by children who have been sexually abused.
    She explained that children sometimes exhibit changes in behavior, including
    aggressive behavior, as well as bedwetting and difficulty sleeping.
    3
    A testified that the defendant used ‘‘[h]is private area and his hands’’ to
    touch her and that his private area ‘‘entered . . . into [hers].’’ She described
    her ‘‘private area’’ as ‘‘[t]he place where [she uses] the bathroom’’ in ‘‘[t]he
    front of [her] body.’’
    4
    Immediately before A gave her mother this note, A’s mother ‘‘had the
    conversation about perverts. And [she] explained that perverts come in
    shapes of your family members, friends, and that [A] needs to tell [her] if
    anything like that has ever happened to [A].’’ In the note, A wrote that the
    defendant ‘‘has been doing it to [her].’’
    5
    At trial, Donahue explained that, even though she ‘‘did not find anything
    out of the ordinary’’ during the examination, the examination did not confirm
    or refute that anything had happened as far as the report of touching and pen-
    etration.
    6
    Despite Dr. Moles’ report that A had ‘‘normal appearing genital anatomy,’’
    Dr. Moles testified at trial that, with ‘‘suspected victims of sexual abuse
    [who] have had penetration into the vagina, in the overwhelming majority
    of cases, 95 percent of the time or more, there is a normal examination
    . . . there’s no medical evidence . . . of loss of tissue or injury.’’
    7
    The defendant was also charged with additional counts of sexual assault
    in the first degree, sexual assault in the third degree, and two counts of
    risk of injury to a child. The facts underlying the sexual assault counts were
    alleged to have occurred during 2010 to 2013 while the defendant lived at
    Jefferson Street in Bridgeport, and the facts underlying the risk of injury
    counts were alleged to have occurred in 2010 when the defendant lived at
    Holly Street in Bridgeport, before he moved to Jefferson Street. The jury
    acquitted the defendant of all of the offenses alleged to have occurred at
    Holly Street. The jury also acquitted the defendant of both sexual assault
    offenses alleged to have occurred at Jefferson Street.
    8
    A video recording of A’s forensic interview was marked for identification
    the state’s exhibit 7, but was not admitted into evidence.
    9
    The defendant argues that the state should have narrowed the time
    periods in the information using these statements. Specifically, the defendant
    claims that the state could have narrowed the time frame for the conduct
    when A ‘‘just turned six,’’ to reflect his granddaughter’s actual date of birth
    and that A’s report of the incidents ‘‘during her summer break between
    third and fourth grade’’ could have been narrowed to a period of three
    months rather than being contained within a two year time frame. The
    defendant also claims that, given A’s report of the last incident being on
    the second Sunday in November, 2014, the state could have narrowed the
    time frame to ‘‘November of 2014’’ rather than ‘‘on or about 2013 through
    2014.’’ The defendant claims that A’s recollection of the incident that
    occurred ‘‘at the end of the [previous] school year’’ should have led to a
    more specific date through follow-up questions by the state.
    Because we find that the defendant’s failure to demonstrate prejudice is
    dispositive of this claim, we decline to determine whether the state should
    have included more specific time frames in its charges based on these
    statements or whether the trial court abused its discretion in denying the
    defendant’s motion for a bill of particulars. See State v. Madagoski, 
    59 Conn. App. 394
    , 404, 
    757 A.2d 47
     (2000), cert. denied, 
    255 Conn. 924
    , 
    767 A.2d 100
     (2001).
    10
    The state originally charged these offenses as having occurred at Hol-
    lister Avenue, rather than Holly Street. A mistakenly referred to the defen-
    dant’s address as being at Hollister Avenue during her forensic interview.
    The state subsequently corrected the address to Holly Street in its operative
    substitute information.
    11
    At trial, A testified that the defendant sexually abused her when the
    defendant’s wife was at church on Sundays.
    12
    A was five years old at the time the years of sexual abuse by her
    grandfather started.
    13
    The defendant argues that this court should overrule State v. Anwar
    S., supra, 
    141 Conn. App. 355
    . It is this court’s policy that we cannot overrule
    a decision made by another panel of this court absent en banc consideration.
    In re Zoey H., 
    183 Conn. App. 327
    , 340 n.5, 
    192 A.3d 522
    , cert. denied, 
    330 Conn. 906
    , 
    192 A.3d 425
     (2018). Although the defendant filed a motion for
    en banc consideration of this appeal, it was denied on April 18, 2018. There-
    fore, we decline the defendant’s request to revisit our precedent.
    In addition, we note that the defendant failed to alert the court to the
    subsequent procedural history of Anwar S. His brief omitted reference to
    our Supreme Court’s denial of certification. When asked at oral argument,
    the defendant stated that the Manual of Style for the Connecticut Courts is
    silent on the issue, and, therefore, he follows the Bluebook system of citation.
    He then stated that the Bluebook system of citation permits a litigant to
    omit denials of certiorari for decisions that are over two years old. The
    defendant is incorrect. First, our Manual of Style for the Connecticut Courts
    requires that the subsequent history of an opinion be provided in a case’s
    initial citation. In addition, Bluebook Rule 10.7 permits authors to ‘‘omit
    denials of certiorari or denials of similar discretionary appeals, unless the
    decision is less than two years old or the denial is particularly relevant.’’
    (Emphasis added.) In a claim requesting the court to revisit its precedent, a
    prior denial of certification by our Supreme Court is indisputably particularly
    relevant and, therefore, should have been included in the citation.
    14
    In both Anwar S. and the present case, expert witnesses testified that
    the diseases were most commonly transmitted through sexual contact. The
    defendant attempts to distinguish his case from Anwar S. He argues that,
    ‘‘[u]nlike chlamydia, which is almost exclusively passed through sexual
    contact, [trichomonas vaginalis] has been shown to pass through nonsexual
    means, although uncommonly, rendering its relevance much lower.’’ How-
    ever, in Anwar S., this court noted that chlamydia can be transmitted through
    nonsexual means as well. Yet, this court still determined that evidence of
    the diagnosis was relevant. This court acknowledged that the expert witness
    testified that ‘‘chlamydia can be contracted in utero as well as through
    sexual contact, but that [the victim’s] infection was unlikely to have resulted
    from the birth process, as those infections are usually discovered within
    the first three years of the child’s life and [the victim] was twelve years old
    at the time of her examination.’’ State v. Anwar S., supra, 
    141 Conn. App. 359
     n.3. Similarly, in the present case, Dr. Moles addressed the possibility
    of transmitting trichomonas vaginalis through nonsexual means. She testi-
    fied that there have been reports about trichomonas vaginalis being transmit-
    ted when mothers give birth to their children, but that even if a child is
    initially infected, the infection clears within the first year of the child’s life.
    Therefore, we fail to discern any meaningful factual distinction between
    these cases.
    15
    A reported that ‘‘no one else had ever touched her like this.’’
    16
    The defendant, in support of his argument that the court should have
    precluded evidence of the text messages under Practice Book § 40-5, cites
    several alibi witness cases. See State v. Tutson, 
    278 Conn. 715
    , 722, 
    899 A.2d 598
     (2006); State v. Sanchez, 
    200 Conn. 721
    , 
    513 A.2d 653
     (1986); State
    v. Boucino, 
    199 Conn. 207
    , 
    506 A.2d 125
     (1986); State v. Salters, 
    89 Conn. App. 221
    , 
    872 A.2d 933
    , cert. denied, 
    274 Conn. 914
    , 
    879 A.2d 893
     (2005).
    For a number of reasons, these cases are unpersuasive. Most significantly,
    an undisclosed alibi witness raises more concern regarding prejudice to the
    opposing party, resulting from the late disclosure, than the text message
    evidence in the present case. Late disclosure of an alibi witness prejudices
    the opposing party—namely, the state—by preventing it from interviewing
    and investigating the witness, his or her testimony, and any other potential
    witnesses who might have knowledge to corroborate the alibi witness’ testi-
    mony. See State v. Tutson, supra, 
    278 Conn. 745
    .
    Concerns of such prejudice do not exist in the present case. The defendant
    conceded that he sent the text messages to A’s mother. Therefore, he knew
    that his text messages existed. In addition, unlike with evidence of an alibi
    witness, there is no apparent reason that the defendant would have needed
    to investigate or interview anyone else regarding the text messages that he
    personally had sent. Any explanation about the purpose or meaning of the
    text messages necessarily would have come from the defendant, the author
    and sender of the text messages. The defendant had the opportunity to
    testify as to his reason for sending the text messages. When the defendant
    testified, he attempted to explain the early December text messages by
    stating that he wanted to give A’s mother money to buy gifts for Christmas.
    Moreover, the court delayed A’s mother’s testimony until the next day ‘‘in
    fairness . . . so everybody could digest the content’’ of the text messages.
    This delay prevented prejudice to the defendant because the additional time
    enabled the defendant to prepare to cross-examine A’s mother regarding
    the text messages. Thus, the concerns underlying the court’s exclusion of
    the alibi witnesses in the cases cited by the defendant, under Practice Book
    § 40-5, were not present in this case.
    17
    Practice Book § 40-5 provides in relevant part: ‘‘If a party fails to comply
    with disclosure as required under these rules, the opposing party may move
    the judicial authority for an appropriate order. The judicial authority hearing
    such a motion may enter such orders and time limitations as it deems
    appropriate, including, without limitation, one or more of the following . . .
    (2) Granting the moving party additional time or a continuance . . . [or]
    (4) Prohibiting the noncomplying party from introducing specified evidence
    . . . .’’ In determining what sanction is appropriate under Practice Book
    § 40-5, a trial court should ‘‘consider the reason why disclosure was not
    made, the extent of prejudice, if any, to the opposing party, the feasibility
    of rectifying that prejudice by a continuance, and any other relevant circum-
    stances.’’ (Internal quotation marks omitted.) State v. Cooke, 
    134 Conn. App. 573
    , 578–79, 
    39 A.3d 1178
    , cert. denied, 
    305 Conn. 903
    , 
    43 A.3d 662
     (2012).
    

Document Info

Docket Number: AC40847

Citation Numbers: 201 A.3d 1108, 187 Conn. App. 106

Filed Date: 1/15/2019

Precedential Status: Precedential

Modified Date: 1/12/2023