Date: 04-22-2016

Case Style: STATE OF CONNECTICUT v. LONNIE DUNBAR

Case Number: AC 37367

Judge: Bethany J. Alvord

Court: Connecticut Appellate Court

Plaintiff's Attorney: Emily D. Trudeau, John C. Smriga, Cornelius P. Kelly

Defendant's Attorney: Jonathan I. Edelstein, David E. Kelly

Description: The defendant, John Marshall Spence, appeals from the trial court’s judgment of conviction, renderedafterajurytrial,ofpossessionofchildpornographyinthefirstdegreeinviolationofGeneralStatutes § 53a-196d(a)(1).1 Onappeal,thedefendantclaimsthat the trial court committed error by (1) ‘‘denying the defendant’s motion to suppress his statements’’ made to the police prior to his formal arrest; (2) ‘‘giving a constructive possession instruction that treated a computer as the equivalent of a premises’’; and (3) ‘‘permitting the state to offer rebuttal evidence on matters that it knew were at issue during the case-in-chief.’’ We affirm the judgment of the trial court. The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. The state police began investigating the defendant’s activities when they received a tip that a person with a Connecticut Internet protocol (IP) address was downloading child pornography over peer-to-peer file sharing networks.2 Using a computer program tailored forlawenforcement,thestatepoliceaccessedtheidentified IP address and downloaded images of child pornography.Thestatepoliceappliedforandweregranted anexparteordertorequiretheInternetserviceprovider to reveal the name and street address associated with theidentifiedIPaddress.Thestatepolicethenobtained a search warrant for the defendant’s home. On June 13, 2012, state troopers and local police executed a search and seizure warrant at the defendant’shomeat34MayStreetinFairfield.Policeentered the home shortly after 6 a.m. and found the defendant, his wife, three children, and mother-in-law in the single family residence. At that time, the lead investigator, state police Detective David Aresco, asked the defendant if he could explain why the state police were in hishome.Inresponse,thedefendantaskedif‘‘hecould speak with Detective Aresco in private.’’ Once outside, the defendant received a Miranda warning and then provided an oral and written statement acknowledging that he had downloaded more than 150 images and videos of child pornography and that he had exclusive control of the computer where the files were stored. Before the defendant’s trial began, he moved to suppress the statements he made to the state police on the day his home was searched. On September 6, 2013, the trial court conducted a hearing on the motion. Ultimately, the trial court denied the motion and the defendant was convicted by a jury of possession of child pornography in the first degree. This appeal followed. Additional facts will be set forth as necessary. I The defendant claims on appeal that the trial court improperly denied his motion to suppress his state
ments to the police on the day the search warrant was executedathishome.Specifically,thedefendantargues that when the police entered his home and gathered togethertheresidentsinoneroom,basedonthecircumstances, a reasonable person in his situation would believe he was in custody. Accordingly, he claims that the police should have provided a Miranda warning beforetheyaskedanyquestions.Priortotrial,thedefendantsoughttosuppresshisinitialresponsetoDetective Aresco asking if he could speak to the detective ‘‘in private.’’Healsosoughttosuppresstheoralandwritten statements he made after receiving Miranda warnings. The defendant argued that the lack of a Miranda warning prior to his initial request to speak with the police inprivatetaintedthestatementsthatfollowed.Weconclude that the trial court did not err by denying the motion to suppress and allowing the statements to be admitted as evidence. The following additional facts that the trial court reasonably could have found are relevant to the defendant’s claim. The search warrant was executed at the defendant’s home at approximately 6:10 a.m. on June 13, 2012. Eight to ten state troopers and police officers entered the home. The officers were wearing standard issuesidearms,bulletproofvests,andclothesthatidentified that they were law enforcement. The defendant was sleeping on the second floor when the police arrived. After the police conducted a protective sweep of the rooms in the home, they gathered the entire family into the kitchen or dining room area. Without issuing a Miranda warning, Aresco informed the residents that he was investigating a computer crime and then asked the defendant if he could explain why the police were in his home. The defendant responded by asking if they could speak in private. The defendant therefore was brought outside to an unmarked police car. He was advised of his Miranda rights and signed a waiver notice to confirm that he was aware of his rights. The defendant was questioned and Aresco recorded notes and prepared a written statement. The three page written statement was read back to the defendant. After rereading it and making corrections, the defendant signed the statement and initialed each page.Thequestioninglastedforapproximatelyoneand one-half hours and the defendant was allowed to take a cigarette break. The court held a hearing on the motion to suppress that included testimony from Aresco and another state trooper who was involved with the execution of the search warrant at the defendant’s home. The court denied the defendant’s motion after concludingthatthedefendantwas notincustodywhen he initially responded to Aresco’s inquiry. ‘‘[O]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the
evidence and pleadings in the whole record . . . . [When] the legal conclusions of the court are challenged,wemustdeterminewhethertheyarelegallyand logically correct and whether they find support in the facts set out in the memorandum of decision . . . .’’ (Internal quotation marks omitted.) State v. Collin, 154 Conn. App. 102, 121, 105 A.3d 309 (2014), cert. denied, 315 Conn. 924, 108 A.3d 480 (2015). We first consider whether the court properly found that the defendant was not in custody at the time the statements in issue were made. ‘‘In order to determine the[factual]issueofcustody,however,wewillconduct a scrupulous examination of the record . . . in order to ascertain whether, in light of the totality of the circumstances, the trial court’s finding is supported by substantial evidence. . . . The ultimate inquiry as to whether, in light of these factual circumstances, a reasonable person in the defendant’s position would believe that he or she was in police custody of the degree associated with a formal arrest . . . calls for application of the controlling legal standard to the historical facts [and] . . . therefore, presents a . . . question of law . . . over which our review is de novo. . . . In other words, we are bound to accept the factual findingsofthetrialcourtunlesstheyareclearlyerroneous, but we exercise plenary review over the ultimate issue of custody.’’ (Citation omitted; internal quotation marks omitted.) State v. Mangual, 311 Conn. 182, 197, 85 A.3d 627 (2014). ‘‘[T]he Fifth Amendment privilege [against selfincrimination]isavailableoutsideofcriminalcourtproceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine theindividual’swilltoresistandtocompelhimtospeak where he would not otherwise do so freely.’’ Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). ‘‘Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. . . . [A]lthough the circumstances of each case must certainly influence a determination of whether a suspect is in custody for purposesofreceivingMiranda protection,theultimate inquiry is simply whether there is a formal arrest or restraintonfreedomofmovementofthedegreeassociated with a formal arrest.’’ (Internal quotation marks omitted.) State v. Jackson, 304 Conn. 383, 416, 40 A.3d 290 (2012). ‘‘As used in . . . Miranda [and its progeny], custody
is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. . . . In determining whether a person is in custody in this sense . . . the United States Supreme Court has adopted an objective, reasonable person test . . . the initial step [of which] is to ascertain whether, in light of the objective circumstances of the interrogation . . . a reasonable person [would] have felt [that] he or she was not at liberty to terminate the interrogation and [to] leave.’’ (Citations omitted; internal quotation marks omitted.) State v. Mangual, supra, 311 Conn. 193. ‘‘[N]otallrestrictionsonasuspect’sfreedomofaction rise to the level of custody for Miranda purposes; in other words, the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody. . . . Rather, the ultimate inquiry is whetherareasonablepersoninthedefendant’sposition would believe that there was a restraint on [her] freedom of movement of the degree associated with a formal arrest. . . . Any lesser restriction on a person’s freedomofactionisnot significantenoughtoimplicate the core fifth amendment concerns that Miranda sought to address.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 194–95. After reviewing state and federal cases concerning custody, our Supreme Court compiled a nonexclusive ‘‘listoffactorstobeconsideredindeterminingwhether a suspect was in custody for purposes of Miranda [in circumstances involving the interrogation of a suspect during a police search of his residence]: (1) the nature, extent and duration of the questioning; (2) whether the suspect was handcuffed or otherwise physically restrained; (3) whether officers explained that the suspect was free to leave or not under arrest; (4) who initiatedtheencounter;(5)thelocationoftheinterview; (6) the length of the detention; (7) the number of officers in the immediate vicinity of the questioning; (8) whether the officers were armed; (9) whether the officersdisplayedtheirweaponsorusedforceofanyother kind before or during questioning; and (10) the degree to which the suspect was isolated from friends, family and the public.’’ Id., 197. A AnapplicationofthefactorsenumeratedinMangual to the facts of this case informs our conclusion that the trial court properly concluded that a reasonable person in the defendant’s position would not have believed that he was in police custody of the degree associated with a formal arrest. On the basis of the facts that the trial court reasonably could have found, the police presence did not overwhelm the defendant to the point that a reasonable person would believe that he was in custody.
Any questioning that occurred in the defendant’s home was informal in nature and short in duration. Arescoadvancedageneralquestionthatintroducedhis presence in the home. The defendant did not answer the question. Instead, he effectively put off any discussion by requesting to speak with the investigators in private. While inside the home, the defendant was not handcuffedorrestrained.Thesurroundingswerefamiliar to the defendant. He was in an open area of the home, and he was surrounded by his family including other adults. While there were as many as ten police officers in the home assisting with the execution of the search warrant, they were not brandishing their weapons. Consideringthetotalityofthecircumstances,thetrial court properly determined that the defendant was not in custody and therefore a Miranda warning was not required. We do note that Aresco did initiate the questioning and the defendant was not informed by police that he was free to leave. These two Mangual factors weigh in favor of a custodial environment, however, a consideration of the remaining factors applied to this case compels the conclusion that a reasonable person in the defendant’s position would not have believed that he was in police custody of the degree associated with formal arrest. The circumstances in this case did not create the police dominated atmosphere that existed in Mangual. In that case our Supreme Court determined that when police officers conducted a drug raid by brandishing handguns and rifles in a small apartment, they created a police dominatedatmosphere that would causea reasonable person to believe that he was in police custody even though there had not been a formal arrest.3 State v.Mangual,supra,311Conn.199–202.Here,theofficers inthedefendant’shomewerenotbrandishingweapons. A similar number of law enforcement officers were presenthereasinMangual,however,thatcaseinvolved a smallapartment whereasthis was aresidential home. See id., 201. Finally, the questioning in Mangual was more extensive; there the defendant and her daughters wereconfinedtoacouchandtherewerenootheradults present.Seeid.,186–87,201–202.Thepolicedominated atmosphere described in Mangual was not present in thiscase.Therefore,noMirandawarningwasrequired. B The defendant also claims that the trial court should havesuppressedthestatementshemadetopoliceafter hereceivedandacknowledgedaMirandawarning.The defendant argues that the Mirandized interrogation was tainted by the alleged unconstitutional questioning thatoccurredinhishomebecauseitwasacontinuation ofthesameevent.Becausewealreadyhavedetermined that during the interaction in the home a reasonable
person in the defendant’s position would not have believed that he was in police custody of the degree associatedwithformalarrest,thedefendant’sargument for suppressing the subsequent Mirandized statement fails. The record shows that the defendant received a Miranda warning before he gave his full statement to Aresco and another trooper in their police car. The defendant has not proffered any other evidence to suggest that the defendant’s waiver of his right to remain silent was involuntary. The trial court’s denial of the defendant’smotiontosuppresswaslegallyandlogically correctandsupportedbythefactssetoutinthememorandum of decision. We conclude that the trial court properly denied the motion to suppress the defendant’s statements. II The defendant also claims on appeal that the trial court erroneously instructed the jury on constructive possession. The trial court instructed the jury that it could infer that the defendant possessed the images of child pornography if it found that the defendant had control of the computer that contained the images. The defendant argues that the trial court was required to instructthejurythatitcouldinferpossessionofpornography only if it found that the defendant had control over the computer and the premises within which it wasfound.Wedisagree.Thetrialcourtwasnotrequired to include an instructionregarding control of the premises. Moreover, it was not reasonably possible that the jury was misled by the court’s instruction. The following additional facts are relevant to the defendant’sclaim.Duringthecourse ofthetrial,Detective Aresco testified that one computer was removed from the defendant’s home as a result of the execution of the search warrant on June 13, 2012. The computer was found in the defendant’s bedroom, and he told policethathekeptitunderhisbed.Thedefendantlived in the home with his wife, three children, and his wife’s parents.Arescotestifiedthatothercomputersalsowere foundinthehomeandexaminedforchildpornography, butonlythedefendant’scomputerwasfoundtocontain the illicit images. In his statement to the state police, the defendant stated that his computer was password protected and ‘‘I am the only person that has that computer—that uses that computer.’’ Priortotheinstructionbeingreadtothejury,defense counsel objected to the language of the instruction becauseitdidnotrequirethejurytofindthatthedefendant also had exclusive control of the home where the computer was located: ‘‘It should be [control over the] premisesandcomputerbecauseofthenatureofacomputer you can be in exclusivepossession of it, yet leave it in a common area, and if that common area is not exclusively yours, then someone else has access [to] it.’’ The trial court overruled the objection.
At the close of the trial, the court instructed the jury regarding constructive possession: ‘‘The state has submittedevidenceinordertoshowthatthedefendant had control over the computer where the video files were found. Control of the computer gives rise to the inference of unlawful possession. And the mere access by others is insufficient to defeat this inference. If it is proven that the defendant is the exclusive owner of the computer where the video files were found, then you may infer that he controlled the computer. However, whenitisshownthatownershiporuseofthecomputer isnotexclusive,youmaynolongermakethisinference. Theabilitytocontrolthecomputermustbeestablished by independent proof.’’ The court also instructed the jury that in order to convict the defendant, they were required to find beyond a reasonable doubt that he ‘‘knowingly possessed the child pornography.’’ We review instructional impropriety to determine ‘‘whether it is reasonably possible that the jury was misled. . . . In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . The charge must be considered from the standpoint of its effect on the jury in guiding [it] to a proper verdict. . . . ‘‘Our review of the defendant’s claim of instructional errorrequiresthatweexaminethecourt’sentirecharge to determine whether it was reasonably possible that the jury could have been misled by the omission of the requested instruction. While a request to charge that is relevant to the issues in a case and that accurately statestheapplicablelawmustbehonored,a[trial]court need not tailor its charge to the precise letter of such a request. . . . As long as [the instructions] are correct in law, adaptedto the issues and sufficientfor the guidance of the jury . . . we will not view the instructions as improper.’’ (Citation omitted; internal quotation marks omitted.) State v. Conyers, 161 Conn. App. 467, 472–73, 127 A.3d 1077 (2015). To be convicted of possession of child pornography inthe firstdegree,thejury mustfindthat thedefendant knowingly possessed the contraband. General Statutes § 53a-196d (a) (1). ‘‘Possess, as defined in § 53a-3 (2), meanstohavephysicalpossessionorotherwisetoexercise dominion or control over tangible property. . . . Our jurisprudence elucidating this definition teaches that such possession may be actual or constructive.
. . . Nevertheless, [b]oth actual and constructive possession require a person to exercise dominion and control over the [contraband] and to have knowledge of its presence and character. . . . Actual possession requires the defendant to have had direct physical contact with the [contraband]. . . . Typically, the state will proceed under a theory of constructive possession when the [contraband is] not found on the defendant’s person at the time of arrest, but the accused still exercises dominion and control. . . . In this regard, [t]he essence of exercising control is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental intent. In our criminal statutes involving possession, this control must be exercised intentionally and with knowledge of the character of the controlled object.’’ (Citations omitted; internal quotation marks omitted.) State v. Bowens, 118 Conn. App. 112, 120–21, 982 A.2d 1089 (2009), cert. denied, 295 Conn. 902, 988 A.2d 878 (2010). The court’s instruction included an explanation of each of the elements the jury had to find present in order to convict the defendant of the alleged crime.4 Findingcontrolofthehomeinthiscaseisnotarequirement to infer possession of the contraband when the contrabandiscontainedwithinanotherobject,herethe computer, that itself could be controlled and secured throughtheuseofapassword.‘‘Tomitigatethepossibility that innocent persons might be prosecuted for . . . possessory offenses . . . it is essential that the state’s evidence include more than just a temporal and spatial nexus between the defendant and the contraband. . . . While mere presence is not enough to support an inference of dominion or control, where there are other piecesofevidencetyingthe defendanttodominionand control, the [finder of fact is] entitled to consider the fact of [the defendant’s] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime.’’ (Internal quotation marks omitted.) State v. Smith, 94 Conn. App. 188, 193–94, 891 A.2d 974, cert. denied, 278 Conn. 906, 897 A.2d 100 (2006). It was not necessary for the jury to findthatthedefendantcontrolledthepremisesinorder to infer that he possessed the child pornography. The court’s failure to include the language regarding ‘‘control of the premises’’ could not have reasonably misled the jury. The defendant argues that the instruction the trial court delivered to the jury improperly modified this state’s model instruction by substituting ‘‘computer’’ for ‘‘premises.’’ Of course, varying the wording of the model instruction does not mean that the instruction provided was an incorrect statement of the law. Regarding possession, our criminal model jury instructions provide in relevant part: ‘‘A complete instruction on possession may require explanations of constructive possession and nonexclusive possession
if relevant to the case. Tailor this instruction according to the specific allegations of possession.’’ (Emphasis added.) Connecticut Criminal Jury Instructions (4th Ed. 2008, Revised November 17, 2015) § 2.111, available at http://jud.ct.gov/ji/Criminal/part2/2.111.htm (last visited April 14, 2016). Thecourt’sinstructionwas properbecauseareasonable jury could make a rational conclusion that if the defendant had control of the computer, then he had possession of its contents. ‘‘[I]t is a function of the jury todrawwhateverinferencesfrom theevidenceorfacts established by the evidence it deems to be reasonable and logical. . . . Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . However, [t]he line betweenpermissibleinferenceandimpermissiblespeculation is not always easy to discern. When we infer, wederiveaconclusionfrom provenfactsbecausesuch considerationasexperience,orhistory,orsciencehave demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficientlycompelling,theinferenceisreasonable.But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.’’ (Internal quotation marks omitted.) State v. Billie, 123 Conn. App. 690, 696, 2 A.3d 1034 (2010). The substance of the charge allowed the jury to infer that the defendant had possessed child pornography if it found that the defendant had exclusive control of the computer. On the basis of the evidence presented, the jury reasonably could have concluded that the defendant was the only person with control and access to the password protected computer that contained child pornography. Therefore, this instruction was both reasonable and logical. The constantly changing nature of technology and crime require that judges have the flexibility to adapt model jury instructions to the facts of a case. Read as a whole, the trial court’s instruction adequately explained to the jury each of the elements required before a person may be convicted of possession of child pornography in the first degree. It was not reasonably possible that the jury was misled by the instructionregarding possession.The defendant,therefore, was not deprived of a fair trial on the basis of improper jury instructions. III Finally, the defendant claims that the trial court
abused its discretion when it allowed the state to present rebuttal evidence concerning the clock settings on the defendant’s computer. Although the state had the opportunity to present this evidence during its case-inchief, the evidence in question became relevant only when the defendant opened the door by presenting an alibi defense that he was working when the pornographic images were downloaded. The trial court did not abuse itsdiscretion by allowing thestate to present its rebuttal evidence. The following additional facts are relevant to the defendant’sclaim.Duringthepresentationofthestate’s case-in-chief, defense counsel cross-examined Detective Aresco about the dates and times that the pornographic images were downloaded to the defendant’s computer. Defense counsel provided Aresco with a copy of the state police computer analysis report that had been generated following an examination of the defendant’s computer. Using the report to refresh his memory, Aresco read the dates and times captured in the report for when specific files were downloaded.5 Onredirectexamination,Arescotestifiedthatbasedon his training, the report’s recorded download time was not reliable evidence.6 On recross-examination, Aresco testified that the file download times captured in the report may have been off by at least two hours from the time when the files were actually downloaded by the defendant because Aresco observed that the clock in the computer was set to the Pacific time zone.7 The next day, after the state rested and prior to the defense presenting any witnesses, the state informed the court that following his testimony, Aresco had further reviewed file download times and found that his testimonyregardingatwohourdifferenceintimewasincorrect. Aresco was now prepared to testify that when he examined the computer he observed a nine hour difference between the clock in the defendant’s computer and the ‘‘actual time.’’8 The state informed the court and defense counsel that Aresco would be presented as a rebuttal witness. The defendant objected to any rebuttal testimony regarding the time to which the clock in the computer was set because he considered it to be new forensic evidence that was available to the state before it rested its case. The trial court deferred making a ruling on the objection so it could consider the defendant’s argument. The defendant then called as his first witness a manager from the bus company where he was employed. The manager testified to the dates and times when the defendant drove his bus route. The defendant sought to establish that he was driving a bus at the time that the child pornography images were downloaded to his computer. This theory was predicated on Aresco’s earlier testimony regarding when each illicit image was downloaded to the defendant’s computer.
After the defendant rested his case, the trial court found that the defendant would not be prejudiced by rebuttal testimony from Aresco because the defendant had been given notice of the state’s claim that the time recorded on the computer was inaccurate.9 Aresco returned to the witness stand and testified that he had been mistaken in his prior testimony and that he had observed a nine hour difference between the time on the clock in the defendant’s computer and the ‘‘actual time.’’10 The defendant cross-examined Aresco about why his testimony changed and the difference in time. ‘‘The admission of rebuttal evidence ordinarily is withinthe sounddiscretionof thetrialcourt. Inconsidering whether a trial court has abused its discretion, appellatecourtsviewsuchatrialcourtrulingbymaking every reasonable presumption in favor of the decision of the trial court.’’ (Internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 57, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007). ‘‘[R]ebuttal evidence is that which refutes the evidence presented by the defense. . . . When a defendant offers evidence in his defense, it is appropriate for the state to offer evidence to refute it, if possible.’’ (Citation omitted; internal quotation marks omitted.) State v. Cavell, 235 Conn. 711, 727, 670 A.2d 261 (1996). ‘‘Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. . . . The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice. . . . The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit itonly to the extentnecessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. . . . Thus, in making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal.’’ (Internal quotation marks omitted.) State v. Brown, 309 Conn. 469, 479, 72 A.3d 48 (2013). On the basis of our review,we conclude that the trial court did not abuse its discretion by permitting the state to recall the pertinent witness to clarify an earlier representationastowhenchildpornographywasdownloadedtothedefendant’scomputer.Thetestimonywas proper rebuttal evidence. The defendant was on notice of the timing issue and was able to cross-examine the witnessonrebuttal.SeeStatev.Cavell,supra,235Conn. 728(stateforensicanalysisthatwasnotrelevantduring case-in-chief was allowed as rebuttal evidence). The state was not required to prove the timing of when
the child pornography was downloaded, only that the defendant was in possession of it. It was the defense that made relevant the computer recorded download times. It is true that the state could have determined the exact discrepancy between the clock in the computer andtheactualtimepriortothepresentationofitscasein-chief, but the topic became relevant only when the defendant raised the issue during cross-examination of Aresco. In this case, the defendant opened the door to the issue of download times in order to lay the foundationforthelatertestimonyofthedefendant’semployer, who would assert that the defendant was working at the time when the images allegedly were downloaded. The defendant never filed a notice of an alibi defense thatwouldhaveinformedthestateofthistheory.Therefore, prior to the cross-examination of Aresco, it was reasonable for the state to believe that the timing of the image downloads was not relevant to the trial and not a topic that required the presentation of evidence. Following the defendant’s cross-examination of Aresco, the state took immediate steps to determine the actual temporal discrepancy and informed the trial court andthe defendant thatit would seekto introduce rebuttal evidence. Prior to presenting his defense, the defendant was aware that the state was prepared to offer rebuttal evidence regarding the computer time.

Outcome: The defendant did not seek a continuance to afford himself time to address the state’s additional evidence. The trial court was within its discretion to allow the state to refute the testimony presented by the defendant. The judgment is affirmed.

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