Evidence of Other Crimes, Wrongs

or Acts Generally Inadmissible (a) General rule. Evidence of other crimes, wrongs or acts of a person is inadmissible to prove 10 the bad character, propensity, or criminal tenden- cies of that person except as provided in subsec- tion (b). (b) When evidence of other sexual miscon- duct is admissible to prove propensity. Evi- dence of other sexual misconduct is admissible in a criminal case to establish that the defendant had a tendency or a propensity to engage in aber- rant and compulsive sexual misconduct if: (1) the case involves aberrant and compulsive sexual misconduct; (2) the trial court finds that the evi- dence is relevant to a charged offense in that the other sexual misconduct is not too remote in time, was allegedly committed upon a person similar to the alleged victim, and was otherwise similar in nature and circumstances to the aberrant and compulsive sexual misconduct at issue in the case; and (3) the trial court finds that the probative value of the evidence outweighs its prejudicial effect. (c) When evidence of other crimes, wrongs or acts is admissible. Evidence of other crimes, wrongs or acts of a person is admissible for pur- poses other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate cru- cial prosecution testimony. (d) Specific instances of conduct when char- acter in issue. In cases in which character or a trait of character of a person in relation to a charge, claim or defense is in issue, proof shall be made by evidence of specific instances of the person’s conduct. (Amended June 20, 2011, to take effect Jan. 1, 2012.) COMMENTARY (a) Evidence of other crimes, wrongs or acts gener- ally inadmissible. Subsection (a) is consistent with Connecticut common law. E.g., State v. Santiago, 224 Conn. 325, 338, 618 A.2d 32 (1992); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). Other crimes, wrongs or acts evidence may be admis- sible for other purposes as specified in subsections (b) and (c) and Section 4-4 (a) (4). Cf. State v. Hedge, 297 Conn. 621, 650–52, 1 A.3d 1051 (2010); see Section 4-4 (a) (4), commentary. Although the issue typically arises in the context of a criminal proceeding; see State v. McCarthy, 179 Conn. 1, 22, 425 A.2d 924 (1979); subsection (a)’s exclusion applies in both criminal and civil cases. See, e.g., Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 191–92, 510 A.2d 972 (1986). (b) When evidence of other sexual misconduct is admis- sible to prove propensity. Subsection (a) specifically prohibits the use of other crimes, wrongs or acts evidence to prove a person’s propensity to engage in the misconduct with which the defendant has been charged. However, the court may admit evidence of a defend- ant’s uncharged sexual misconduct to prove that the defendant had a tendency or a propensity to engage in aberrant and Connecticut Code of Evidence compulsive sexual behavior. State v. Snelgrove, 288 Conn. 742, 759–61, 954 A.2d 165 (2008); State v. DeJesus, 288 Conn. 418, 470–74, 953 A.2d 45 (2008); see State v. Johnson, 289 Conn. 437, 452–55, 958 A.2d 713 (2008), overruled in part on other grounds by State v. Payne, 303 Conn. 538, 34 A.3d 370 (2012); see also State v. Smith, 313 Conn. 325, 337–38, 96 A.3d 1238 (2014) (evidence of uncharged sexual misconduct that involved choking victim while she resisted sexual attack held sufficiently similar to be admissible); State v. George A., 308 Conn. 274, 298–300, 63 A.3d 918 (2013) (evidence of uncharged sexual misconduct committed by defendant against minor victim’s mother held admissible); but see State v. Gupta, 297 Conn. 211, 224–34, 998 A.2d 1085 (2010) (evidence that defendant physician had fondled other patients too dissimilar to be admissible). Although DeJesus involved a sexual assault charge, later, the Supreme Court, in Snelgrove, made it clear that the DeJesus propensity rule is not limited to cases in which the defendant is charged with a sex offense. In Snelgrove, the court stated: ‘‘We conclude that this rationale for the exception to the rule barring propen- sity evidence applies whenever the evidence establishes that both the prior misconduct and the offense with which the defendant is charged were driven by an aberrant sexual com- pulsion, regardless of whether the prior misconduct or the conduct at issue resulted in sexual offense charges.’’ State v. Snelgrove, supra, 760. The admission of the evidence of a defendant’s uncharged sexual misconduct to prove that the defendant had a tendency or a propensity to engage in aber- rant and compulsive sexual behavior should be accompanied by an appropriate cautionary instruction limiting the purpose for which it may properly be used. State v. George A., supra, 294–95; State v. DeJesus, supra, 474. (c) When evidence of other crimes, wrongs or acts is admissible. Subsection (a) specifically prohibits the use of other crimes, wrongs or acts evidence to prove a person’s bad character or criminal tendencies. Subsection (c) however, authorizes the court, in its discretion, to admit other crimes, wrongs or acts evidence for other purposes, such as to prove: (1) intent; e.g., State v. Lizzi, 199 Conn. 462, 468–69, 508 A.2d 16 (1986); (2) identity; e.g., State v. Pollitt, 205 Conn. 61, 69, 530 A.2d 155 (1987); (3) malice; e.g., State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979); (4) motive; e.g., State v. James, 211 Conn. 555, 578, 560 A.2d 426 (1989); (5) a common plan or scheme; e.g., State v. Randolph, 284 Conn. 328, 356, 933 A.2d 1158 (2007); State v. Morowitz, 200 Conn. 440, 442–44, 512 A.2d 175 (1986); (6) absence of mistake or accident; e.g., State v. Tucker, 181 Conn. 406, 415–16, 435 A.2d 986 (1980); (7) knowledge; e.g., State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961); (8) a system of criminal activity; e.g., State v. Vessichio, 197 Conn. 644, 664–65, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); (9) an element of the crime charged; see, e.g., State v. Chyung, 325 Conn. 236, 263–64, 157 A.3d 628 (2017) (prior misconduct evidence held admissible to prove intent to kill); see also State v. Torres, 57 Conn. App. 614, 622–23, 749 A.2d 1210, cert. denied, 253 Conn. 927, 754 A.2d 799 (2000); (10) to corroborate crucial prosecution testimony; e.g., State v. Mooney, 218 Conn. 85, 126–27, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); or 11