Opinion
No. CR 09-0138673
April 25, 2011
RULING ON MOTION FOR JUDGMENT OF ACQUITTAL
The defendant was charged by way of a long form information with the following crimes: Sexual Assault in the first degree in violation of CGS § 53a-70(a)(2), and two counts of Risk of Injury to a Minor in violation of CGS § 53-21(a)(2) and (a)(1). The jury convicted the defendant on all counts. The defendant now moves the court for a motion for judgment of acquittal on all counts. He alleges insufficiency of the evidence to support a finding of guilty beyond a reasonable doubt and that the two convictions for risk of injury should be merged, and an acquittal on one of the counts enter. For the following reasons, the motion is denied.
The majority of the defendant's claim is that the evidence produced was insufficient to permit a finding of guilty beyond a reasonable doubt. The standard of review for a claim of insufficient evidence is well established. A two-part test is applied: "'First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . In evaluating evidence, the trier is not required to accept as dispositive those inferences that are consistent with the defendant's innocence . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical . . . This does not require each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury's factual inferences that support a guilty verdict need only be reasonable . . .
"[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant, that, had it been found credible by the trier, would have resulted in an acquittal . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence . . . Indeed, direct evidence of the accused's state of mind is rarely available . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom . . . [A]ny 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.' (Internal quotation marks omitted.)" State v. Mourning, 104 Conn.App. 262, 266-67 (2007), quoting State v. Aloi, 280 Conn. 824, 842-43 (2007).
The court will not conduct a lengthy review of the evidence produced at trial. Suffice to say that, based upon the evidence presented to the jury, there was sufficient evidence for the jury to find, beyond a reasonable doubt, that the defendant had committed the crimes with which he stands convicted.
The defendant also specifically claims that there is insufficient evidence presented on the element of penetration, on the count of sexual assault in the first degree. The court disagrees. The complainant testified that the defendant was "putting his private in [her] back hole"; that she felt a feeling in her bottom when the defendant was moving back and forth on top of her as she lay face down on the bed, and that the "pushing" she felt in her "back hole" hurt. The jury was well within its province to credit the testimony of the complainant in determining that the state had proven the element of penetration beyond a reasonable doubt.
The defendant also claims that his convictions for risk of injury to a minor, on different subsections, should be merged. When a defendant is convicted of two offenses arising out of a single transaction and one offense is a lesser included offense of the other, the lesser offense is merged into the greater and only one sentence is imposed. State v. Chicano, 216 Conn. 699, 706-07 (1990), cert. denied, 501 U.S. 1254 (1991). A defendant can be charged with and convicted of separate crimes arising from the same actions as long as all the elements are proven. According to the long form information, the state charged risk of injury for two separate acts: the showing of the pornographic video in the presence of the complainant, and for the defendant's contact with the intimate parts of the complainant. Each count charged a separate criminal act. See, e.g., State v. Hayes, 20 Conn. App. 737, 754 (1990). As such, these two offenses are not merged, as one is not a lesser included offense of the other.
For all the foregoing reasons, the court denies the defendant's motion for judgment of acquittal.
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR NEW TRIAL
The defendant, pursuant to Practice Book § 42-53(a), has moved for a new trial. The defendant was convicted by a jury on February 18, 2011 on the charges of sexual assault in the first degree, in violation of CGS § 53a-70(a)(2), and two counts of risk of injury to a minor in violation CGS § 53-21(a)(2) and (a)(1). He has timely filed this motion for new trial. The defendant claims that twenty-two errors at trial were either constitutional or so materially injurious to his case that a new trial is warranted. The court disagrees.
Claim twenty-two alleges "such other grounds . . . as a hearing may disclose."
"Practice Book § 42-53 in concerned with motions for a new trial based on errors committed during the trial . . ." State v. Santaniello, 96 Conn.App. 646, 672, cert. denied, 280 Conn. 920 (2006). It "provides for the granting of a motion for a new trial in the interests of justice, for constitutional error or for other materially injurious error." Id.
The defendant's twenty-two claims can be reduced to two categories of claimed error: the court's evidentiary rulings and the charge to the jury.
Claims one through six allege constitutional violations of the confrontation clause, which provides that the accused has a right to cross-examine witnesses against him. Crawford v. Washington, 541 U.S. 36 (2004). The defendant claims that the court erred in precluding the cross examination of the complainant and her mother on two broad issues: the mother's involvement in a religion known as the United Nation of Islam and a claim of improper touching made by the complainant against an individual referred to during the trial as "Uncle J.B:"
Claims 1, 3, 5, and 6 relate to evidence regarding The United Nation of Islam, which the court ruled during trial was not probative. Although the "the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment," "the trial court has broad discretion in determining the admissibility of evidence." State v. Colton, 227 Conn. 231, 249 (1993); State v. Valentine, 255 Conn. 61, 70 (2000). Furthermore, the confrontation clause does not give the defendant the right to engage in unrestricted cross examination. State v. Aponte, CT Page 10072 249 Conn. 735, 750 (1999). With respect to the Sixth Amendment, "a defendant may elicit only relevant evidence through cross-examination." State v. Valentine, 255 Conn. at 70; State v. Aponte, 249 Conn. at 750. Since the court has already ruled that the evidence is not probative, there is no violation of the confrontation clause.
Claims 2 and 4 allege confrontation clause violations regarding the preclusion of evidence relating to a touching of the complainant by her supposed uncle J.B. The court ruled at trial that admitting this evidence would be in violation of C.G.S. § 54-86, Connecticut's "rape shield" law as the evidence did not fit one of the statute's four listed exceptions to the bar on evidence of the victim's sexual conduct. § C.G.S. 54-86. Claim 21 also falls into this category. Furthermore, the determination of whether the State's interest in excluding evidence under the rape shield statute must yield to the defendant's Sixth Amendment confrontation rights depends on the facts and circumstances of the particular case. State v. DeJesus, 270 Conn. 826, 837 (2004). Since the court has already decided that the rape shield evidence should be excluded given the particular facts and circumstances of the case, the court declines to revisit its rulings on these grounds.
The balance of the defendant's grounds regards either jury instructions or evidentiary rulings that must be materially injurious to the defendant for the court to grant a new trial. In regards to evidentiary rulings, "[T]o require the reversal of a conviction because of evidentiary error, the defendant must show that the error was harmful, i.e., that it is more probable than not that the erroneous ruling by the trial court likely affected the outcome of the trial." State v. Valentine, 240 Conn. 395, 404 (1997).
In claim number twenty, the defendant complains that the court's ruling precluding testimony regarding the practices and beliefs of the United Nation of Islam precluded him from proferring evidence on the subject during his own direct testimony. The defendant did not testify at trial. The defendant could have taken the stand, and testified in accordance with the court's ruling on the subject of the United Nation of Islam and he chose not to. The defendant must suffer the consequences of his failure. See State v. LaFountain, 127 Conn.App. 819, 840 (2011).
In claims twelve, thirteen and fourteen, the defendant claims that evidentiary rulings of the court, pertaining to the admission of reports from the sexual abuse clinic where the complainant was examined, were erroneous. Similarly, claim nineteen alleges error in the admission of expert testimony concerning the complaining witness, a child under the age of thirteen at the time of the offense. Claim eighteen alleges that the court erred in striking testimony regarding the complainant's diagnosis of chlamydia and in failing to give a curative instruction for the erroneous admission of such evidence.
The court heard extensive argument on these matters before the presentation of evidence, as they were the subjects of motions in limine filed by the parties. The record discloses the extensive argument presented to the court, both prior to and during the presentation of evidence, as well as the court's consideration of the arguments in ruling.
The defendant's claims are simply reiterations of arguments made by the defense during the course of the trial, and ruled upon by the court. The defendant has presented nothing new in his arguments, and as the court has already ruled upon these issues, the court declines to revisit its rulings.
The threshold for materially injurious in a sexual assault case is a high one; see, e.g., State v. Hammond, 221 Conn. 264, 286-88 (1992); and the court has wide discretion to make evidentiary rulings. None of the evidentiary issues alleged (see claims 12-14, 16, and 18-20) rise to that level. These are discretionary evidentiary rulings that were ruled upon at trial.
The remaining claims stem from the court's charge to the jury. Claim fifteen alleges that the court failed to inform the jury of additional information that related to the subject of a request during deliberations. The decision whether to grant a jury's request to review testimony is within the court's discretion and the court is not required to have the jury hear more than the segment requested. State v. Harris, 227 Conn. 751 (1993). The testimony replayed for the jury was relevant to their question.
Claims seven through eleven and seventeen raise issue regarding requests for jury instructions that were argued and ruled upon at the charge conference. The parties had a full opportunity to present their arguments as to the charge to the court during the charge conference. The court also notes that both sides received a copy of the court's charge the evening before closing arguments were made. The record reflects the cases relied upon by the court for its charge, and need not address them again here. A charge must be correct in the law, adapted to the issues and sufficient for the guidance of the jury. State v. Mason, 186 Conn. 574, 585 (1982). A jury is presumed to follow the trial court's instruction, in the absence of a clear indication to the contrary. State v. Negron, 221 Conn. 315, 331 (1992). The defendant has failed to show a "clear indication" that the jury failed to follow the court's instructions.
For all of the foregoing reasons, the motion for a new trial is denied.