State v. Elmer G.
170 A.3d 749
Conn. App. Ct.2017Background
- Defendant Elmer G. was tried jointly on sexual assault and restraining-order violation informations alleging he sexually abused his daughter (the victim) after bringing her from Guatemala and later contacted her in violation of restraining orders.
- Victim (born in Guatemala) alleged repeated sexual abuse beginning as a child, including penile-vaginal intercourse and fellatio; medical exams found hymenal notching and an STI.
- An ex parte restraining order (Mar 2, 2012) and a temporary restraining order after hearing (Mar 15, 2012) named A.N. as protected person and stated the orders also protected her minor children; the temporary order limited contact with the children to weekly supervised visits.
- Evidence at trial included victim testimony, text messages, a letter from defendant (translated), testimony about reporting to pastor and police, and the restraining orders and hearing transcript.
- Jury convicted defendant of two counts sexual assault 2nd degree, two counts risk of injury to a child, and three counts criminal violation of a restraining order; defendant appealed arguing insufficiency of evidence (fellatio count and restraining-order counts) and prosecutorial improprieties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for fellatio-based sexual assault | State: victim's testimony and context support finding of penetration ("put my mouth on his penis" and affirmative to lips) | Defendant: victim denied "he actually penetrate your mouth" rendering testimony ambiguous and insufficient | Held: Sufficient evidence — jury could reasonably infer penetration despite minor ambiguity; credibility/resolution for jury (deferential review) |
| Sufficiency of evidence for three restraining-order violations | State: orders protected children, defendant was served/attended hearing, counsel represented he understood and supervised-visit restrictions were explained; texts, letter, and phone evidence show contact during temporary order | Defendant: Orders named A.N. not victim; orders in English and defendant Spanish-speaking; no proof defendant knew terms or sent letter during temporary order | Held: Sufficient evidence — temporary order covered children and evidence supported defendant knew its terms and contacted victim during its effective period; even if ex parte knowledge unclear, counts relied on temporary order conduct |
| Prosecutorial bolstering on direct/redirect (asking witnesses if "making this up" / "telling the truth") | State: questions were evidentiary (rehabilitative or foundational) rather than constitutional misconduct | Defendant: Such questions impermissibly bolstered credibility and were prosecutorial impropriety | Held: Treated as unpreserved evidentiary claims, not reviewed as constitutional impropriety (defense failed to preserve objection) |
| Prosecutorial conduct in closing (vouching, sympathy appeals, facts not in evidence) | State: argument was fair comment, inferences from testimony, and appeal to jurors' common sense; references to other interviews were grounded in testimony | Defendant: Prosecutor vouched for credibility, appealed to sympathy, and referenced a non-testifying guidance counselor | Held: No reversible impropriety — remarks were permissible argument on evidence, inferences, and jurors' common sense; references to counselor supported by witness testimony |
Key Cases Cited
- State v. Crespo, 317 Conn. 1 (Conn. 2015) (standard for reviewing sufficiency of evidence)
- State v. Scott, 256 Conn. 517 (Conn. 2001) (definition of penetration and intent for fellatio)
- State v. Hicks, 319 N.C. 84 (N.C. 1987) (analogy on ambiguous victim testimony and need for corroboration)
- State v. Morgan, 274 Conn. 790 (Conn. 2005) (deference to jury credibility determinations)
- State v. Juan V., 109 Conn.App. 431 (Conn. App. 2008) (foundational questioning for hearsay exceptions; evidentiary context)
- State v. Albino, 130 Conn.App. 745 (Conn. App. 2011) (discussion of alleged prosecutorial bolstering)
- State v. Fauci, 282 Conn. 23 (Conn. 2007) (framework and Williams factors for prosecutorial impropriety)
- State v. Warholic, 278 Conn. 354 (Conn. 2006) (limits on vouching and permissible credibility argument)
- State v. Whelan, 200 Conn. 743 (Conn. 1986) (foundation for admissibility of recorded statements)