State v. ERNESTO P.
2012 WL 1398654
Conn. App. Ct.2012Background
- Late summer 2006: 11-year-old victim, friend of C, is assaulted by the defendant in Hartford; first assault included touching outside clothes and a threat that something bad would happen if she told.
- C witnessed the first assault, denied at first, later corroborated partially; victim avoided defendant's home thereafter due to fear.
- Two months later, victim and C were in defendant's home when he ordered C to shower; defendant photographed the victim nude and sodomized her.
- Police later found 26 photographs of various females, including eleven depicting a young girl nude; victim identified herself in some photos.
- Defendant was arrested, waived Miranda rights, confessed in part to a police interview; defendant claimed victim was enamored with him and that there was a lesbian relationship with his daughter.
- Jury convicted defendant on all charged counts; trial court sentenced to twenty years with five years special parole.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence shows threat of force for first‑degree sexual assault | Niemeyer: jury could infer force threat from conduct and disparity in size/strength | Mahone/Weaker- Victim could misperceive; no explicit force threat | Yes; evidence supports threat of force as to both first‑degree and third‑degree assaults. |
| Whether employing a minor in an obscene performance requires public distribution | Audience can be a single photographer or viewer under § 53a‑196a(a)(1) | Audienc e must be a public/distributed audience; personal use not enough | Yes; audience can be a single photographer/viewer; conviction sustained. |
Key Cases Cited
- State v. Niemeyer, 258 Conn. 510 (2001) (standard of review for evidentiary sufficiency; circumstantial evidence allowed)
- State v. Russell, 101 Conn.App. 298 (2007) (credibility of witness; jury may credit testimony supporting guilt)
- State v. Mahon, 97 Conn. App. 503 (2006) (sexual assault by use of superior size/strength to coerce submission)
- State v. Kulmac, 230 Conn. 43 (1994) (threats of superior strength may sustain conviction)
- State v. Ehlers, 252 Conn. 579 (2000) (definition of audience in obscenity/child pornography statute)
- State v. Sorabella, 277 Conn. 155 (2006) (self-recording may satisfy audience requirement under analogous statute)
- State v. Rodriguez-Roman, 297 Conn. 66 (2010) (statutory construction guidance; relationship of statutes)
- State v. Reynolds, 264 Conn. 1 (2003) (interpretation of identical terms across related statutes)
- United States v. Daye, 571 F.3d 225 (2d Cir. 2009) (physical injury risk in sexual encounters supports inference of fear/force)