187 Conn. App. 537
Conn. App. Ct.2019Background
- Defendant Jerrell R. was convicted by a jury of unlawful restraint (second degree) and two counts of risk of injury to a child under Conn. Gen. Stat. § 53-21(a)(1) (situational risk) and § 53-21(a)(2) (sexual-contact risk) arising from conduct against his six‑year‑old daughter.
- Victim and her mother testified that the defendant waited until the mother was in the shower, pulled the child’s pants down, pinned her against a wall, exposed his penis and forced her head toward it.
- In a forensic interview the victim said the defendant touched her vagina; the defendant gave inconsistent statements, admitting he might have touched her and later saying it may have been accidental.
- The jury acquitted on a first‑degree sexual assault count but convicted on unlawful restraint and both risk‑of‑injury counts.
- On appeal the defendant argued (1) double jeopardy barred convictions under both § 53‑21(a)(1) and (a)(2) because they arose from the same transaction, and (2) prosecutorial impropriety in closing and rebuttal deprived him of a fair trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Whether convictions under § 53‑21(a)(1) and (a)(2) violate double jeopardy | The information and evidence supported separable factual bases for each count; jury could reasonably find distinct acts supporting each offense | Both convictions arise from the same transaction and thus constitute duplicative punishment | Affirmed: no double jeopardy—evidence and state theory showed separable acts supporting each conviction |
| Whether prosecutor misstated law in closing by intermingling evidence for the two § 53‑21 counts | Prosecutor accurately explained the difference between situational risk and sexual‑contact risk and may argue reasonable inferences from the evidence | Intermingling misled the jury about which evidence applied to which charge | Not improper; remarks were reasonable argument on evidence and defendant did not object |
| Whether prosecutor improperly expressed personal opinion about witness credibility in rebuttal | Prosecutor invited jury to draw commonsense inferences from evidence; phrase “in my opinion” did not inject unsworn testimony | The comment was an improper expression of personal opinion about witness credibility | Not improper; statement was argument from testimony and inferences, and no contemporaneous objection was made |
| Scope of review for unpreserved double jeopardy claim | Court may review under Golding; examine information, trial evidence, and state’s theory per Porter | Claim unpreserved and should be rejected | Claim reviewed and rejected on the merits: convictions arose from separable acts |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (double jeopardy test comparing statutory elements)
- State v. Golding, 213 Conn. 233 (procedural framework for review of unpreserved constitutional claims)
- State v. Porter, 328 Conn. 648 (in double jeopardy analysis, courts may consider charging instruments, trial evidence, and state’s theory to determine what jury reasonably could have found)
- State v. Schovanec, 326 Conn. 310 (separate acts and prosecutor’s presentation can support multiple convictions arising from related conduct)
- State v. Mezrioui, 26 Conn. App. 395 (earlier decision relying only on charging documents; distinguished here)
- State v. Warholic, 278 Conn. 354 (prosecutor may not express personal opinion on witness credibility; but argument drawing inferences from evidence is permitted)