State v. Tozier, 136 Conn. App. 731

Defendant Tozier was convicted after a jury trial of two counts of sexual assault in the first degree under § 53a-70(a)(4) based on the victim being mentally incapacitated during intercourse.
The victim testified she consumed beverages defendant provided; she became intoxicated and unable to consent, while defendant engaged in vaginal intercourse with an object and cunnilingus, among other acts.
Evidence included defendant’s acts in preparing and serving drinks, the victim’s loss of memory and paralysis during the events, and the defendant’s statements that the events would be kept secret.
Medical examination days later showed cervical bleeding; blood/urine tests later did not reveal specific substances, but expert testimony linked symptoms to possible drugs (e.g., GHB, ketamine) not detectable days later.
Defendant argued the state failed to prove what substance was administered and that the victim’s intoxication did not prove temporary incapacity; trial court denied motions for acquittal.
On appeal, defendant challenged evidentiary sufficiency, jury instructions, vagueness of statutes, and the in camera review of the victim’s counseling records.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for §53a-70(a)(4)	Tozier administered a drug rendering victim mentally incapacitated; beverages showed adulteration.	No proof of a specific substance and no proof victim was temporarily incapable.	Sufficiency supported; circumstantial and clinical evidence allowed a reasonable inference of drugging and incapacity.
Jury instruction adequacy on element of drug administration	Court properly charged elements; no need to prove specific substance identified.	Court failed to require proof of drug administered and lack of knowledge that victim was incapacitated.	Waiver/plain error not established; defendant implicitly waived via acquiescence; charge upheld.
Vagueness of §§ 53a-70(a)(4) and 53a-65(5) as applied	Statutes clearly prohibit sexual intercourse with a mentally incapacitated person even if the drug’s identity is unknown.	Statutes are vague for requiring knowledge of incapacity or substance administration.	Statutes, as applied, provided adequate notice; no constitutional vagueness.
In camera review and disclosure of counseling records	Records may contain relevant impeachment material; disclosure may be needed to ensure fairness.	Records could contain impeachment material; court erred in sealing and not disclosing.	No abuse of discretion; records lacked material probative value for impeachment; motions denied.

State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011) (implicit waiver of instructional-error claims if defense acquiesced after review)
State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984) (Esposito-Bruno framework for confidentiality and in camera review of counseling records)
State v. Bruno, 197 Conn. 326, 495 A.2d 1?65 (1985) (privacy rights and in camera review procedure with counselor records)
State v. Delgado, 64 Conn. App. 312, 780 A.2d 180 (2001) (in camera review standard for sensitive materials in sexual-assault cases)
State v. Nasheed, 121 Conn. App. 672, 997 A.2d 623 (2010) (statutory vagueness and standard of review for vagueness challenges on appeal)
State v. LaFontaine, 128 Conn. App. 546, 16 A.3d 1281 (2011) (de novo review for vagueness with presumption of statutory validity)
State v. Adams, 225 Conn. 270, 623 A.2d 42 (1993) (broad standard for reviewing sufficiency claims and extraordinary-review eligibility)