33 Conn. App. 133 | Conn. App. Ct. | 1993
The defendant appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the second degree in violation of General Statutes § 53a-7V and four counts of risk of injury to a child ■ in violation of General Statutes § 53-21.
The jury could reasonably have found the following facts. The defendant and his wife were married in 1973 and separated in 1988. The defendant moved into the
Around Easter, 1988, the defendant began sexually molesting his daughter A, who was then seven years old. It began by the defendant taking A into his bedroom, alone, and tickling her between her legs while she was clothed. He told her she was all right when she told him to stop and began crying. A couple of weeks later, he called A into his bedroom, took her pants off and started playing with her vagina by putting his fingers inside. After the incident, A refused to go upstairs with the defendant when asked until he began yelling at her. Sometimes, she would resist further by going into the bathroom. The defendant would knock on the door and tell her to come out; when she did, he would take her into the bedroom, shut the door, and put his fingers inside her vagina. When he did this A would cry and tell him to stop and “that she did not like that.” The defendant responded that “it was all right; that [she] was his little girl; [and] that he wasn’t going to hurt her.”
Thereafter, the defendant began inserting his penis inside A’s vagina. A would sit on the bed and the defendant would tell her to lie down. When A complied, the defendant took off her pants, took down his own pants, and spread A’s legs apart. The child would close her eyes; she knew her father was putting his penis inside her because “it was hard,” “it hurt” and “it didn’t feel like his fingers anymore.” The defendant positioned himself above her, keeping himself up, pushing on the bed so he would not fall on her, and moved his penis back and forth. A could feel the bed move. She cried because it hurt, more than when the defendant put his fingers inside her. The defendant told A she was “a
On March 4,1991, A gave a statement to a police officer about the sexual assaults. She had not told anyone about the episodes earlier because she did not want to talk about it and did not want anyone, including her mother, to know. She did not tell her mother because she did not “really think it was really any of her business.”
The younger victim, T, testified about two incidents in which the defendant penetrated her vagina using a washcloth while he was bathing her. One of the incidents occurred while T and her siblings were visiting the defendant at his parents’ home in Waterbury. T was six years old at the time.
I
The defendant first claims that the trial court improperly granted the state’s motion to consolidate. He argues that combining the two cases, which were extremely detrimental to each other, so prejudiced the
General Statutes § 54-57
Evidence that the defendant had engaged in sexual activity with one daughter would have been admissi
“A trial court will not have manifestly abused its discretion in denying severance if the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly.” Id. The evidence in this case was presented to the jury in an orderly fashion, distinguishing the acts involving each child in a logical and separate manner. The two cases were presented separately. Each of the seven counts was tendered independently, with separate instructions from the court to the jury as to the elements of each, and an indication as to which child a particular count referred. Our review of the record also discloses that the matters were not so complex,
II
The defendant next claims that the evidence was insufficient to sustain a conviction for sexual assault in the second degree under § 53a-71 because penetration of the vagina with a finger or fingers does not fall within the definitions of sexual intercourse as defined by General Statutes § 53a-65 (2).
The defendant urges us to adhere to a strict construction and to adopt a narrow and technical definition of “manipulate” to mean “operate or treat by the hand.” In the context of the statute, the phrase “object manipulated by an actor” does not lead us to conclude that because a finger is part of the hand, it cannot be operated or treated by the hand. We do not go beyond the plain words of the statute. Even accepting the definition proposed by the defendant, since “manipulate” is not expressly defined in the penal code, we cannot conclude that an actor cannot manipulate his finger by using his hand.
“Although we recognize the fundamental principle that criminal statutes are to be construed strictly, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent.” (Internal quotation marks omitted.) State v. Stevens, 224 Conn. 730, 736-37, 620 A.2d 789 (1993). “In order to ascertain and give effect to the apparent intent of the legislature, we must examine the language of the statute in light of the purpose that it was designed to achieve. . . .” (Citations omitted.) Szudora v. Fairfield, 214 Conn. 552, 557, 573 A.2d
The general purpose of the statute in question is to protect children from being sexually violated. The statute proscribes sexual intercourse — the act of penetration, however slight. Thus, the statutory purpose is met regardless of what particular object is used to accomplish that penetration. Further, the statute elsewhere specifically prohibits penetration using other parts of the actor’s body. It would be unreasonable to conclude that penetration by an actor’s tongue or penis constitutes sexual intercourse, while penetration by a finger does not. Statutes should be construed so as not to reach an absurd or unreasonable result. State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980). The trial court properly concluded that penetration of the child’s vagina by the defendant’s finger constituted sexual intercourse by an “object manipulated by an actor” for purposes of the statute.
Ill
Lastly, the defendant claims that the trial court improperly admitted into evidence photographs of the victim’s vagina taken almost three years after the alleged assault.
At trial, the state sought to have admitted into evidence two photographs of A’s vagina taken with a colposcope in support of the testimony of a witness, the nurse who examined A at the Child Abuse Diagnostic Clinic at St. Francis Hospital in February and March, 1991. The defendant argued that the evidence was
“The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion.” State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). The determination of remoteness, like relevancy, is left to the trial court’s broad discretion. State v. Payne, 219 Conn. 93, 112, 591 A.2d 1246 (1991); State v. Maldonado, 193 Conn. 350, 365, 478 A.2d 581 (1984). “The trial court also has broad discretion in balancing the probative value of proffered evidence against its prejudicial effect. That discretion is subject to reversal only where an abuse of discretion is manifest or where an injustice appears to have been done.” State v. Willis, 221 Conn. 518, 522, 605 A.2d 1359 (1992).
The defendant has assumed a heavy burden in seeking to reverse the exercise of judicial discretion. The purpose of the offer was to demonstrate, through the photographs, the physical indications on the hymen, tending to show penetration. Under the circumstances of this case, the trial court could reasonably have concluded that the effects of vaginal penetration of a seven year old child still present and observable through photographs taken at the age of ten, were relevant to a material fact, highly probative, and not remote. We cannot conclude that the trial court abused its discretion in admitting the photographs.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-71 provides in pertinent part: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”
Section 53a-71 was amended by Public Acts 1993, No. 93-340, § 2. Since the defendant was convicted under the prior version of the statute and the amendment does not affect the statutory construction issue on appeal, we deal only with the language of the statute prior to its amendment.
General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does an act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
Five counts, two counts under General Statutes § 53a-71 and three counts under § 53-21, involved the victim A, while the remaining two counts, one each under §§ 53a-71 and 53-21 involved the victim T.
T testified to a second, similar incident that took place in Philadelphia. This incident was not at issue in the case since the court instructed the jury that Pennsylvania crimes are not actionable in Connecticut.
General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”
Practice Book § 829 provides: “The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”
See State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987) (duration and complexity of trial enhances likelihood that jury would weigh evidence against defendant cumulatively, rather than independently in each case).
See State v. Boscarino, 204 Conn. 714, 723-24, 529 A.2d 1260 (1987) (holding that trial court improperly consolidated four separate incidents of first degree sexual assault involving use of knife); State v. Silver, 139 Conn. 234, 240-41, 93 A.2d 154 (1952) (“Substantial injustice might result to a defendant where the evidence of one of the several crimes
General Statutes § 53a-65 provides in pertinent part: “DEFINITIONS. As used in this part, except section 53a-70b, the following terms have the following meanings:
“(1) ‘Actor’ means a person accused of sexual assault.
“(2) ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. . . .”
We note that only one count, count two of the substitute information, which involved the victim A, alleges penetration of the vagina by “finger or fingers.” Count six, involving the victim T, charges penetration with “an object.” The evidence presented could reasonably have allowed the jury to find that object to be a washcloth. The defendant does not contest that a washcloth can be an object.