STATE OF CONNECTICUT v. JUAN C.*
(AC 37552)
Keller, Prescott and West, Js.
Argued September 21, 2016—officially released January 10, 2017
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Heather N. Wong, certified legal intern, with whom was Glenn W. Falk, assigned counsel, for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Richard J. Rubino, senior assistant state’s attorney, for the appellee (state).
Opinion
WEST, J. The defendant, Juan C., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of
The jury reasonably could have found the following facts. The defendant is N’s3 biological father and, although N has always lived with her mother, she visited the defendant frequently between her birth in October, 1997, and 2005. During that time, both N and the defendant lived in New York. The defendant later moved to Hartford, and N did not see the defendant from 2005 until the summer of 2008, when he ‘‘popped back up’’ at the house of N’s mother and asked to spend more time
At some point during the visit, while they were home alone, the defendant called N into his room to watch cartoons on television. The defendant was lying in his bed with only his boxer shorts on, and N was wearing a T-shirt, pajama pants, and underwear. N entered the bedroom, and the defendant asked her to lie on the bed with him, which she did. The defendant then asked N to move closer to him and lie on his chest, which she did. The defendant began rubbing N’s back and buttocks over her clothing. He then put his hands under N’s pajama pants and underwear and penetrated her vagina with his finger. While doing so, the defendant masturbated with his other hand. N then got off the bed and went back to her own room, sat on her bed, and watched television.
N called her mother at some point after the incident to tell her that she wanted to go home to New York, but did not disclose what had happened. The defendant claimed that he did not have enough money for gas to drive her home, so N stayed in Hartford for a few more days. After he brought her home, the defendant ‘‘disappeared’’ again, and N did not see him for another two years. N did not disclose to anyone that the July, 2008 incident had occurred until October, 2010, when she told her teacher and her mother. Subsequently, New York Child Protective Services (child protective ser-vices), the Connecticut Department of Children and Families (department), and the Hartford Police Department became involved, and the defendant was arrested.
Before the start of the evidentiary portion of the trial, the defendant requested a continuance due to the fact that he had received a department report that morning that mentioned the child protective services investigation, and he wanted time to obtain more information about the New York investigation. The court denied his request and proceeded to trial. At trial, N, her mother, a Hartford police officer, and a licensed clinical social worker testified for the state. At the close of the state’s evidence and again at the close of his own evidence, the defendant moved for a judgment of acquittal as to count one, charging sexual assault in the first degree. The court denied the defendant’s motion.
On July 17, 2014, the jury found the defendant guilty on all three counts. The court sentenced the defendant on October 27, 2014, to the following: twenty-five years incarceration with a mandatory minimum of five years incarceration, execution suspended after twelve years, and fifteen years of probation for the first degree sexual assault conviction; twenty years incarceration with a mandatory minimum of five years incarceration, execution suspended after twelve years, and fifteen years of probation for the risk of injury to a child conviction under
I
The defendant’s first claim on appeal is that the court erred in refusing to grant a continuance, which the defendant requested on the morning of trial to allow him to obtain newly discovered information about the child protective services investigation contained in the department protocol. Specifically, the defendant argues that the child protective services investigation records would likely contain material essential to his defense, which would cast doubt on the veracity of N’s statements regarding the defendant’s prior uncharged misconduct. The state argues that the court did not abuse its discretion in denying the defendant’s request. We agree with the state.
The record reveals the following additional facts and procedural history relevant to this claim. In addition to the allegations that the defendant sexually assaulted N in Hartford in July, 2008, there are also uncharged misconduct allegations that the defendant sexually assaulted N in New York in 2005. The court allowed the state to question N at trial about this uncharged conduct, and she testified that during a visit in New York with the defendant in 2005, while N was seven years old, the defendant sexually assaulted her by fondling her vagina to see if she had ‘‘wet [her]self.’’ N did not disclose this incident until October, 2010, when she also told her mother about the July, 2008 Hartford incident.
There was evidence presented at trial that, shortly after N’s disclosure, her mother contacted child protective services in New York, which then opened an investigation into the matter. In an interview with child protective services social worker Kelly Dickinson, N disclosed information about the 2008 Hartford incident only, and nothing about the 2005 New York incident.6 Child protective services subsequently referred the case to the department because the only allegations were those arising from the Hartford incident.
Months before the beginning of trial, the defendant received from the state a department form, called Form 737 (form), which the department had sent to the Hartford Police Department to inform the police that the department was conducting an investigation into the July, 2008 Hartford incident.7 The form states, inter alia, that ‘‘there is a companion investigation in the [s]tate of New York as a result of current allegations,’’ and also that N’s mother ‘‘reported [to the department] that [N] also reported that when [the defendant] was residing in New York he used to
On the morning of the start of trial, the defendant received a copy of a the department’s investigation protocol (protocol). The protocol contained case notes from a department social worker and included comments made by Dickinson, who had referred the case to the department. According to the case notes, Dickinson reported to the department that N ‘‘did not make any disclosures of any incidents taking place in the Orange County [New York] jurisdiction. [N] did not make any disclosures about anything happening in the Bronx area either; she did not want to talk about it. [Dickinson] reported that [N stated that] nothing happened in Orange [County], and that it happened in Connecticut, however, she was not clear. [Dickinson] reported that [N] stated that she was too young when she visited in the Bronx and she did not want to talk about it. [Dickinson] reported that ‘they,’ meaning her and the police in New York, did not want to press her for [an] interview due to the fact that they did not know [how] many more people she would have to talk to.’’
Upon receiving the protocol, the defendant objected to proceeding with trial and requested a continuance in order to procure additional investigation materials from New York. The defendant’s counsel stated: ‘‘There is an indication—it’s a hearsay indication because it’s the author’s report about what he or she was told by what appeared to be state of New York authorities with [child protective services] who are investigating this claim because of [N] and her mother living in New York and that’s where the disclosure was made. And that indicates that [N] did make some disclosure to the New York authorities about the incident that we’re presently on trial for. . . . [I]n terms of the uncharged misconduct, [N] specifically declined to discuss that issue with the New York authorities. I do not know the reason for that. There’s some suggestion by the [department social worker] being told that—something about [N] thought she was too young or didn’t remember.’’9
Additionally, the defendant’s counsel argued: ‘‘[M]aybe a more practical nuts and bolts view of this. [N] testifies. On cross, I ask her: Is it true that you went in and talked to child protective services on the date certain? And she says no or she says, I don’t remember, I’m not in a position at the present time to follow that up. I know it seems to have happened, but I know essentially by hearsay. Any of the myriad of things that we have discussed that could be described as exculpatory, I’m in the same position. I’m not properly prepared at this time, having only received the report today, to properly represent [the defendant].’’
In denying the defendant’s requested continuance, the court noted, inter alia, that the case had been pending since June, 2011, and, in terms of the defendant’s access to child protective services and department reports, that the state’s attorney’s office had an open file policy, and that the defendant did not file any discovery motions. The court also noted that, although there had been some difficulty communicating with child protective services, the department records, which were available to the defendant at least months before the start of trial, mentioned the investigation done by child protective services in New York.10 Furthermore, the court noted that N was subject to cross-examination.
On appeal, the defendant argues that the court abused its discretion in denying his continuance request because the investigation records from child protective services likely contained material essential to his defense. The state argues that the court’s denial of the defendant’s continuance request was not an abuse of discretion. We agree with the state.
The standard of review and applicable law relevant to this claim are well settled. ‘‘The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. . . . Every reasonable presumption will be made in favor of the trial court’s proper exercise of discretion. . . . There is no mechanical test for determining whether the denial of a continuance constitutes an abuse of discretion. A reviewing court must consider the particular circumstances of each case, paying special attention to the reasons presented to the trial court at the time the request was denied.’’ (Citations omitted; internal quotation marks omitted.) State v. Hamilton, 30 Conn. App. 68, 82–83, 618 A.2d 1372 (1993), aff’d, 228 Conn. 234, 636 A.2d 760 (1994).
A court has the discretion to consider many factors when considering a request for a continuance, including ‘‘the timeliness of the request for continuance; the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; [and] the defendant’s personal responsibility for the timing of the request . . . . [A]n appellate court should limit its assessment of the reasonableness of the trial court’s exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance.’’ (Citations omitted; internal quotation marks omitted.) State v. Davis, 135 Conn. App. 385, 393–94, 42 A.3d 446, cert. denied, 305 Conn. 916, 46 A.3d 171 (2012).
After considering the relevant information before the trial court, we conclude that the court did not abuse its discretion when it denied the defendant’s motion for a continuance.
First, the court properly considered the timeliness of the defendant’s continuance request. This case had been pending for more than three years, and the defendant requested the continuance on the morning of trial, right before the court began hearing evidence. In considering the timeliness of the request, it is important to note that ‘‘[w]e are especially hesitant to
Second, the court properly considered whether a continuance would have negatively impacted opposing counsel, the witnesses, and the court. The request was made just before N, who lived out of state, took the stand to testify. In addition to N, there were three other witnesses prepared to testify that day, including N’s mother, who also lived out of state. Additionally, the parties and the court had invested significant time in this three year old case, and the state’s attorney, defendant’s counsel, and the court had already spent three days prior to trial selecting the jury, who was prepared to begin hearing evidence that day.
Third, as to the legitimacy of the reasons proffered in support of the defendant’s request, the defendant argued that the continuance was necessary in order to obtain additional information about the New York investigation that could be exculpatory, and that may cast doubt on the veracity of N’s testimony at trial. The defendant was merely speculating that any additional information from this investigation would benefit his defense. We have held that it is proper for a court to deny a continuance request, sought in order to obtain discovery evidence, where the benefit of such evidence is speculative. See id., 395.
In addition, the court properly considered the defendant’s personal responsibility for the timing of the request. The defendant’s counsel argued that, without more time to obtain further information about the New York investigation, he would not be able to properly represent the defendant. The defendant, however, could have obtained further information well before the start of trial, eliminating any need for the requested continuance. The court noted that the defendant had access to the state’s file through the open file policy of the state’s attorney’s office, and that the defendant could have filed discovery motions to obtain this information well before trial. Additionally, the defendant had in his possession months before trial the department form that referenced the New York investigation and that provided the name of and contact information for the child protective services social worker assigned to the investigation. Therefore, the defendant was on notice well in advance of trial that there had been a New York investigation, and he could have investigated further to procure any other information or documents to assist him in his defense.
Lastly, the defendant did not specify in his request how long of a continuance he was seeking. Therefore, the court had no indication as to the likely length of delay a continuance would cause. We have held that ‘‘[i]t is . . . within the trial court’s discretion to deny a continuance when the length of the delay sought is unspecified.’’ State v. Godbolt, 161 Conn. App. 367, 377, 127 A.3d 1139 (2015), cert. denied, 320 Conn. 931, 134 A.3d 621 (2016).
Accordingly, we conclude that the trial court did not abuse its discretion in refusing to grant the defendant’s continuance request.
II
The defendant’s second claim is that the trial court improperly denied his motion for a judgment of acquit-tal because the evidence was insufficient to support his conviction of sexual assault in the first degree as charged in the amended information.11 Specifically, the defendant contends
We first set forth our standard of review and the applicable statutes relevant to this claim. ‘‘The due process clause of the fourteenth amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’’ (Internal quotation marks omitted.) State v. Johnson, 165 Conn. App. 255, 288, 138 A.3d 1108, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016). ‘‘A defendant who asserts an insufficiency of the evidence claim bears an arduous burden. . . . In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that support’s the jury’s verdict of guilty. . . . If, however, the evidence is insufficient to meet the burden of proof of guilt beyond a reasonable doubt, bearing in mind that the state has the burden of establishing by such proof every essential element of the crime charged, the verdict must be set aside.’’ (Citations omitted; internal quotation marks omitted.) State v. Smith, 148 Conn. App. 684, 695, 86 A.3d 498 (2014), aff’d, 317 Conn. 338, 118 A.3d 49 (2015).
Section
The record reveals the following additional facts and procedural history relevant to this claim. Count one of the original information, dated July 2, 2014, charged the defendant with sexual assault in the first degree in violation of
After the close of the state’s case, the defendant moved for a judgment of acquittal on all three counts. Thereafter, the court asked the state if, in count one, it was still alleging that the defendant compelled the sexual intercourse by the use of force or by the threat of use of force, to which the state replied that it was pursuing only the use of force element.12 The court denied the defendant’s motion for a judgment of acquittal. Thereafter, on July 16, 2014, the state filed an amended information to reflect the change in count one,13 which still charged the defendant with sexual assault in the first degree in violation of
At trial, N’s testimony was the only direct evidence regarding the alleged events that occurred during the Hartford incident in July, 2008. When questioned by the prosecutor, N testified as follows:
‘‘Q. Now, in July of 2008, while you were visiting your father, the defendant in this case, what happened?
‘‘A. One early morning, I woke up and the defendant was in his room and I woke up to use the bathroom. And he called me in his room to watch cartoons. . . .
‘‘Q. So you walk into his bedroom, and what happens next?
‘‘A. He asked to me to come lay down with him.
‘‘Q. What do you do when he says that?
‘‘A. I go and lay down with my father.
‘‘Q. And then what happens?
‘‘A. He attempts to turn on the TV. . . .
‘‘Q. Was he successful?
‘‘A. No. . . .
‘‘Q. Then what
‘‘A. He asked me to move a little closer to him and lie on his chest.
‘‘Q. What do you do?
‘‘A. I move closer and lie on his chest.
‘‘Q. Then what happens?
‘‘A. He began to rub my back and then eventually—I’m sorry. And then eventually my butt, buttocks.
‘‘Q. Now you said he was rubbing your back.
‘‘A. Uh-huh.
‘‘Q. He was rubbing your buttocks. Over the clothes or under the clothes?
‘‘A. Over.
‘‘Q. So over the clothes. Then what happens?
‘‘A. He put his hand inside my pants.
‘‘Q. Okay. Does he—so he puts your—his hands in your pants?
‘‘A. Yes.
‘‘Q. Okay. Are you wearing underwear?
‘‘A. Yes.
‘‘Q. All right. Is he touching skin?
‘‘A. Yes.
‘‘Q. Then what occurs?
‘‘A. He used his finger to penetrate my vagina.
‘‘Q. Okay. He had tried to turn the TV on. Did [he] put the remote control down at this point?
‘‘A. Yes.
‘‘Q. So he had both hands free?
‘‘A. Yes.
‘‘Q. Was he doing anything else at this time? . . .
‘‘A. He had his hand in his boxer shorts and he was touching himself.
‘‘Q. What do you mean touching himself? Touching himself where?
‘‘A. He was touching his penis. . . .
‘‘Q. Okay. What happens? You said he penetrated your vagina with his finger?
‘‘A. Yes.
‘‘Q. What happens next?
‘‘A. I just—I moved away from him.
‘‘Q. And you moved away from him. Were you still on the bed?
‘‘A. No. I got up and walked away. . . .
‘‘Q. . . . So you left the room?
‘‘A. Yes.
‘‘Q. And then where did you go?
‘‘A. I went back to the room—the bedroom I was staying in down the hall.
‘‘Q. And then what did you do?
‘‘A. I just sat on my bed, well, the bed I was sleeping in, and turned on the TV.’’
On the basis of this testimony, the defendant appeals from the denial of his motion for judgment of acquittal as to count one, sexual assault in the first degree. The state was required to prove beyond a reasonable doubt that the defendant used force to compel N to engage in the sexual intercourse. The defendant argues that the state did not meet its burden. We agree.
Our Supreme Court has held that ‘‘use of force,’’ as defined by
The state argues that Hufford was limited to its unique facts by State v. Mahon, 97 Conn. App. 503, 905 A.2d 678, cert. denied, 280 Conn. 930, 909 A.2d 958 (2006), and, therefore, is inapplicable to the present case. This court, in Mahon, stated: ‘‘Hufford did not create a per se rule that the act of removing a victim’s clothing to engage in sexual intercourse always is insufficient evidence of force. Rather, Hufford simply stands for the proposition that if a complainant is already under medical restraint, the act of unzipping her pants and opening her blouse requires no force.’’ Id., 511. Although we agree with the state that the factual scenario in the present case is distinguishable from that in Hufford, the court’s holding in Hufford still controls: mere touching, in the absence of violence,15 physical coercion, or use of superior physical strength, is insufficient to prove that the defendant used force to compel the sexual intercourse.
In the present case, like in Hufford, the defendant had no need to exert force to compel the sexual intercourse. N testified that she complied with the defendant’s requests that she come into his room, lie on the bed, move closer to him, and lie on his chest. She testified further that she stopped the intercourse by moving away from him, getting off the bed, and leaving the room. There was no testimony that the defendant exerted force to make her come into his room and lie on the bed with him, or to try to keep her on the bed. It was not necessary, therefore, that the defendant use physical coercion or his superior physical strength in order to sexually assault N. We do not highlight these facts to focus on the adequacy of N’s resistance, as we recognize that is not the focus in a sexual assault case. See State v. Kulmac, 230 Conn. 43, 75, 644 A.2d 887 (1994). This evidence, however, illustrates the defendant’s lack of need to exert force in order to compel the sexual intercourse.
The state further argues that our decision in State v. Mahon, supra, 97 Conn. App. 503, controls the outcome of the present case. We disagree. The defendant in Mahon was convicted of sexual assault in the first degree, sexual assault in the first degree as an accessory, and conspiracy to commit sexual assault in the first degree. Id., 508. In that case, the defendant and another man, Oraine Duncan, drove the victim to a
In affirming his convictions, the court in Mahon opined: ‘‘[T]he jury reasonably could have concluded that the defendant’s act of removing her underpants, to assist his companion in sexually assaulting her, constituted force. Thus, as this claim relates to the defendant’s conviction of conspiracy to commit sexual assault in the first degree and sexual assault in the first degree as an accessory, the jury reasonably could have found that his forcible removal of [the victim’s] underpants while she was under assault from Duncan met the force requirement of the statute.’’ (Emphasis added.) Id., 511–12. In contrast, though, the court further opined: ‘‘The jury also reasonably could have inferred that the defendant’s act of forcibly removing [the victim’s] underpants, to assist Duncan in sexually assaulting [her], constituted an implied threat that he would use force to compel her to engage in sexual intercourse with him and that such implied threat was intended to and did in fact compel [the victim] to submit to sexual intercourse with the defendant.’’ (Emphasis added.) Id., 513–14. This distinction by the court between when the defendant’s act of pulling down the victim’s underwear constituted actual force and when it constituted the threat of force is instructive of our analysis in the present case.
The state argues in the present case that, under Mahon, ‘‘the jury reasonably could have concluded that the defendant used his superior strength to move the complainant’s underwear to allow the compelled intercourse to occur.’’ We find the state’s reliance on Mahon to be misplaced for two reasons.
First, the action contemplated in Mahon was the defendant’s forcible removal of the victim’s underpants. There is no evidence in the present case that the defendant forcibly removed N’s underwear. N testified that the defendant ‘‘put his hand inside [her] pants’’ and then ‘‘used his finger to penetrate [her] vagina.’’ The state is asking us to extend the holding in Mahon to mean that any incidental underwear movement that may have occurred when the defendant put his hand inside N’s underwear constitutes force. In our view, however, there is a significant difference between forcibly removing a victim’s underwear and the incidental underwear movement that is required to commit the penetration of the victim’s vagina. Therefore, we decline to extend Mahon to include the facts of this case.
Second, our decision in Mahon distinguished between when the defendant’s forcible removal of the victim’s underwear constituted actual use of force and when it constituted a threat to use force. See id., 511–14. Under Mahon, a defendant’s action of forcibly removing the victim’s underwear can be used to prove
The state further relies on State v. Ferdinand R., 132 Conn. App. 594, 33 A.3d 793 (2011), aff’d, 310 Conn. 686, 82 A.3d 599 (2013), for the proposition that the ‘‘use of force’’ element of
The defendant in Ferdinand R. was convicted of sexual assault in a spousal relationship in violation of
Our interpretation of Ferdinand R. aligns with earlier jurisprudence on this question. Our Supreme Court, in State v. Petitpas, 299 Conn. 99, 6 A.3d 1159 (2010), considered similar actions by a defendant convicted of sexual assault in the first degree. The jury in Petitpas had before it evidence that the defendant spread the victim’s legs apart in order to engage in oral sex on the victim and continued to pull her legs open when she tried to close them before lying on top of the victim and engaging in vaginal intercourse with her. Id., 105–106. In affirming the conviction, the court opined: ‘‘[T]he jury reasonably could have concluded
In the present case, the jury had no evidence before it that the defendant used any force whatsoever to separate N’s legs in order to effectuate the sexual intercourse. Additionally, even if we were to infer that the defendant did use the minimum force necessary to separate N’s legs, under our interpretation of Ferdinand R. and Petitpas, there was no additional or cumulative use of force sufficient to bring the facts of the present case within those holdings. Unlike Ferdinand R. and Petitpas, there is no evidence that the defendant here engaged in other forceful behavior, such as picking the victim up and carrying her, pulling the victim’s legs open when she tried to shut them, or lying on top of her, in order to compel the sexual intercourse. In fact, N testified that the defendant only ever used one hand to touch her, and the other he used to masturbate. Therefore, we do not agree with the state that Ferdinand R. controls our analysis here.
The state further argues that, on the basis of our Supreme Court’s ruling in State v. DePastino, 228 Conn. 552, 638 A.2d 578 (1994), ‘‘the jury reasonably could have concluded that the child complainant did not want to participate in the sexual intercourse imposed on her by her physically stronger father, and that the defendant used his superior strength to compel her to engage in sexual intercourse.’’ We do not agree. The defendant in DePastino was convicted of sexual assault in the first degree on the basis of allegations that he inserted his penis into his eighteen month old daughter’s vagina. State v. DePastino, supra, 569–70. In finding that the defendant’s actions constituted use of superior physical strength, and, therefore, use of force, the court stated: ‘‘Considering the relative size difference between the defendant and his eighteen month old daughter, the injuries to her vaginal area, the fact that she was crying during the assault and the testimony of the physician that the assault would have been very painful to the child, the jury from the evidence reasonably could have concluded beyond a reasonable doubt that the defendant compelled the younger child to engage in sexual intercourse by using superior physical strength.’’ Id., 571.
In the present case, unlike in DePastino, the jury had before it no evidence that N suffered any injuries to her vaginal area or that she was crying or experienced pain during the assault, and there was no testimony from a medical expert that the digital penetration that occurred here would have been painful for N. Therefore, we do not agree that the court’s decision in DePastino necessitates a finding here that the defendant used superior physical strength against N.
Lastly, the state argues that the defendant’s use of force to compel the sexual intercourse can be proven by the fact that the defendant, an adult male, was stronger than N, a ten year old girl, and that N was
A review of additional jurisprudence on this question supports our conclusion that the defendant’s actions did not constitute use of actual force to compel N to engage in sexual intercourse. In State v. Gagnon, 18 Conn. App. 694, 699, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989), we concluded that the evidence admitted below was sufficient for the jury to reasonably conclude that the defendant used physical coercion, and, therefore, actual force, for purposes of a conviction of sexual assault in the third degree.20 In Gagnon, the defendant impersonated a police officer to pull over the victim’s car, and, while she was pulled over on the side of the road, the defendant reached inside of her car and fondled her breasts. Id., 696. This court reasoned that it was significant that the defendant had illegally rendered the victim immobile, unlike in Hufford, and concluded that ‘‘the defendant’s conduct constituted physical coercion. By using a subterfuge of being a police officer, the defendant caused the victim to stop her vehicle. Such coercion was intended to and did in fact place the victim in a position wherein she was compelled to submit to sexual contact by the defendant.’’ Id., 699.
In the present case, unlike in Gagnon, the jury had before it no evidence that the defendant used impersonation or subterfuge,
On the basis of this review, we decline to extend the ordinary meaning of ‘‘use of force’’ to fit this particular case. It was the state’s burden to prove, beyond a reasonable doubt, every element of sexual assault in the first degree as charged in the amended information, including that the defendant used actual force in compelling N to engage in sexual intercourse. Even when viewed in the light most favorable to the state, the record discloses no evidence upon which the jury could reasonably have concluded as such. Accordingly, we hold that the state’s evidence was insufficient to convict the defendant of sexual assault in the first degree in violation of
The judgment is reversed with respect to the defendant’s conviction of sexual assault in the first degree and the case is remanded to the trial court with direction to render judgment of acquittal on that charge only and to resentence the defendant on the remaining charges. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
This court in Mahon also cited to State v. Chapman, 229 Conn. 529, 643 A.2d 1213 (1994). In Chapman, the information alleged only that the defendant compelled the victim to engage in sexual intercourse by the use of force. Id., 537. The court, however, instructed the jury that it could convict the defendant of sexual assault in the first degree if it found that he compelled the sexual intercourse by the use of force or the threat of use of force. Id. Our Supreme Court held that that was improper. Id.