State v. Kirk R.

v. KIRK R.1 STATE OF CONNECTICUT (SC 16940) Borden, Norcott, Palmer, Zarella, Vertefeuille and Js. spirit 54-86e, accordance with the of General Statutes as amended 03-202, 15, policy protecting Public Acts No. and this court’s privacy matters, interests of victims in sexual abuse we will not use the opinion. defendant’s full name or the names of the victims in this officially released 19, 2004 Argued October March 11 with defender, Dakers, D. special public Donald intern, for Cyrulnik, was Jason law student whom appellant (defendant). state’s Fawcett, W. supervisory assistant

Frederick were Jonathan C. brief, whom, with on attorney, III, Stephen Sedensky J. Benedict, attorney, state’s appellee (state). for the attorney, assistant state’s senior Opinion our appeals, following J. The defendant BORDEN, Appel- certification,2 judgment from of grant of convic- judgment trial court’s affirming late Court two counts of sexual jury trial, a of rendered after tion, Stat- of General first in violation degree assault in the 2 appeal, petition limited granted for certification the defendant’s We properly Appellate following determine that “Did the Court issue: provides (b), provisions which Statutes 53a-70 of General upon years imprisonment conviction of sexual sentence of ten years age, was not a is under ten first if the victim assault in the jury finding that the victims were so that a enhancement statute R., v. Kirk required?” Conn. was not under ten 817 A.2d two counts (a) (2),3 1997) § (Rev.

utes Statutes of General in violation injury to a child risk of claims The defendant 53-21 1997) (2).4 (Rev. 53a- improperly concluded Court Appellate sen- mandatory minimum for a provides (b), is less if the victim imprisonment ten tence of by the require finding did not age, than court, finding to a opposed jury, as age.5 less than ten were fact the victims whether the issue of the defendant that with agree We have years of should less than ten victims were judgment jury. We affirm submitted to been conclude because we Court, however, Appellate present in finding of such a the absence doubt. beyond a reasonable was harmless case counts with two R., charged Kirk was defendant, The two counts in first and degree assault of sexual 3 guilty provides: “(a) person (Rev. 1997) A is to 53a-70 General Statutes I compels person (1) degree another first when such of sexual assault in the by against such person engage use force in sexual intercourse to by against person person, such or the threat of use of force or a third other person reasonably person person against causes such a third other or engages injury person person, (2) in physical such or a third or to fear person person is under and such other intercourse with another sexual years such two older than and the actor is more than thirteen provided degree person, (3) sexual assault in the second or commits by two or commission of such offense is aided section 53a-71 and actually persons present. more other felony “(b) B for which one in the first is a class Sexual assault by imposed may suspended year not be or reduced of the sentence age, or, for which if of the offense is under ten court the victim by may suspended imposed or reduced of the sentence not be ten the court.” was convicted occurred the conduct for which the defendant Because July, 1997, September, we to the revision of 53a- refer

between as it existed at that time. 70 4 1997) (Rev. are Statutes 53-21 The convictions under General appeal. not relevant to this 5 clarity, opinion, later in this this claim For the sake of and as we discuss improperly legally equivalent omitted an to a claim that the trial court Velasco, jury. v. See State the offense in its instructions to element of 210, 232, (2000). A.2d 253 Conn. a child in connection with certain injury of risk of Z and F. stepdaughters, his minor involving incidents all charges defendant guilty The found the of conviction in accor judgment the trial court rendered on 53a- court, relying with the verdict. The trial dance years of the defendant’s fifteen imposed (b), as a year sentence of confinement appealed Appellate to the sentence.6 The defendant that the trial court Court, among things, other claiming, year mandatory the ten mini imposed should not have without first submit mum sentence under § jury. question ages of the victims’ ting Kirk R., App. 376, 379, 812 A.2d 113 74 Conn. trial Appellate judgment Court affirmed the of the The of whether the vic court, concluding question an element were less than ten was not tims merely properly factor crime, but Id., the trial court. 386. This certified determined appeal followed. history procedural facts and are rele- following The information on which the defen- appeal.

vant to this other alleged, among things, dant was charged, period approximately time of following: “[D]uring September, 1998 . . . July, through approximately 1997 in intercourse with engaged sexual [the defendant] twenty years to a term of trial court sentenced the defendant “[T]he by thirty-five years years, incarceration, suspended after fifteen followed probation count, alleged of General Statutes on the first which violations thirty-five years (2), years suspended (Rev. 1997) (a) § with to 53a-70 count, injury probation alleged risk of to a child in on the second which twenty years (Rev. 1997) (2), § violation of General Statutes to 53-21 sus years by thirty-five years probation pended on count after fifteen followed years three, (a) (2), suspended alleged § which a violation of 53a-70 and ten years count, thirty-five probation alleged risk of with on the fourth injury (2). a in of 53-21 The sentences on the first and to child violation concurrent, and the sentences on counts third counts were ordered to be to be consecutive to each other and to the two and four were ordered R., App. 376, on counts one and two.” State v. Kirk 74 Conn. sentences n.2, 812 A.2d 113 was under thir- person other and such person another 53a-70 (a) in violation of years of age, teen (13) the trial court jury, . . In its instructions . .” first of sexual assault person “A is guilty stated: in sexual intercourse person engages when such under person is person and such other with another more than two is and the actor thirteen sets three up statute person. than such The older beyond a reason- established which must be elements . . . guilty. justify in order to verdict able doubt that charged of the offense The second element was under person with a sexual intercourse was [who] thir- is, yet had reached her thirteen. That as she birthday at of the sexual intercourse. teenth the time prove . the state requirement . . There is no or without by was done force even consent intercourse requirements . The are person. only other . . intercourse with engaged that the accused sexual person who was under thirteen the defen- another person.” dant was more than two older than guilty charged. The found the defendant court, at the trial Thereafter, sentencing hearing, required impose manda acknowledging that it two tory minimum sentence of ten for the counts of sexual assault in the first sentenced degree, beyond period to a of incarceration that man defendant period.7 minimum See 6 of this datory opinion. footnote appealed claim Appellate defendant Court other court committed ing, among things, trial mandatoiy plain year a ten imposing error submitting sentence under without v. Kirk R., question ages jury.8 of the victims’ application acknowledged of the ten The defendant’s counsel also requested year mandatory defendant, minimum sentence to the that impose any period beyond mandatory period. court incarceration 8 properly pre was not Because the defendant conceded his claim sought prevail trial, magnitude, was he served at not of constitutional plain R., supra, App. v. Kirk Conn. 379-80. under error dod rine. State 74 504

supra, App. 74 Conn. on Harris v. primarily 379. Relying United States, 536 U.S. 122 S. Ct. 153 L. Ed. 2d Appellate (2002), that, Court reasoned because does not potential § increase the maximum sentence for a conviction of sexual assault degree, specifies first but the minimum sentence instances which the victim is less than ten of age, question of whether the victims were less than did not constitute a “sentencing enhancement,” ordinarily must be submitted to State v. Kirk R., supra, jury. Instead, Appel- 385. late Court concluded that the issue of whether the vic- tims were less than ten of age constituted a factor,” “sentencing and, therefore, the trial court did plain by not commit error to submit that failing issue jury.9 Id., 386. Appellate Accordingly, Court affirmed the trial court’s judgment of conviction. Id., 391.

The defendant claims that the Appellate Court improperly concluded that 53a-70 does not (b), require § a finding that the victim was less than ten Specifically, that, defendant contends Velasco, under State v. 210, 218, Conn. 751 A.2d 800 irrespective (2000),10 of whether 53a-70 (b) constitutes Appellate that, although legislative Court also noted “the debate any legislative . . . not reveal evident intent” behind the [did] sentencing provision; (internal quotation omitted) marks State v. R., supra, App. 384; Kirk 74 Conn. the fact that “the added the aggravating sentencing portion statute, separated factor to the from suggests implicit the substantive elements of the crime . . . an intent to make the of the victim a factor.” Id. Velasco, supra, 217-18, In State v. 253 Conn. we determined that it was legislature’s jury’s not the during intent to eliminate the role fact finder application 53-202k, of General Statutes which authorizes a nonsus pendable year five addition to the sentence of a defendant who is convicted underlying A, felony Accordingly, of an class B or C with a firearm. we held requires jury, court, that 53-202k and not the trial to determine whether A, felony a defendant uses a firearm in the commission of a B class or C purposes Id., noted, however, of the enhancement. 218. We also the trial court’s failure to allow the to make such factual determinations analysis. Id., 232-33; Davis, amenable to harmless error see also

505 the factor, a sentencing or enhancement sentencing a and that intent, legislative on inquiry centers proper the reveal statutory of construction tools basic whether jury to determine for the intended legislature was (a) a under 53a-70 § assault the victim sexual 11 the on argues, The state age. ten less than make did intend to not hand, legislature other ten victim less than the question whether the did the nor (a), 53a-70 § an element length the of incarceration expand “to intend legislature con Thus, the state by the statute.” proscribed . . . 53a- correctly construed Appellate § the Court tends, by the properly decided a factor 70 (b) any alternative, the state argues court. the trial case harmless present constituted impropriety the not chal because of the victims were ages error “supported by overwhelming and were lenged evidence.” legislature defendant agree

We with the court, jury, intended for the and not assault whether the victim of a sexual to determine Although 782, (2001) (discussing Velasco). 793-94, A.2d 559 255 Conn. 777 necessarily penalty (b) § for a violation of 53a- § 53a-70 does enhance imposes sentence; (a), 11 but rather see footnote 70 present opinion; informs our of the of this Velasco nonetheless resolution case. that, because 53a-70 establishes a manda The defendant concedes penalty tory for a minimum sentence and does not increase the maximum (a), under would not have been constitu conviction question tionally prohibited removing the victim was of whether from States, supra, jury. See Harris v. United less than from 79, Pennsylvania, (“Read together, 477 U.S. 536 U.S. 567 McMillan [v. Apprendi Jersey, 2411, (1986)] L. Ed. 530 U.S. Ct. 2d 67 New S. [v. (2000)] setting Ct. 2d 435 mean that those facts 120 S. 147 L. Ed. judicial impose it, sentence, power are the outer limits of and of the analysis. purposes of the constitutional the elements crime for the jury’s political range verdict, however, Within the authorized rely may judicial upon judicial expertise— system channel discretion—and by requiring judges terms make certain to serve minimum after defendants findings.”). factual under 53a-70 (a) was less than ten and, of age, consequently, the trial court improperly imposed year mandatory minimum sentence under § without having jury first instructed the that it must find that the victims were less than ten of age. We with agree state, however, the trial court’s failure to do so in the present beyond case was harmless a reasonable doubt.

As an matter, initial we note that the defendant did object to the trial court’s failure to instruct jury that it must find that the victims in present case were less than ten of age. result, As a the defen- dant seeks prevail to under either v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 or (1989),12 plain error doctrine contained Practice Book 60-5.13 Essentially, the defendant claims that he deprived 12 prevail pre defendant can on a claim of “[A] constitutional error not only following (1) served at trial if all of the conditions are met: the record is adequate alleged error; (2) to review the claim of the claim is of constitutional magnitude alleging right; (3) alleged the violation of a fundamental clearly clearly deprived constitutional violation exists and the defendant of trial; subject analysis, a fair if to harmless error the state has failed alleged beyond to demonstrate harmlessness of the constitutional violation Golding, supra, a reasonable doubt.” State v. 213 Conn. 239-40. “The first steps Golding analysis reviewability claim, two in the address the of the steps while the last two involve the merits of the claim. ... In the absence any Golding conditions, one of the four the defendant’s claim will fail.” (Citation omitted; quotation omitted.) Andresen, internal marks State v. 256 313, 325, 773 appellate free, Conn. therefore, A.2d 328 “The tribunal is respond by focusing to defendant’s claim on whichever condition is particular Golding, supra, most relevant in the circumstances.” State v. 240. 13 provides part: may Practice Book 60-5 in relevant “The court reverse modify or the decision of the trial if court it determines that the factual findings clearly pleadings are erroneous view of the evidence and in the record, whole or that the decision is otherwise erroneous in law. distinctly “The court shall not be bound to consider a claim unless it was subsequent may raised at the trial or arose to the trial. The court justice plain brought interests of notice error not to the attention of the trial . . . court. responsibility appellant provide adequate “It is the record provided for review as in Section 61-10.”

507 regarding of a determination an element of 53a- It is well settled that a criminal defendant (a). constitutionally entitled “to a determination that every is guilty element of the crime with which [he] beyond he is a reasonable doubt.” charged, (Internal quotation Apprendi marks v. New omitted.) Jersey, 466, 477, 2348, U.S. 120 S. Ct. 147 L. Ed. 2d 435 (2000); Winship, 358, 364, see In re 397 U.S. 90 S. Ct. L. Ed. 2d 368 (1970) (“[d]ue [p]ocess protects [c]lause the accused against except upon proof conviction beyond every a reasonable doubt necessary fact constitute the crime with which he is Dun- charged”); can v. Louisiana, 145, 149, 391 U.S. 88 S. Ct. L. Ed. 2d 491 (1968) (sixth by amendment to trial right jury extended to process states due clause of through fourteenth amendment); see also Sullivan v. Louisi- ana, 508 U.S. 275, 277-78, 2078, 113 S. Ct. 124 L. Ed. 2d 182 (1993) (explaining Winship In re and Duncan). because the Accordingly, defendant’s claim is one of constitutional and because magnitude, there is no dis- pute that the adequate review, record is for the defen- properly may dant prevail Golding.14 seek to under 14Although prevail Golding the defendant did not seek to under Appellate Court, the court nonetheless stated that “his claim is not one of magnitude alleging right constitutional a violation of a constitutional . . . satisfy prong Golding.” (Citation omitted; and therefore fails to the second quotation omitted.) R., supra, App. internal marks State v. Kirk 74 Conn. foregoing discussion, disagree 379-80. On the basis of the we with that Denby, 477, 483-84, determination. See v. also State 235 Conn. 668 A.2d 682 Golding (applying to claim that trial court failed to instruct on crime). element of disagree Appellate We also with the Court’s determination that the defen plain dant’s claim was reviewable “under the error doctrine as set forth in Velasco, [supra, R., supra, v. State 253 Conn. 218-19 State v. Kirk n.9[.” App. plain doctrine, Conn. 380. error which is now codified at “[T]he Practice reviewability. Book 60-5 ... ... is not a rale of It is a rule of reversibil ity. is, rectify That it is a doctrine that this court invokes in order to a trial ruling that, although properly preserved court either not or never raised at court, requires judg all in the trial nonetheless reversal the trial court’s ment, policy.” (Emphasis added; quotation for reasons of internal marks omitted.) Cobb, 285, n.34, (1999), v. 251 Conn. 743 A.2d 1 cert. denied, 106, addition, (2000). 531 U.S. 121 S. Ct. L. 148 Ed. 2d 64 conviction, any aprior fact of fact that “Other than the beyond prescribed for a crime penalty increases the and statutory jury, must be submitted maximum beyond Apprendi reasonable doubt.” v. New proved statutory maximum Jersey, 530 U.S. 490. supra, “[T]he is the maximum sentence Apprendi purposes may solely the basis impose on judge facts in admitted verdict or defen- reflected dant. words, statutory ... relevant maxi- In other may impose a judge mum is not the maximum sentence may facts, additional but the maximum he after finding any findings.” additional impose (Citations without quotation marks omitted; original; internal emphasis 296, 303-304, 542 U.S. omitted.) Blakely Washington, A Ct. 159 L. Ed. 2d 403 trial court (2004).15 124 S. extraordinary truly plain error “is reserved for situations where doctrine it affects the the existence of the error is so obvious that fairness judicial proceedings. integrity public . Plain confidence in the . . sparingly. party ... A cannot error is a that should be invoked doctrine plain grant prevail it has that the failure to under error unless demonstrated injustice.” (Citations omitted; quotation will result manifest internal relief Toccaline, 542, 552-53, omitted.) A.2d 450 marks State v. 258 Conn. very explained Implicit demanding notion, is the in this standard previously, plain that invocation of the error doctrine reserved for occa- requiring judgment Although under review. we sions the reversal of plain Velasco, supra, n.9, the doctrine in v. 218-19 we invoked error judgment concluding after that also reversed the trial court’s of conviction beyond impropriety a the instructional was not harmless reasonable doubt. impropriety present case, however, Id., the 236. instructional in beyond Thus, the claim harmless a reasonable doubt. because defendant’s judgment, present does not a reversal of the trial court’s case mandate plain appropriate in invoke the doctrine. is not an occasion which to error present case, Supreme argument After oral in the the United States Washington, Blakely supra, 542 U.S. it held Court decided wherein Apprendi rule, unconstitutional, Washington’s sentencing in violation of the “ ” impose ‘exceptional’ guideline permitted a sen scheme that court to ” “ justify compelling it reasons’ to such a tence if finds ‘substantial departure. Blakely, pleaded guilty kidnapping the defendant to in the plea degree and, pursuant agreement, his the state second to recommended forty-nine fifty-three sentencing range of a sentence within the standard to ninety months, Id., to months. 300. The trial court sentenced the defendant “ however, with that the had acted ‘deliberate because it found defendant “ ” ” cruelty,’ cruelty.’ finding Id. ‘deliberate which increased Because mandatory is free to determine a fact that a triggers sentence, however, minimum because such a “finding merely require impose specific to ‘a sen judge [s] by ” jury’s finding tence within the authorized range Harris v. United that the defendant guilty.’ [was] States, supra, Pennsyl see McMillan v. 563-64; 536 U.S. vania, 477 U.S. S. Ct. 91 L. Ed. 2d 79, 88, 106 provision sentencing minimum (1986) (mandatory “operates solely to limit the court’s discre sentencing already selecting penalty range tion in a within the dispute it”). available to The defendant does not mandatory a minimum creates Apprendi increase, and does not in an provision sense, statutorily penalty underlying authorized is undis opinion. Thus, crime. See footnote of this it puted constitutionally pro was not court, hibited from permitting opposed to a to a jury, determine whether victim in sexual assault violation of 53a-70 was less than (a) of age. prevents Nevertheless, there is our nothing legis- lature from requiring finding make a order impose mandatory a trial court to oblige sentence—indeed it has done so a similar context. See, e.g., 53a-59a, 53a-60b, General Statutes 53a-60c §§ (mandatory and 53a-61a minimum sentence for assault if sixty years victim was at least of age). Accordingly, Supreme the United States Court, court, as well as this beyond range, stipulated the defendant’s sentence the standard was neither by jury, the defendant nor found the defendant’s sentence violated right, Id., foregoing his sixth amendment to a trial. 303-304. As the clear, Blakely analysis present discussion makes does not alter our present finding triggers case because: case involves a factual imposition prescribed of a minimum sentence within the statutory range penalties court; of available to the see footnote opinion; conclude, 17 of this and we nonetheless on the basis of the history legislative (a), findings of § 53a-70 that the should have made the present that the victims in the case were less than ten or whether step determining the first expressed has an element constitutes statutory provision particular a presents factor merely a or of an offense Harris v. interpretation.16 See statutory question a of Velasco, v. States, supra, 536 552; U.S. United is a “Statutory construction 220-21. Conn. supra, 253 plenary. our review is and, therefore, question of law and objective is to ascertain . . . fundamental [0]ur . . . legislature. intent of the apparent to the effect give words intent, we look to the to discern seeking history and circum- itself, legislative to the of the statute enactment, legislative its surrounding stances and to its relation- implement, it was policy designed principles common law and ship existing legislation . . . subject matter. general the same governing statutory construction tenets of “Several additional . . . penal statute. interpretation of our guide [C]rim- broadly than their be read more are not to inal statutes ordinarily are requires ambiguities and plainly language . [Ujnless . . in favor of the defendant. to be resolved would frustrate an evident interpretation contrary by the are intent, governed criminal statutes legislative strictly are that such statutes principle fundamental recently imposed aware, course, We are of 03-154, 1, interpret statutes. Number which this court is to method shall, provides: meaning a statute in the first “The the 2003 Public Acts relationship instance, text of the itself and its ascertained from the statute be examining considering If, and such relation such text statutes. after other yield plain unambiguous ship, meaning and does not such text is meaning results, extratextual evidence of or unworkable absurd (b) The text of 53a-70 does not address be considered.” statute shall not whether the victim of a trial court is to determine or the whether addition, party age. In neither contends is less than ten sexual assault parties statutory plain unambiguous, and both at issue is text support history legislative of their §of on the have relied interpretation govern positions. Accordingly, our Public Act 03-154 does analysis may therefore, properly and, consider sources (b), our §of 53a-70 (b). meaning § 53a-70 See Ames Commissioner in addition to the text of Vehicles, A.2d 1250 Conn. Motor inter- omitted; (Citations the state.” against

construed supra, Velasco, v. State omitted.) marks quotation nal 219-20. 253 Conn. of the stat analysis language “the our with

We begin factor to be important the most that is ute, because 537, 577, 262 Conn. Courchesne, considered.” suggests of 53a-70 The structure A.2d 562 predicate the factual not intend did sentence, that the mandatory minimum year of the ten an element to be years age, less than victim was of the acts At the time assault. sexual degree of first (Rev. Statutes case, General present alleged person “A part: in relevant provided (a) 53a-70 1997) § when such degree in the first of sexual assault is guilty with intercourse sexual engages ... person (2) under thirteen person other and such person another older years than two actor is more and the (Rev. . . .” General Statutes person . than such in the first assault provided: “Sexual 53a-70 1997) § year one felony17 B for which is a class degree suspended or reduced may not be imposed sentence under ten of the offense is or, if the victim by the court years of the sentence for which ten age, by the or reduced may suspended not be imposed forth sets Structurally speaking, (a) (2) court.” assault in the first of sexual the elements of the offense in sexual engages the actor: namely, (1) degree, person less than thirteen intercourse; with (2) years older more than two the actor is age; (3) the victim is an element Thus, the than the victim. but degree, in the first the offense of sexual assault twenty years imprisonment. felony penalty of A B has a maximum class any provides part: 53a-35a, in relevant “For See General Statutes imprisonment July felony the sentence of committed on or after fixed the court as and the term shall be shall be a definite sentence manslaughter felony the first B other than follows ... class year 53a-55a, less than one a term not with a firearm under section twenty years . . . .” nor more than explicitly, required inasmuch as the state is only, at least thirteen than prove that the victim was less of year mandatory minimum

Indeed, the fact that the ten of General Statutes provision (Rev. 1997) sentence other (b), 53a-70 is contained in subsection while the § are in sub- statutory elements of that section contained did not intend section (a), suggests mandatory that minimum predicate that the factual the victim was less than ten sentence, namely, an element of sexual assault in years of constitute age, under That (a). suggestion the first 53a-70 § by the fact that subdivision of 53a- strengthened § under thirteen expressly 70 refers to victims (a) The debate on the amendment creat- legislative of mandatory minimum sentence under 53a-70 ing § however, the (b) reflects, understanding legislators amendment, enacted No. through on both sides of the of the 1995 Public Acts 95-142, 13, (P.A. 95-142), the victim under question the factual of whether was ten at the time of the offense is to be by jury.18 determined year mandatory Appellate noted,

As the Court the ten provision proposed minimum was first primarily an amendment to Senate Bill No. sex offender law. registration established Connecticut’s 18 necessarily precedential value of this case is limited virtue of history legislative uniquely pertinent (b). that is to 53a-70 Our review any provision must be undertaken other primary emphasis particular language, structure, legislative with on the history provision, genealogy (b). court, parties present arguments regarding In their briefs to this did not Instead, interpretation legislative surrounding P.A. their debate 95-142. way submitted, by facsimile, transcript the defendant a of that debate to day present case, arguments this court oral the state before merely Appellate interpretation referenced the Court’s of that debate in its R., opinion; supra, brief to this court. See footnote 9 of this State Kirk App. n.12, 74 Conn. 383 384. n.12. The v. Kirk App. R., supra, Conn. Andrew M. by Representative was offered amendment in which publicized a case response highly Norton Id. raped. Representative month old child was nine was purpose of the amendment stated that the Norton raping on convicted of person penalty to “increase the is under seriously someone who physically assaulting or p. Sess., Pt. 2667. Proc., old.” 38 H.R. amendment, Representative opposition of the bill language noted that the Michael P. Lawlor make did not it “flawed” the amendment because the victim was under the offense that element Lawlor also Representative 2670. Id., p. of ten. correctly you it and write it change stated: “So could way not, but at I element, to make it an it is least it.” Id. read response Representative Lawlor’s criticism of Representative Dale noted amendment, Radcliffe impose the amendment is similar to statutes that a

mandatory if the victim of an assault minimum sentence sixty years Id., p. 2671; see, least of age.19 e.g., was at suspendable 53a-59a General Statutes not (five § in 53a-60b degree); § for assault first General Statutes suspendable for in second (two not assault (three General Statutes 53a-60c not degree); § 19Representative disagreed, noting that, unlike the amendment at Lawlor sixty years separate issue, the assault of a victim who is at least is a p. Representative Proc., supra, connection, H.R. offense. 38 2673. In this separate statutes, “We two assault in the first Lawlor stated: have [§] felony, penalty. separate statute, degree, is Class B has its own There [sixty]. over In order an assault on a victim to have enhanced [§ 53a-59a] you separate penalty, have and this flawed amendment to have crime of, says penalty phase, person simply if at the has been convicted in says separate offense, just case, degree, it this assault—first without a penalty. happens ten, an if victim to be under there is enhanced You separate way. easily fix this. You could have a can’t do it that You could punished. This for which could be convicted and then section someone you acknowledge we in a few minutes could fix this and could flawed. I proper vote on a bill . . . .’’Id. suspendable for assault in second with firearm); General year Statutes 53a-61a (one suspendable for assault in third degree). Representative Radcliffe also stated: “And in problems terms of proof] [of trial, very easy prove it is victim. You simply introduce an official birth certificate or ask the mother or father or how guardian old the individual was at the time this particular heinous, particularly offensive crime was committed. they And wall be able to answer it and there will be information on the record to substantiate a conviction.” 38 H.R. Proc., supra, p. 2672.

In addition, Representative Robert M. Ward likened minimum sentencing provision con- tained in 53a-70 penalties enhanced con- tained the statute concerning while driving under the influence of liquor or intoxicating drugs. Id., p. 2674; see General Statutes 14-227a (g). Representative Ward “My stated: ... recollection is that an information charging offense for which there is an enhanced penalty spelled must be out and may require a two provision. count For example, our drunk driving law, you if are to get penalty the enhanced for operating under suspension, it is the same offense, but . . . there has to be notice to the defendant at prosecu- trial if the tion is seeking penalty the enhanced and it needs to be an parts information in two they and need to be advised of it at trial. It seems to me it very easy would be a prosecutor in say, you this case to are with charged rape in the first degree. facts following constitute that in violation of 53a-70 and in the second part, [§] we are alleging victim was under ten at age the time of the offense and we are therefore seeking penalty enhanced of a mandatory minimum years. of ten . . . age of the victim ... is a mat- [T]he proof ter of at trial and I believe the to the charge be, would if it jury case, were a would a reasonable person was under that person have understood the Proc., supra, pp. H.R. 2674-75. age?”20 intended indicates that the exchange This separate aggra- to as if it were a operate 53a-70 (b) § comments Representative Radcliffe’s vated offense. operate 53a-70 was intended to demonstrate § an assault on an similarly concerning to the statutes elderly 53a-59a, General Statutes 53a- person. §§ See separate statutes create 60b, 53a-60c and 53a-61a. Those sixty victim is at least offenses when the aggravated prove the required age and the state is age, separate aggravated of the victim as an element of that Representative Lawlor, offense.21 The comments of opposition amendment, support this conclusion. Indeed, Representative pur- Lawlor did not attack the pose minimum sentencing provision, namely, espe- to increase the minimum sentence for cially Rather, objected heinous sexual assaults. he solely on structural that the amend- grounds, arguing 20Despite Representative statement, require Ward’s 53a-70does not prove believed, person the state that the defendant or a reasonable would believed, age. Rather, § have that the victim was less than ten 53a- liability crime, required prove 70 creates a strict and the state is not knowledge Nevertheless, actor’s or intent as an element of the offense. Representative strongly suggest Ward’s comments that the issue of the jury. victim’s was intended to be submitted to the instance, provides part: “(a) For General Statutes 53a-59a relevant person guilty elderly person degree, A of assault of an . . . in the first person degree when such commits assault in the first under section 53a-59 (a) (2), (a) (3) (a) (5) or 53a-59 the victim of such assault sixty years has attained at least .... “(d) elderly person degree Assault of an . . . in the first is a class B felony any person guilty found under this section shall be sentenced imprisonment imposed may to a term of of which five of the sentence not, suspended be or reduced the court.” Thus, assaulting in order to obtain a conviction under 53a-59a for elderly person, prove necessary the state must first all of the elements obtain a conviction of assault in the first under General Statutes 53a-59; prove element, then it must an additional that the victim was at sixty years age. least validly accomplish written, would ment, as it sug- Lawlor solution, Representative aAs purpose. its to create be rewritten that the amendment gested less than when the victim is offense separate aggravated p. 2673; see Proc., supra, H.R. age. Lawl- Thus, Representative opinion. this footnote 19 of struc- that, notwithstanding remarks indicate or’s he understood amendment, irregularities tural nonetheless of the amendment proponents if were a operate as it 53a-70 intended for § offense. separate comments, analogized Ward’s

Representative while under driving available for penalties the enhanced must allege that the state influence, indicate than ten victim is less that the information strongly 2674-75. This Proc., supra, pp. 38 H.R. See to create a was not intended 53a-70 (b) suggests aggravated an element of the factor, but offense. and Ward dis- Radcliffe

Finally, Representatives both likely to occur at trial. that were scenarios cussed that the Radcliffe indicated Representative regard, this into victim’s birth certificate introduce the may state Ward 2672; Representative trial; id., p. at evidence referencing instruction potential proposed these remarks Id., p. Again, 2674. of the victim. prove need to state would that the suggest age during guilt was less than ten victim the sentenc- opposed during trial, phase phase. ing us persuade together comments taken

All of these not for jury, for the intended a victim of a sexual whether court, to determine years of was less than ten (a) assault under §

517 Accordingly, offense.22 alleged at the time age imposed improperly trial court first having without (b) under sentence in that the victims it must find jury that instructed were less than ten present case mind, in we now address principles With those instruct the court’s failure to that the trial state’s claim that the victims must have found jury that it years of constituted were less than ten present case improperly “A instruction harmless error.23 constitutes charge element from the omits an essential beyond if a court concludes reviewing harmless error was uncon- the omitted element doubt that a reasonable evidence, such supported by overwhelming tesled and same absent would have been the verdict 17, States, 1, 527 U.S. .... Neder v. United the error (Emphasis 114 L. Ed. 2d 35 (1999).” 119 S. Ct. v. marks State quotation omitted.) in internal original; State v. 232-33; 253 Conn. see also Velasco, supra, A.2d 559 782, 794, (2001); 255 Conn. 772 Davis, A.2d 995 737-38, Conn. 759 Montgomery, beyond a determine, Thus, our sole task is in that the victims doubt, whether the fact reasonable were less than ten present case evidence. supported by overwhelming uncontested the defen- was, and, accordingly, that it We conclude Golding. prong fails under the fourth dant’s claim opinion. 12 of this See footnote necessary to additional facts are following present case occurred resolve this issue. The trial argues, nonetheless, that, legislature had the intended for The state offense, element of the then it could have created § 53a-70 to be an that, statutory separate on offense. The short answer to this contention statute, persuaded surrounding legislative we are debate the basis of very result, despite accomplish functional that 1he intended to irregularity § 53a-70. the structural in his brief The defendant has not addressed the issue of harmlessness to this court. November, 2000, alleged and the information was convicted allegedly

acts for which the defendant September, 1998. Col- July, 1997, occurred between employed by social worker Bush, investigative leen department families, of children and testified that was bom on victims, the elder of the two October Z, victims, and that of the two 26, 1990, F, younger 5,1993. that, was bom on December Bush also testified years Z ten of and F trial, at the time of the was years of age. was six both direct examination and cross-examina-

During that, trial, Z testified at the time of the she was tion, F testified years examination, that, of On direct age. years of trial, age, at the time of the she was six years age.24 cross-examination, that Z was eleven of On presently years was six of repeated age. F that she employed by a Yost, Bridgeport Anne social worker had interviewed the victims Hospital, testified that she hospital January 7, at the on 1999. to each Referring from that prepared visit, victim’s medical records for identification but did not introduce the state marked Z on exhibits, as full Yost testified that was bom October 5, and that F was bom on December 1993. 23, 1990,25 that, particular Yost also testified at the time of that years January, 1999, eight visit in Z and F were and five respectively. Massey, of Jean the victims’ foster age, in Janu- months, that, mother for several also testified years Z F and five of ary, 1999, eight age, and were Welsh, S. a respectively. Finally, Ralph psychologist in the affirmative victims, who examined the answered parties on the fact that F testified that Z The have not commented any presently eleven, opposed ten, age. event, was even presently age, if the believed F’s statement that Z was eleven information, Z still would have been on the basis of the dates contained alleged present less than ten at the time of the acts case. aloud, right? reading After Z’s date of birth Yost testified: “Is that I’m sorry. stamp blurry.” a little It’s kind of unclear .... The 1993, F bom asked if Z and were

when respectively. state sub- documentary evidence, the respect to

With state- recorded transcript into evidence mitted February 2, 1999, by Z on police made ment years of she eight Z stated that was wherein hospital records into evidence submitted defendant that, September 14, on which indicated victims, age, respec- F four Z and were seven and victims’ also listed the hospital These records tively. on October indicating that Z bom birth, dates 5, 1993. F was on December 1990, and that bom only were the exhibits hospital records The victims’ into evidence. the defendant submitted a careful and after foregoing, the basis of the On beyond a conclude, we record, review of entire that the victims doubt, that the fact reasonable was years sup- of age case were less than ten present and was con- ported by overwhelming evidence verdict, we jury’s by the defendant. Given tested less than the victims were that the found that know or only evidence, The testimonial years of age. thirteen of dates birth otherwise, that established the victims’ was F bom 1990, that Z was bom in indicated himself submitted docu- Indeed, the defendant in 1993. of the victims’ dates birth. mentary evidence that listed of that, at time addition, Z and F testified In respectively. they years ten and six trial, age, were testimony by Bush, Yost, All of this corroborated acts for which Massey and Welsh. Considering occurred was convicted allegedly the defendant July, 1998, simple arith- September, between from the date counting either backward metic, birth, indi- forward from the victims’ dates of trial, or years of age the victims less than ten cates that were had occurred. when the sexual assaults alleged In addition, several witnesses testified regarding ages of the victims in 1998 and all of whom indi- cated that the victims were less than years ten The defendant, furthermore, never contested the ages Rather, victims. the defendant’s sole defense was sexually he never assaulted the victims. Lastly, there was no evidence submitted on which it could have concluded that the victims were ten or older at the time of the acts alleged in the present case. it Although could be argued that the defen- may

dant not have contested the ages of the victims to thirteen the extent that their ages were less than we age, convinced, beyond are doubt, reasonable that the jury, had it been instructed to do so, would have found that the present victims in the case were less than ten of age. judgment Appellate Court is affirmed. opinion this NORCOTT, PALMER and VERTEFEU-

ILLE, Js., concurred.

ZARELLA, J., I concurring. concur in the result reached the majority. I write separately, however, I because do not agree majority with the that General Statutes (Rev. 1997) (b),1 provides for a mandatory minimum sentence of impris- onment when the victim is less than ten of age, requires a determination jury, the rather than the sentencing court, that the victim of a sexual assault was less than ten at the time the assault occurred. majority

The concedes that age is an element of the offense of sexual assault in the first degree under 53a- only 70 (a) (2) to the extent that the state required is prove jury that the victim was less than thirteen to the to opinion All references in this §to 53a-70 are to the 1997 revision. See majority opinion. footnote 3 of the that majority further concedes The did our legislature that suggests the statute

structure victim less than ten of a to make the age not intend majority Finally, of the offense. year's old an element States, 536 U.S. 545, 122 v. United that, Harris in years under thirteen of and the actor more than age is years two older than such . . . .” person Section 53a- requires thus that (a) proof the victim was under years thirteen of and offender than age the was more years two older than the victim. majority

The after concludes, analyzing language the is of of statute, the that “the the victim element age of of in the offense sexual assault the first but degree, only, explicitly, required at least inasmuch as the state is that the victim was less than thirteen prove to of in I age.” (Emphasis emphatically agree. I original.) believe, also however, majority, unlike the includ- that of ing age thirteen, ten, as an age strengthens element of offense of the argument state “under ten age” is a factor sentencing because once the state has to proved victim was less than thirteen defen- age dant guilty, proof is found no further of the victim’s necessary. age requisite The determination as to the victim by been made having jury, exposed offender is to a penalty twenty maximum years incarceration, and in the case of a less victim years old, mandatory than ten minimum sentence of incarceration. See General (Rev. Statutes 1997) and General Statutes 53a-35a majority

The next observes the fact that 53a- expressly (a) (2) refers victims under thirteen years of and the fact that the provision is contained in (b) sug- subsection gest did not intend for the factual predicate of the mandatory minimum sentence con- stitute an element of the I offense. could not more. agree portion provides statute relevant “Sexual part: assault the first is a felony year class B for which one the sentence imposed may suspended not be or reduced the court years ten

or, if the victim of the offense is under of age, imposed may for which years ten sentence suspended by be or reduced the court.” General Stat- 1997) utes 53a-70 (Rev. (b). sentencing range § felony for a B class under 53a-70 between one (a) § year years See twenty imprisonment. General Stat- utes Subsection 53a-70 (b) 53a-35a thus does by not alter the established sentencing range § 53a-35a requires (5), merely impose but the court to a manda- tory minimum sentence within if the range victim was less than I ten therefore submit that plain supports language subsection the view of a victim age less than ten old is a by factor to be sentencing determined court. See States, Harris v. United supra, (court 536 U.S. has purpose discretion to make factual finding impos- ing mandatory minimum sentence, long as as such sen- tence does not exceed statutory maximum). can

Moreover, there be no doubt that there is a clear division in the structure of the statute between the provisions substantive subsection (a), which describe the elements offense, and provisions of subsection describe (b), which the man- ner in which a sentence imposed. is to be Indeed, because (a) defines the offense as per- to a who taining victim is less than thirteen of age, it only seems any reasonable to assume that reference in subsection the exact (b) to of such a victim, insofar as the victim’s age affects the of a length sentence imposed prescribed within the of one to range twenty years, was intended to be a factor rather than element of the offense. Accord- ingly, the structure and the text of the statute strongly support the conclusion that the of a victim less than old is not an element of the offense that prove state must to the jury. . . . are to read statute written

“We constrained may clearly expressed legislation we not read into expressions in words which do not find its provisions, Hol omitted.) . marks Carmel quotation . . .” (Internal Partnership Bethlehem, Ltd. low Associates 139, 848 A.2d 451 when Furthermore, (2004). Conn. knows sentencing provisions, drafts it legislature the Jones, 324, 367, 234 Conn. to do so. State how for the If the had intended legislature A.2d 1199 the victim’s finding regarding to make a factual it mandatory sentencing purposes, minimum age the of such a victim an element age have made could separate statute pertaining or enacted a of 53a-70 (a) § of who are than ten the assault of victims less to who at least it in the case of victims are did age, disabled, are sixty years blind, of victims who age 53a- mentally or retarded. General Statutes §§ pregnant and 53a-61a (a), (a) (a). 53a-60b 53a-60c (a), 59a the when 53a-70 within Furthermore, considering § statutory scheme, statute of broader the context the 53a-59,2 be with General Statutes compared § should part: person provides “(a) A is § 53a-59 relevant General Statutes (1) degree to guilty when: With intent cause serious of assault in the first injury person, injury person physical or he causes to such to another such deadly weapon instrument; person by dangerous means of a or a to a third person seriously disfigure permanently, (2) with intent to another or permanently destroy, amputate organ his a member or of or disable or to person; body, injury person (3) or under he causes to such to a third or such recklessly evincing an indifference to human life he circumstances extreme person, and engages a risk of to in conduct which creates death another thereby physical injury person; (4) or with intent causes to another serious person by injury physical two to another and while aided to cause serious injury persons actually person present, he such to such more other causes or physical injury person; (5) to to another a third or with intent cause or to person by injury person person, means he such or to a third causes such to discharge of a firearm. of felony provided any “(b) B Assault first is a class ... (a) person guilty shall be sentenced to a term under subsection of found imposed may imprisonment not be which ten sentence person suspended or is a reduced court victim offense if age (Emphasis added.) . .” . . under pertains to the offense of assault in the first degree, provide because both statutes for a years imprisonment of ten if sentence victim than ten of age, is less but neither includes victim as an element of the offense. Compare General Statutes 53a-59 with General Statutes To (Rev. 1997) (b). require 53a-70 factual as to make a of the victim finding appears when (b), § 53a-70 there to be no similar requirement with respect would be (b), inconsistent with the well principle established statu tory interpretation always pre that “the sumed to have created a harmonious and consistent body of law .... statutory tenet of construc [T]his requires tion . . . to read statutes together [this court] they when relate subject to the same matter .... the Accordingly, determining of a meaning statute [i]n ... only provision we look not issue, at the at but also statutory broader scheme to the ensure coher ency of . . our construction. . Assembly General [T]he is always presumed to all know the existing statutes and the effect that its action or will non-action have upon any one of them.” (Citations omitted; internal quotation marks v. Hatt omitted.) Burlington Coat Fac 310, 819 A.2d 260 tory, 279, 263 Conn. (2003). Therefore, majority’s comparison §of 53a-70 with § 53a-59a is inappropriate can offer this guidance court little because, although pertains 53a-59a age-related § to an offense, it is structurally dissimilar to 53a-70. §

No other Connecticut case has addressed the issue presented appeal. in this In State v. 253 Conn. Velasco, 210, 751 A.2d 800 (2000), this court determined that the question of whether a defendant used a firearm in the of a felony, commission which penalty increases the felony beyond underlying statutory maximum under General Statutes 53-202k, must be submitted jury. Id., 214; Apprendi see also v. Jersey, New L. 2348, Ed. 2d 435 490, 120 S. Ct. 530 U.S. for a crime penalty fact that increases (2000) (“any statutory maximum must be beyond prescribed The factors jury” [emphasis added]). to a submitted Velasco, however, including persuaded this court practice submitting the “well established a sen- application fact that triggers the ultimate Velasco, supra, statute”; v. tence enhancement with other sentence of 53-202k 226; comparison and a the judge that limit the role of enhancement statutes present exist in the finder; id., 227-28; fact do not as the a enhance- is not sentence case because § the rea- useful to examine ment statute. It therefore States, supra, U.S. in Harris United soning Supreme Court considered the United States elements of a crime and between the the distinction criminal sentence in the influence a the factors that scheme. mandatory a minimum context of Harris, petitioner carrying was convicted trafficking committing drug in the course firearm applicable scheme The Id., crime. 550-51. sentence of seven for a provided if the defendant had brandished years imprisonment underlying commission of the during the firearm (ii) (1) (A) See U.S.C. 924 (c) crime. was a sentenc- brandishing

government presumed when formulat- by judge considered the ing factor be States, supra, v. United the sentence. Harris ing to the therefore did allude U.S. The indictment 551. firearm, govern- and the of the petitioner’s brandishing underlying the of the simply alleged ment elements the guilty, was found petitioner Id. After the offense. that he investigation report recommended presentence he minimum sentence because be given mandatory petitioner argued, the firearm. Id. The had brandished a element of brandishing separate was however, that sentencing rather than the jury, the offense and that the had bran- to make a that he required finding was judge, Supreme id. The United States dished the firearm. See a firearm concluding brandishing Court that disagreed, by the judge a factor to be deteimined was determined not an element of the offense to be increasing The juiy. Id., 556. court reasoned mandatory pre- minimum sentence did not alter the petitioner to which the was range penalties scribed “merely required impose but a exposed, judge by the specific sentence within the authorized range jury’s finding [petitioner guilty.” (Internal was] quotation Id., marks 563-64. omitted.) under Harris majority

The acknowledges that, not consti- precedent, other federal “the legislature [is] tutionally prohibited permitting from a court, opposed jury, to a to determine whether in (a) victim of sexual assault violation of 53a-70 majority nonetheless age.” less than The concludes, despite clarity of the and struc- language nothing “prevents 53a-70, ture of our from to make a as to the requiring finding” age purpose of a victim less than ten old for the imposing (Emphasis minimum sentence. majority necessary it original.) therefore finds history legislative provision to examine the of the order to discern the intent. legislature’s majority’s

I with the disagree conclusion history legislative shows clear intent to submit the jury. question Representative victim’s M. Norton proposed legislation Andrew introduced the year mandatory the ten minimum sentence regarding publicized rape case following highly involving p. an infant. See 38 H.R. 2666. Proc., Sess., Pt. primary penalty His concern was to increase the very victims, first sexual assault involving young consequences for whom the could be most devastating. See id. He did not address whether the of the victim 528 or for the for the court a factual issue

should be to determine. rejection urged

Representative of P. Lawlor Michael proposed legislation it did not make the because . . . .” age “element the victim an offense p. added.) (Emphasis 8, Sess., 1995 Proc., H.R. Pt. a flaw that omission as this 2670. He characterized provision Id. He there- unworkable.3 would render prefer- would be to whether it comment as fore made no finding factual to make the or the able for the court age. regarding victim’s Representative Dale W. Radcliffe stated

Thereafter, proposed legislation language was not of the that the language §of 53a- it was similar flawed because elderly persons, proscribes the assault which 59a, sixty years persons Id., are at least who is, that Representative § p. 53a-59a. Statutes 2671;see General Representative pointed Radcliffe’s that Lawlor out explaining 53a-59a incorrect, was observation elderly separate offense victims a makes the assault structurally consequently, § dis- 53a-59a that, p. Sess., Proc., H.R. Pt. 53a-70.38 similar to Representative man- discussed the Radcliffe also 2673. proved at could be of the victim in which the ner opinion to whether such did not offer trial but position “flawed” Representative amendment was Lawlor’s must appears of such victim based on his view to have been p. Proc., Sess., Pt. 38 H.R. as an element of the offense. be treated sixty- (a) (1) (age see, of victim at least 2670; e.g., General Statutes 53a-59a mandatory offense). sentence When old is element of adopted, provision did not have the benefit §of 53a-70 was Supreme subsequent Court cases in reasoning States in two United beyond penalty distinguished increase the between facts that the court by jury; Apprendi maximum, see statutory found which must be 490; Jersey, supra, that increase the and facts 530 U.S. New by statute, penalties prescribed range within the minimum sentence may the court. See Harris be found which are factors States, supra, 536 U.S. 565. v. United jury. Id., made to the court or to the

proof should be p. 2672. pro- M. Ward believed that the

Representative Robert penalty” to an “enhanced posed was similar legislation to the defendant notice require give that would the state by way prove information and to part of a two indicated jmy. Id., pp. 2674-75. He victim’s separate could be drafted as a statute provision id., p. 2675. He or as an amendment to 53a-70. See any problems “technical” with the also noted by the in the amendment could be resolved D. Representative future. Id. Richard Veltri stated proposed about whether he was unconcerned correctly; simply drafted he amendment had been p. 2677. adopted. Id., believed that it should be no consensus those my view, among there was participated who debate that the legislative make the factual of a finding regarding should Repre- The comments of victim less than ten old. sentatives Radcliffe and Ward indicate their belief that properly was drafted and was proposed legislation standpoint, despite Representa- viable from a technical contrary, tive Lawlor’s comments to the because of its purported similarity mandatoiy structural provisions penal in other statutes. None of spoke matter, however, expressed those who on the opinion as to the merits allowing court or the to make the factual finding regarding majority’s the victim’s I therefore submit that the conclusion that “the on understanding legislators ques- both sides of the amendment . . . that the factual tion of whether the victim was under ten of age jury” ... determined is not supported be by the record. legislative

Moreover, majority’s com- willingness weigh ments made debate that are incon- during legislative heavily language than the best, at more elusive, flies in the face of the itself, of the statute structure principle Courchesne, 262 Corm. in State established statutory (2003), “the that, A.2d 562 because 537, 816 important [interpreting language is the most factor necessarily employ sliding a kind of statute] ... we language strongly the bare text of the scale: the more persuasive particular meaning, suggests a the more in order for us sources will have to be extratextual legislature intended a different that the to conclude meaning.” comprehend I how Indeed, 574. fail to Id., majority and the structure can concedethat the text strongly suggest did of the statute age of a victim under ten old not intend for the rely yet legislative a offense, of the on to be an element history fraught ambiguity conclusion with to reach the age must be submitted to of such a victim jury. majority’s also raises

The construction of the statute example, questions it answers. For because more than mandatory provision in minimum sub- applies §of 53a-70 to each of the other three section majority (a), in subsection would the offenses described jury determine whether the victim is less than have the involving in cases those other offenses old though age of the victim is not an element of even any of those offenses?4 questions majority’s

The decision raises additional impose appropriate to to the trial court’s discretion proscribed by appear require (a) § 53a-70 that would Other offenses jury finding age in accordance a that the victim was less than ten majority’s interpretation with the compelled by provision (1) the use of force or include: sexual intercourse by force; (2) aided two or the threat of use of sexual intercourse that is persons actually present; who are sexual intercourse more other mentally incapacitated person that he or she is unable with a who is such (a) (1), (3) intercourse. See General Statutes 53a-70 to consent to sexual which are reports, investigation

sentence. Presentence routinely probation, adult of the state office of product a in aid the court many criminal cases to developed are reports such Typically, sentence. proper determining his relation to history and delve into the defendant’s experi- and work criminal record community, prior regarding as other considerations ence, as well assess the reports also background. defendant’s family. and the victim’s impact of the crime on the victim report provides that the If presentence investigation that the victim’s under the of ten and victim is the crime on the impact assessing is a factor this factor if required court victim, disregard is the rely on permitted or is it proven it is not any portion suspending a reason for not this factor as Additionally, if the court decides of the sentence? year sentence, is it appropriate sentence is a ten deriving the record that it is not required to state on authority from 53a-70 (b)? its summary, language I submit that it is clear from the of a victim and the structure of the statute that the less than ten old is not an essential element Consequently, first degree. crime of sexual assault by majority, I reached although concur result require I conclude that 53a-70 does not make a that the victim of first sexual finding puipose assault is less than ten for the minimum sentence. imposing WATSON B. METCALFE v. IRENE SANDFORD ET AL.

(SC 17145) Borden, Norcott, Katz, Vertefeuille, Palmer and Js. notes States the United Ed. 2d 524 (2002), 153 L. S. Ct. has court that a Court determined Supreme rise to give findings factual make discretion The sentence. mandatory minimum imposition of a nothing is that “there declares majority nonetheless prevents requiring from legislature our imposition finding” triggers make a original.) in (Emphasis sentence. history of the majority legislative examines the then and provision concludes the victim less of whether that the issue intended to the should be submitted than mandatory minimum purpose imposing for the majority with of the I the conclusion disagree sentence. contrary lan plain such a conclusion is because statutory is with the statute, inconsistent guage history supported by the legislative and is not scheme majority which relies. on 03-154, 1, provides: No. “The Public Acts be shall, instance, of a in the first ascer- meaning statute relation- from text of the itself and its tained statute text If, such ship examining to other statutes. after of such text considering relationship, meaning such yield absurd or plain unambiguous and does is evidence of the mean- results, unworkable extratextual of the statute shall not be considered.” ing in at the time present case, In the statute effect (Rev. was General Statutes the crimes were committed provides part: 1997) 53a-70, “(a) relevant A is of sexual assault the first person guilty person engages when such ... in sexual inter- person person with and such other course another

Case Details

Case Name: State v. Kirk R.

Court Name: Supreme Court of Connecticut

Date Published: Oct 19, 2004

Citation: 857 A.2d 908

Docket Number: SC 16940

Court Abbreviation: Conn.