State v. Kirk R.State v. Kirk R.
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Lead Opinion
Opinion
BORDEN, J.The defendant appeals, following our grant of certification,2 from the judgment of the Appellate Court affirming the trial court’s judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Stat*501utes (Rev. to 1997) § 53a-70 (a) (2),3 and two counts of risk of injury to a child in violation of
The defendant, Kirk R., was charged with two counts of sexual assault in the first degree and two counts *502of risk of injury to a child in connection with certain incidents involving his minor stepdaughters, Z and F. The jury found the defendant guilty of all charges and the trial court rendered judgment of conviction in accordance with the verdict. The trial court, relying on § 53a-70 (b), imposed ten years of the defendant’s fifteen year sentence of confinement as a mandatory minimum sentence.6 The defendant appealed to the Appellate Court, claiming, among other things, that the trial court should not have imposed the ten year mandatory minimum sentence under § 53a-70 (b) without first submitting the question of the victims’ ages to the jury. State v. Kirk R., 74 Conn. App. 376, 379, 812 A.2d 113 (2002). The Appellate Court affirmed the judgment of the trial court, concluding that the question of whether the victims were less than ten years of age was not an element of the crime, but merely a sentencing factor properly determined by the trial court. Id., 386. This certified appeal followed.
The following facts and procedural history are relevant to this appeal. The information on which the defendant was charged, alleged, among other things, the following: “[D]uring the time period of approximately July, 1997 through approximately September, 1998 . . . [the defendant] engaged in sexual intercourse with *503another person and such other person was under thirteen (13) years of age, in violation of § 53a-70 (a) (2) . . . .” In its instructions to the jury, the trial court stated: “A person is guilty of sexual assault in the first degree when such person engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person. The statute sets up three elements which must be established beyond a reasonable doubt in order to justify a verdict of guilty. . . . The second element of the offense charged is that the sexual intercourse was with a person [who] was under thirteen. That is, as she had not yet reached her thirteenth birthday at the time of the sexual intercourse. . . . There is no requirement that the state prove that intercourse was done by force or even without consent of the other person. . . . The only requirements are that the accused engaged in sexual intercourse with another person who was under thirteen and the defendant was more than two years older than that person.” The jury found the defendant guilty as charged.
Thereafter, at the sentencing hearing, the trial court, acknowledging that it was required to impose a mandatory minimum sentence of ten years for the two counts of sexual assault in the first degree, sentenced the defendant to a period of incarceration beyond that mandatory minimum period.7 See footnote 6 of this opinion. The defendant appealed to the Appellate Court claiming, among other things, that the trial court committed plain error by imposing a ten year mandatoiy minimum sentence under § 53a-70 (b) without submitting the question of the victims’ ages to the jury.8 State v. Kirk R., *504supra, 74 Conn. App. 379. Relying primarily on Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002), the Appellate Court reasoned that, because § 53a-70 (b) does not increase the potential maximum sentence for a conviction of sexual assault in the first degree, but specifies the minimum sentence in instances in which the victim is less than ten years of age, the question of whether the victims were less than ten years of age did not constitute a “sentencing enhancement,” which ordinarily must be submitted to the jury. State v. Kirk R., supra, 385. Instead, the Appellate Court concluded that the issue of whether the victims were less than ten years of age constituted a “sentencing factor,” and, therefore, the trial court did not commit plain error by failing to submit that issue to the jury.9 Id., 386. Accordingly, the Appellate Court affirmed the trial court’s judgment of conviction. Id., 391.
The defendant claims that the Appellate Court improperly concluded that § 53a-70 (b), does not require a finding by the jury that the victim was less than ten years of age. Specifically, the defendant contends that, under State v. Velasco, 253 Conn. 210, 218, 751 A.2d 800 (2000),10 irrespective of whether § 53a-70 (b) constitutes *505a sentencing enhancement or a sentencing factor, the proper inquiry centers on legislative intent, and that basic tools of statutory construction reveal that the legislature intended for the jury to determine whether the victim of a sexual assault under § 53a-70 (a) was less than ten years of age.11 The state argues, on the other hand, that the legislature did not intend to make the question of whether the victim was less than ten years of age an element of § 53a-70 (a), nor did the legislature intend “to expand the length of incarceration . . . proscribed by the statute.” Thus, the state contends, the Appellate Court correctly construed § 53a-70 (b) as a sentencing factor properly decided by the trial court. In the alternative, the state argues that any impropriety in the present case constituted harmless error because the ages of the victims were not challenged and were “supported by overwhelming evidence.”
We agree with the defendant that the legislature intended for the jury, and not for the sentencing court, to determine whether the victim of a sexual assault *506under § 53a-70 (a) was less than ten years of age, and, consequently, the trial court improperly imposed the ten year mandatory minimum sentence under § 53a-70 (b) without having first instructed the jury that it must find that the victims were less than ten years of age. We agree with the state, however, that the trial court’s failure to do so in the present case was harmless beyond a reasonable doubt.
As an initial matter, we note that the defendant did not object to the trial court’s failure to instruct the jury that it must find that the victims in the present case were less than ten years of age. As a result, the defendant seeks to prevail under either State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),12 or the plain error doctrine contained in
*508“Other than the fact of aprior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, supra, 530 U.S. 490. “[T]he statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . . In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Blakely v. Washington, 542 U.S. 296, 303-304, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).15 A trial court *509is free to determine a fact that triggers a mandatory minimum sentence, however, because such a “finding merely require [s] the judge to impose ‘a specific sentence within the range authorized by the jury’s finding that the defendant [was] guilty.’ ” Harris v. United States, supra, 536 U.S. 563-64; see McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986) (mandatory minimum sentencing provision “operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it”). The defendant does not dispute that § 53a-70 (b) creates a mandatory minimum sentencing provision and does not increase, in an Apprendi sense, the statutorily authorized penalty for the underlying crime. See footnote 11 of this opinion. Thus, it is undisputed that the legislature was not constitutionally prohibited from permitting the sentencing court, as opposed to a jury, to determine whether a victim of sexual assault in violation of § 53a-70 (a) was less than ten years of age.
Nevertheless, there is nothing that prevents our legislature from requiring the jury to make a finding in order to oblige a trial court to impose a mandatory minimum sentence—indeed it has done so in a similar context. See, e.g.,
“Several additional tenets of statutory construction guide our interpretation of a penal statute. . . . [C]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . [Ujnless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly *511construed against the state.” (Citations omitted; internal quotation marks omitted.) State v. Velasco, supra, 253 Conn. 219-20.
We begin our analysis with “the language of the statute, because that is the most important factor to be considered.” State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003). The structure of § 53a-70 suggests that the legislature did not intend the factual predicate of the ten year mandatory minimum sentence, that the victim was less than ten years of age, to be an element of first degree sexual assault. At the time of the acts alleged in the present case,
Indeed, the fact that the ten year mandatory minimum sentence provision of
As the Appellate Court noted, the ten year mandatory minimum sentencing provision was first proposed as an amendment to Senate Bill No. 872, which primarily established Connecticut’s sex offender registration law. *513State v. Kirk R., supra, 74 Conn. App. 383 n.12. The amendment was offered by Representative Andrew M. Norton in response to a highly publicized case in which a nine month old child was raped. Id. Representative Norton stated that the purpose of the amendment was to “increase the penalty on a person convicted of raping or seriously physically assaulting someone who is under ten years old.” 38 H.R. Proc., Pt. 8, 1995 Sess., p. 2667. In opposition to the amendment, Representative Michael P. Lawlor noted that the language of the bill was “flawed” because the amendment did not make it an element of the offense that the victim was under the age of ten. Id., p. 2670. Representative Lawlor also stated: “So you could change it and write it correctly to make it an element, but it is not, at least the way I read it.” Id.
In response to Representative Lawlor’s criticism of the amendment, Representative Dale Radcliffe noted that the amendment is similar to statutes that impose a mandatory minimum sentence if the victim of an assault was at least sixty years of age.19 Id., p. 2671; see, e.g.,
In addition, Representative Robert M. Ward likened the mandatory minimum sentencing provision contained in
This exchange indicates that the legislature intended
Representative Ward’s comments, which analogized the enhanced penalties available for driving while under the influence, indicate that the state must allege in the information that the victim is less than ten years of age. See 38 H.R. Proc., supra, pp. 2674-75. This strongly suggests that
Finally, both Representatives Radcliffe and Ward discussed scenarios that were likely to occur at trial. In this regard, Representative Radcliffe indicated that the state may introduce the victim’s birth certificate into evidence at trial; id., p. 2672; and Representative Ward proposed a potential jury instruction referencing the age of the victim. Id., p. 2674. Again, these remarks suggest that the state would need to prove that the victim was less than ten years of age during the guilt phase of the trial, as opposed to during the sentencing phase.
All of these comments taken together persuade us that the legislature intended for the jury, and not for the court, to determine whether a victim of a sexual assault under
With those principles in mind, we now address the state’s claim that the trial court’s failure to instruct the jury that it must have found that the victims in the present case were less than ten years of age constituted harmless error.23 “A jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontesled and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error .... Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 114 L. Ed. 2d 35 (1999).” (Emphasis in original; internal quotation marks omitted.) State v. Velasco, supra, 253 Conn. 232-33; see also State v. Davis, 255 Conn. 782, 794, 772 A.2d 559 (2001); State v. Montgomery, 254 Conn. 694, 737-38, 759 A.2d 995 (2000). Thus, our sole task is to determine, beyond a reasonable doubt, whether the fact that the victims in the present case were less than ten years of age was uncontested and supported by overwhelming evidence. We conclude that it was, and, accordingly, the defendant’s claim fails under the fourth prong of Golding. See footnote 12 of this opinion.
The following additional facts are necessary to resolve this issue. The trial in the present case occurred *518in November, 2000, and the information alleged that the acts for which the defendant was convicted allegedly occurred between July, 1997, and September, 1998. Colleen Bush, an investigative social worker employed by the department of children and families, testified that Z, the elder of the two victims, was bom on October 26, 1990, and that F, the younger of the two victims, was bom on December 5,1993. Bush also testified that, at the time of the trial, Z was ten years of age and F was six years of age.
During both direct examination and cross-examination, Z testified that, at the time of the trial, she was ten years of age. On direct examination, F testified that, at the time of the trial, she was six years of age, and that Z was eleven years of age.24 On cross-examination, F repeated that she presently was six years of age.
Anne Yost, a social worker employed by Bridgeport Hospital, testified that she had interviewed the victims at the hospital on January 7, 1999. Referring to each victim’s medical records prepared from that visit, which the state marked for identification but did not introduce as full exhibits, Yost testified that Z was bom on October 23, 1990,25 and that F was bom on December 5, 1993. Yost also testified that, at the time of that particular visit in January, 1999, Z and F were eight and five years of age, respectively. Jean Massey, the victims’ foster mother for several months, also testified that, in January, 1999, Z and F were eight and five years of age, respectively. Finally, Ralph S. Welsh, a psychologist who examined the victims, answered in the affirmative *519when asked if Z and F were bom in 1990 and 1993, respectively.
With respect to documentary evidence, the state submitted into evidence a transcript of a recorded statement made to the police by Z on February 2, 1999, wherein Z stated that she was eight years of age. The defendant submitted into evidence the hospital records of the victims, which indicated that, on September 14, 1998, Z and F were seven and four years of age, respectively. These hospital records also listed the victims’ dates of birth, indicating that Z was bom on October 26, 1990, and that F was bom on December 5, 1993. The victims’ hospital records were the only exhibits that the defendant submitted into evidence.
On the basis of the foregoing, and after a careful review of the entire record, we conclude, beyond a reasonable doubt, that the fact that the victims in the present case were less than ten years of age was supported by overwhelming evidence and was not contested by the defendant. Given the jury’s verdict, we know that the jury found that the victims were less than thirteen years of age. The only evidence, testimonial or otherwise, that established the victims’ dates of birth indicated that Z was bom in 1990, and that F was bom in 1993. Indeed, the defendant himself submitted documentary evidence that listed the victims’ dates of birth. In addition, Z and F testified that, at the time of the trial, they were ten and six years of age, respectively. All of this testimony was corroborated by Bush, Yost, Massey and Welsh. Considering that the acts for which the defendant was convicted allegedly occurred between July, 1997, and September, 1998, simple arithmetic, either counting backward from the date of the trial, or forward from the victims’ dates of birth, indicates that the victims were less than ten years of age when the alleged sexual assaults had occurred.
*520In addition, several witnesses testified regarding the ages of the victims in 1998 and 1999, all of whom indicated that the victims were less than ten years of age. The defendant, furthermore, never contested the ages of the victims. Rather, the defendant’s sole defense was that he never sexually assaulted the victims. Lastly, there was no evidence submitted to the jury on which it could have concluded that the victims were ten years of age or older at the time of the acts alleged in the present case. Although it could be argued that the defendant may not have contested the ages of the victims to the extent that their ages were less than thirteen years of age, we are convinced, beyond a reasonable doubt, that the jury, had it been instructed to do so, would have found that the victims in the present case were less than ten years of age.
The judgment of the Appellate Court is affirmed.
In this opinion NORCOTT, PALMER and VERTEFEU-ILLE, Js., concurred.
Notes
We granted the defendant’s petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly determine that the provisions of
General Statutes (Rev. to 1997) I 53a-70 provides: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person, or (3) commits sexual assault in the second degree as provided in section 53a-71 and in the commission of such offense is aided by two or more other persons actually present.
“(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court or, if the victim of the offense is under ten years of age, for which ten years of the sentence imposed may not be suspended or reduced by the court.”
Because the conduct for which the defendant was convicted occurred between July, 1997, and September, 1998, we refer to the revision of
The convictions under
For the sake of clarity, and as we discuss later in this opinion, this claim is legally equivalent to a claim that the trial court improperly omitted an element of the offense in its instructions to the jury. See State v. Velasco, 253 Conn. 210, 232, 751 A.2d 800 (2000).
“[T]he trial court sentenced the defendant to a term of twenty years incarceration, suspended after fifteen years, followed by thirty-five years of probation on the first count, which alleged violations of
The defendant’s counsel also acknowledged the application of the ten year mandatory minimum sentence to the defendant, and requested that the court not impose any period of incarceration beyond that mandatory period.
Because the defendant conceded that his claim was not properly preserved at trial, and was not of constitutional magnitude, he sought to prevail under the plain error dod rine. State v. Kirk R., supra, 74 Conn. App. 379-80.
The Appellate Court also noted that, although “the legislative debate . . . [did] not reveal any evident legislative intent” behind the mandatory minimum sentencing provision; (internal quotation marks omitted) State v. Kirk R., supra, 74 Conn. App. 384; the fact that “the legislature added the aggravating factor to the sentencing portion of the statute, separated from the substantive elements of the crime . . . suggests an implicit intent to make the age of the victim a sentencing factor.” Id.
In State v. Velasco, supra, 253 Conn. 217-18, we determined that it was not the legislature’s intent to eliminate the jury’s role as fact finder during an application of
The defendant concedes that, because
“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. “The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim. . . . In the absence of any one of the four Golding conditions, the defendant’s claim will fail.” (Citation omitted; internal quotation marks omitted.) State v. Andresen, 256 Conn. 313, 325, 773 A.2d 328 (2001). “The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 240.
“The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .
“It is the responsibility of the appellant to provide an adequate record for review as provided in Section 61-10.”
Although the defendant did not seek to prevail under Golding in the Appellate Court, the court nonetheless stated that “his claim is not one of constitutional magnitude alleging a violation of a constitutional right . . . and therefore fails to satisfy the second prong of Golding.” (Citation omitted; internal quotation marks omitted.) State v. Kirk R., supra, 74 Conn. App. 379-80. On the basis of the foregoing discussion, we disagree with that determination. See also State v. Denby, 235 Conn. 477, 483-84, 668 A.2d 682 (1995) (applying Golding to claim that trial court failed to instruct jury on element of crime).
We also disagree with the Appellate Court’s determination that the defendant’s claim was reviewable “under the plain error doctrine as set forth in State v. Velasco, [supra, 253 Conn. 218-19 n.9[.” State v. Kirk R., supra, 74 Conn. App. 380. “[T]he plain error doctrine, which is now codified at
After oral argument in the present case, the United States Supreme Court decided Blakely v. Washington, supra, 542 U.S. 299, wherein it held unconstitutional, in violation of the Apprendi rule, Washington’s sentencing guideline scheme that permitted a court to impose an “ ‘exceptional’ ” sentence if it finds “ ‘substantial and compelling reasons’ ” to justify such a departure. In Blakely, the defendant pleaded guilty to kidnapping in the second degree and, pursuant to his plea agreement, the state recommended a sentence within the standard sentencing range of forty-nine to fifty-three months. Id., 300. The trial court sentenced the defendant to ninety months, however, because it found that the defendant had acted with “ ‘deliberate cruelty.’ ” Id. Because the finding of “ ‘deliberate cruelty,’ ” which increased *509the defendant’s sentence beyond the standard range, was neither stipulated to by the defendant nor found by a jury, the defendant’s sentence violated his sixth amendment right, to a jury trial. Id., 303-304. As the foregoing discussion makes clear, Blakely does not alter our analysis in the present case because: (1) the present case involves a factual finding that triggers the imposition of a mandatory minimum sentence within the prescribed statutory range of penalties available to the sentencing court; see footnote 17 of this opinion; and (2) we nonetheless conclude, on the basis of the legislative history of § 53a-70 (a), that the jury should have made the findings that the victims in the present case were less than ten years or age.
We are aware, of course, that the legislature recently imposed the method by which this court is to interpret statutes. Number 03-154, § 1, of the 2003 Public Acts provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” The text of § 53a-70 (b) does not address whether the jury or the trial court is to determine whether the victim of a sexual assault is less than ten years of age. In addition, neither party contends that the statutory text at issue is plain and unambiguous, and both parties have relied on the legislative history of § 53a-70 (b) in support of their positions. Accordingly, Public Act 03-154 does not govern our interpretation of § 53a-70 (b), and, therefore, our analysis may properly consider sources of meaning in addition to the text of § 53a-70 (b). See Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 532, 839 A.2d 1250 (2004).
A class B felony has a maximum penalty of twenty years imprisonment. See
The precedential value of this case necessarily is limited by virtue of the legislative history that is uniquely pertinent to § 53a-70 (b). Our review of any other mandatory minimum sentencing provision must be undertaken with primary emphasis on the particular language, structure, legislative history and genealogy of that provision, not § 53a-70 (b).
In their briefs to this court, the parties did not present arguments regarding their interpretation of the legislative debate surrounding P.A. 95-142. Instead, the defendant submitted, by way of facsimile, a transcript of that debate to this court the day before oral arguments in the present case, and the state merely referenced the Appellate Court’s interpretation of that debate in its brief to this court. See footnote 9 of this opinion; State v. Kirk R., supra, 74 Conn. App. 383 n.12, 384.
Representative Lawlor disagreed, noting that, unlike the amendment at issue, the assault of a victim who is at least sixty years of age is a separate offense. 38 H.R. Proc., supra, p. 2673. In this connection, Representative Lawlor stated: “We have two separate statutes, [§] 53a-59 assault in the first degree, Class B felony, has its own penalty. There is a separate statute, [§ 53a-59a] assault on a victim over [sixty]. In order to have an enhanced penalty, you have to have a separate crime and this flawed amendment simply says at the penalty phase, if the person has been convicted of, in this case, assault—first degree, without a separate offense, it just says that if the victim happens to be under ten, there is an enhanced penalty. You can’t do it that way. You could easily fix this. You could have a separate section for which someone could be convicted and then punished. This is flawed. I acknowledge that in a few minutes you could fix this and we could vote on a proper bill . . . .’’Id.
Despite Representative Ward’s statement, § 53a-70 does not require that the state prove that the defendant believed, or a reasonable person would have believed, that the victim was less than ten years of age. Rather, § 53a-70 creates a strict liability crime, and the state is not required to prove the actor’s knowledge or intent as an element of the offense. Nevertheless, Representative Ward’s comments strongly suggest that the issue of the victim’s age was intended to be submitted to the jury.
For instance,
“(d) Assault of an elderly . . . person in the first degree is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not, be suspended or reduced by the court.”
Thus, in order to obtain a conviction under
The state argues, nonetheless, that, had the legislature intended for § 53a-70 (b) to be an element of the offense, then it could have created a separate statutory offense. The short answer to this contention is that, on the basis of the legislative debate surrounding the statute, we are persuaded that 1 he legislature intended to accomplish that very functional result, despite the structural irregularity of § 53a-70.
The defendant has not addressed the issue of harmlessness in his brief to this court.
The parties have not commented on the fact that F testified that Z presently was eleven, as opposed to ten, years of age. In any event, even if the jury believed F’s statement that Z was presently eleven years of age, on the basis of the dates contained in the information, Z still would have been less than ten years of age at the time of the acts alleged in the present case.
After reading Z’s date of birth aloud, Yost testified: “Is that right? I’m sorry. It’s kind of unclear .... The stamp is a little blurry.”
Concurrence Opinion
concurring. I concur in the result reached by the majority. I write separately, however, because I do not agree with the majority that
The majority concedes that age is an element of the offense of sexual assault in the first degree under
Public Acts 2003, No. 03-154, § 1, provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”
In the present case, the statute in effect at the time the crimes were committed was
The majority concludes, after analyzing the language of the statute, that “the age of the victim is an element of the offense of sexual assault in the first degree, but only, at least explicitly, inasmuch as the state is required to prove that the victim was less than thirteen years of age.” (Emphasis in original.) I emphatically agree. I also believe, however, unlike the majority, that including the age of thirteen, and not the age of ten, as an element of the offense strengthens the argument of the state that “under ten years of age” is a sentencing factor because once the state has proved to the jury that the victim was less than thirteen years of age and the defendant is found guilty, no further proof of the victim’s age is necessary. The requisite determination as to the age of the victim having been made by the jury, the offender is exposed to a maximum penalty of twenty years incarceration, and in the case of a victim less than ten years old, a mandatory minimum sentence of ten years incarceration. See
The majority next observes that the fact that
The sentencing portion of the statute provides in relevant part: “Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court *523or, if the victim of the offense is under ten years of age, for which ten years of the sentence imposed may not be suspended or reduced by the court.”
Moreover, there can be no doubt that there is a clear division in the structure of the statute between the substantive provisions of subsection (a), which describe the elements of the offense, and the sentencing provisions of subsection (b), which describe the manner in which a sentence is to be imposed. Indeed, because
*524“We are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions, which do not find expressions in its words . . . .” (Internal quotation marks omitted.) Carmel Hollow Associates Ltd. Partnership v. Bethlehem, 269 Conn. 120, 139, 848 A.2d 451 (2004). Furthermore, when the legislature drafts sentencing provisions, it knows how to do so. State v. Jones, 234 Conn. 324, 367, 662 A.2d 1199 (1995). If the legislature had intended for the jury to make a factual finding regarding the victim’s age for mandatory minimum sentencing purposes, it could have made the age of such a victim an element of
Furthermore, when considering
No other Connecticut case has addressed the issue presented in this appeal. In State v. Velasco, 253 Conn. 210, 751 A.2d 800 (2000), this court determined that the question of whether a defendant used a firearm in the commission of a felony, which increases the penalty for the underlying felony beyond the statutory maximum under
In Harris, the petitioner was convicted of carrying a firearm in the course of committing a drug trafficking crime. Id., 550-51. The applicable sentencing scheme provided for a mandatory minimum sentence of seven years imprisonment if the defendant had brandished the firearm during the commission of the underlying crime. See
The majority acknowledges that, under Harris and other federal precedent, “the legislature [is] not constitutionally prohibited from permitting the sentencing court, as opposed to a jury, to determine whether a victim of sexual assault in violation of
I disagree with the majority’s conclusion that the legislative history shows a clear intent to submit the question of the victim’s age to the jury. Representative Andrew M. Norton introduced the proposed legislation regarding the ten year mandatory minimum sentence following a highly publicized case involving the rape of an infant. See 38 H.R. Proc., Pt. 7, 1995 Sess., p. 2666. His primary concern was to increase the penalty for first degree sexual assault involving very young victims, for whom the consequences could be most devastating. See id. He did not address whether the age of the victim *528should be a factual issue for the court or for the jury to determine.
Representative Michael P. Lawlor urged rejection of the proposed legislation because it did not make the age of the victim an “element of the offense . . . .” (Emphasis added.) 38 H.R. Proc., Pt. 8, 1995 Sess., p. 2670. He characterized this omission as a flaw that would render the provision unworkable.3 Id. He therefore made no comment as to whether it would be preferable for the court or the jury to make the factual finding regarding the victim’s age.
Thereafter, Representative Dale W. Radcliffe stated that the language of the proposed legislation was not flawed because it was similar to the language of
Representative Robert M. Ward believed that the proposed legislation was similar to an “enhanced penalty” that would require the state to give the defendant notice by way of a two part information and to prove the victim’s age to the jmy. Id., pp. 2674-75. He indicated that the provision could be drafted as a separate statute or as an amendment to
In my view, there was no consensus among those who participated in the legislative debate that the jury should make the factual finding regarding the age of a victim less than ten years old. The comments of Representatives Radcliffe and Ward indicate their belief that the proposed legislation was drafted properly and was viable from a technical standpoint, despite Representative Lawlor’s comments to the contrary, because of its purported structural similarity to mandatoiy minimum sentencing provisions in other penal statutes. None of those who spoke on the matter, however, expressed an opinion as to the merits of allowing the sentencing court or the jury to make the factual finding regarding the victim’s age. I therefore submit that the majority’s conclusion that “the understanding of legislators on both sides of the amendment . . . that the factual question of whether the victim was under ten years of age . . . is to be determined by the jury” is not supported by the legislative record.
Moreover, the majority’s willingness to weigh comments made during the legislative debate that are incon*530elusive, at best, more heavily than the language and the structure of the statute itself, flies in the face of the principle established in State v. Courchesne, 262 Corm. 537, 816 A.2d 562 (2003), that, because “the statutory language is the most important factor in [interpreting a statute] . . . we necessarily employ a kind of sliding scale: the more strongly the bare text of the language suggests a particular meaning, the more persuasive the extratextual sources will have to be in order for us to conclude that the legislature intended a different meaning.” Id., 574. Indeed, I fail to comprehend how the majority can concede that the text and the structure of the statute strongly suggest that the legislature did not intend for the age of a victim under ten years old to be an element of the offense, yet rely on a legislative history fraught with ambiguity to reach the conclusion that the age of such a victim must be submitted to the jury.
The majority’s construction of the statute also raises more questions than it answers. For example, because the mandatory minimum sentencing provision in subsection (b) of
The majority’s decision raises additional questions as to the trial court’s discretion to impose an appropriate *531sentence. Presentence investigation reports, which are a product of the state office of adult probation, routinely are developed in many criminal cases to aid the court in determining a proper sentence. Typically, such reports delve into the defendant’s history and his relation to the community, prior criminal record and work experience, as well as other considerations regarding the defendant’s background. The reports also assess the impact of the crime on the victim and the victim’s family. If a presentence investigation report provides that the victim is under the age of ten and that the victim’s age is a factor in assessing the impact of the crime on the victim, is the court required to disregard this factor if it is not proven to the jury or is it permitted to rely on this factor as a reason for not suspending any portion of the sentence? Additionally, if the court decides that the appropriate sentence is a ten year sentence, is it required to state on the record that it is not deriving its authority from
In summary, I submit that it is clear from the language and the structure of the statute that the age of a victim less than ten years old is not an essential element of the crime of sexual assault in the first degree. Consequently, although I concur in the result reached by the majority, I conclude that
All references in this opinion to
“(b) Assault in the first degree is a class B felony provided . . . (2) any person found guilty under subsection (a) shall be sentenced to a term of imprisonment of which ten years of the sentence imposed may not be suspended or reduced by the court if the victim of the offense is a person under ten years of age . . . .” (Emphasis added.)
Representative Lawlor’s position that the amendment was “flawed” appears to have been based on his view that the age of such a victim must be treated as an element of the offense. 38 H.R. Proc., Pt. 8, 1995 Sess., p. 2670; see, e.g.,
Other offenses proscribed by