39 Conn. App. 267 | Conn. App. Ct. | 1995
The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49
The jury could reasonably have found the following facts. On May 9, 1992, the four year old victim lived with her mother in Granby. That evening, the defendant visited the apartment, where the victim’s mother also had two other guests. During the three to four hours during which the defendant remained at the apartment, the adults were drinking alcohol.
The victim, who had been put to bed in another room, did not fall asleep. Instead, the victim repeatedly entered the room where the adults were drinking. On one such occasion, the victim asked for something to drink and the defendant handed the victim a cup containing rum and soda. The victim drank the liquid, although she said it tasted funny, and the defendant refilled the cup with the same mixture. The victim drank approximately one half of the contents of the cup.
Later that evening, the defendant volunteered to read the victim a story, and went into her bedroom. After reading a story, the defendant fondled the vaginal and anal areas of the victim and attempted to penetrate her vagina and anus with his finger. The victim’s mother heard the victim say “don’t touch me” and when the victim’s mother entered the bedroom, the victim told her that the defendant had “touched my pee-pee” and tried to touch her “butt” but that she would not let him. The victim’s mother asked the three guests to leave,
I
The defendant first claims that the trial court improperly convicted him of attempt to commit sexual assault in the first degree. The defendant argues that because he was charged by information with sexual assault in the first degree, which has only a general intent element, he was not given proper notice that he could be convicted of attempt to commit sexual assault in the first degree, which has a specific intent element. The defendant claims that this lack of notice of the charges against him violates article first, § 8, of the Connecticut constitution.
The defendant acknowledges that he failed to preserve this issue for appeal. He asks us to afford review under the constitutional bypass doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).
Practice Book § 867
The defendant posits that § 867 and § 54-60, both predating the existence of our penal code, reflect the common law rule that attempt to commit a crime is a lesser included offense of any crime charged. Because the legislature abolished common law crimes with the creation of the penal code; State v. Bunkley, 202 Conn. 629, 638, 522 A.2d 795 (1987); and attempt is now statutorily defined by § 53a-49 to require specific intent,
We decline to adopt the defendant’s reasoning. Neither § 867 nor § 54-60 suggests that an attempt to commit a crime must necessarily be a lesser included offense to the crime. In fact, because both provisions refer separately to lesser included offenses and attempt to commit the charged offense, the defendant’s argument that attempt must be a lesser included offense for these provisions to apply is without merit. See Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231-32, 477 A.2d 988 (1984) (“in construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous”); State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978).
II
The defendant next claims that the trial court improperly failed to instruct the jury on the definition of specific intent as an element of attempt to commit sexual assault in the first degree. The defendant failed to preserve this claim at trial and requests review under the constitutional bypass doctrine of Evans-Golding.
In order for us to conclude that improper jury instructions have deprived the defendant of a fair trial, we must find that, considering the substance of the charge as a whole, it is reasonably possible that the jury was misled. Id.; see also State v. Walton, 227 Conn. 32, 65-66, 630 A.2d 990 (1993). We do not find that to be true here.
As a general rule, “[w]hen a word contained in an essential element carries its ordinary meaning, failure to give the statutory definition will not constitute error.” State v. Jackson, supra, 34 Conn. App. 607-608, quoting State v. Kurvin, 186 Conn. 555, 562, 442 A.2d 1327 (1982). This rule has been applied to the omission of the statutory definition of specific intent. See, e.g., State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); State v. Jackson, supra, 608. Because the word “intent” as used to define an element of attempted sexual assault carries its ordinary meaning, and the trial court clearly instructed the jury that intent must be found to return a verdict of guilty for that offense,
Ill
The defendant also claims that the trial court improperly failed to instruct the jury on the specific intent element of risk of injury to a child. We disagree.
This claim of error was not preserved at trial and the defendant seeks review under the constitutional bypass doctrine of Evans-Golding.
Section 53-21
The state charged that the defendant had impaired the health or morals of the child in any of three ways: (1) giving the victim alcohol to drink; (2) fondling the victim’s genital and anal areas; and (3) digitally penetrating the victim’s vagina and anus. The defendant’s argument has two components. He first contends that the alleged violation of § 53-21 by giving the victim alcohol to drink constituted a first prong violation and not a second prong violation.
The defendant argues that our prior case law establishes that when § 53-21 is violated by providing alcohol or drugs to a child, it is a first prong violation. We disagree. Although in both State v. Ostolaza, supra, 20 Conn. App. 40, and State v. Mancinone, 15 Conn. App. 251, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989), the trial court instructed the jury that providing alcohol or drugs to children could lead to a finding that the defendant was guilty of a first prong violation, these cases do not exclude the possibility that in some circumstances providing alcohol to a child can be a second prong violation.
In both Ostolaza and Mancinone, the victims were teenagers and the state alleged that the defendant had made alcohol and marijuana available to the victims or had given alcohol and marijuana to the victims for their personal use. In this case, the defendant handed a cup containing rum to the four year old victim who had requested something to drink. This is not the creation of a situation that might cause injury to the child. Instead, due to the age of the victim, this is an act directly perpetrated upon a child that is likely to impair the health or morals
The defendant’s final claim is that the trial court improperly revoked his probation without consideration of the whole record. The following facts are relevant to this claim. When the defendant was arrested for the assault of the victim, he was also arrested for violation of probation. By motion of the state, the trial court considered the evidence presented at the trial on the assault of the victim in determining whether there had been a violation of probation. After the jury returned its verdict, the trial court found a violation of probation and asked if the defendant wanted to be heard prior to sentencing on the violation of probation. The defendant’s trial attorney was absent, and a continuance was granted to allow his trial counsel to appear and address the court prior to sentencing.
Pursuant to General Statutes § 53a-32, “a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial eviden-tiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consider
The defendant argues that “the court’s willingness to sentence the defendant immediately upon a finding of a violation of probation reflects the trial court’s belief that a finding of a violation alone was sufficient to revoke the defendant’s probation,” and that the trial court’s failure to review the whole record before ordering that his probation be revoked violated his due process rights. The defendant admits, however, that he failed to preserve this claim at trial, and asks for review under the constitutional bypass doctrine of Evans-Golding.
We decline to afford review of this claim because the record is not adequate for review. The defendant’s contention that the trial court “failed to review the whole record” is premised on speculation. The trial court, after finding a violation of probation, exercises broad discretion in deciding whether to revoke probation. State v. Davis, supra, 229 Conn. 290. Although the subsidiary facts supporting the finding of a violation must be explicitly set forth in the trial court’s decision, the trial court is not required to explicate the subsidiary findings supporting its conclusion that probation should be revoked. See State v. Baxter, 19 Conn. App. 304, 321,
In this case, the record reveals that the defendant was on probation and, as a condition of probation, he was not to violate any of the laws of this state. The defendant was arrested and charged with sexual assault in the first degree and risk of injury to a child. At the trial on these charges the jury found, beyond a reasonable doubt, that the defendant had committed attempted sexual assault in the first degree on a four year old child and risk of injury to that child. The trial court, considering the evidence from the trial, made an independent determination, explicitly set forth in the record, that the defendant had violated his probation.
When defense counsel addressed the court prior to sentencing, the plea for leniency in sentencing revolved around the minimization of the seriousness of the offenses and the profound impact the sentence would have on the defendant’s grandmother. After defense counsel’s argument, the trial court observed that the defendant’s denial of the charges of which he had been convicted was indicative of his failure to utilize the rehabilitative aspects of his probation. The trial court also commented that the seriousness of the crimes demonstrated that the defendant posed a serious risk to society, especially other young children. The trial court then concluded that in addition to the sentence for the attempted sexual assault and risk of injury to a child, the defendant’s probation should be revoked. We find that the record supports the presumption that the trial court impliedly found that the beneficial purposes of
The judgments are affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-49 provides in relevant part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person ... (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 . . . .”
General Statutes? 53-21 provides: “Anypersonwho wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be informed of the nature and cause of the accusations . . . .”
“In State v. Golding, [supra, 213 Conn. 239-40] our Supreme Court reformulated the test of reviewability in [State v. Evans, supra, 165 Conn. 61]. The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim 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.” (Internal quotation marks omitted.) State v. Velez, 30 Conn. App. 9, 20-21, 618 A.2d 1362 (1993); State v. Gamble, 27 Conn. App. 1, 13, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992); see also State v. Walker, 33 Conn. App. 763, 768-69, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994). The first and second prongs of the Golding test dictate whether an issue will be reviewed, and the third and fourth prongs constitute review of the
Practice Book § 867 provides in relevant part: “The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein, if the attempt is an offense.”
General Statutes § 54-60 provides: “Whenever any indictment, information or complaint is pending before any court, a conviction may be had for any offense sufficiently alleged therein or for an attempt to commit such offense, and the accused may be convicted or such court may accept a plea of guilty for any of such offenses.”
See footnote 1.
Rules of statutory construction apply with equal force to Practice Book provisions. State v. Carey, 25 Conn. App. 421, 426, 594 A.2d 1011 (1991), rev’d, 222 Conn. 299, 610 A.2d 1147 (1992).
See footnote 5.
The jury charge included the following language: “Our law provides that a person is guilty of an attempt to commit a crime if, acting with the same kind of mental state required for commission of the crime, he intentionally does anything which, under the circumstances as he believes them to be, is an act constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. In order for you to convict on this offense of attempted sexual assault in the first degree, then, you must be satisfied, first, that the defendant acted with the intent to engage in sexual intercourse, as I’ve defined that term
See footnote 5.
See footnote 3.
The jury charge provided in relevant part: “Now, turning to the second count, the defendant is charged with the offense of injury or risk of injury to a child, in violation of our General Statutes. Insofar as the statute applies here, it says, ‘Any person who does any act likely to impair the health or morals of a child under the age of sixteen years is guilty of this offense.’ This statute prohibits act directly—acts rather—directly perpetrated on the person of a minor under the age of sixteen and injurious to . . . her health. . . .
“The jury has to unanimously agree on at least one set of facts sufficient to satisfy each of the necessary elements of the crime charged, and in this case the state alleged the alcohol to drink, the fondling of genital and anal areas, and the penetration both vaginally and anally with the defendant’s finger or fingers.”
The defendant concedes that the evidence was sufficient to allow the jury to find that the defendant had violated § 53-21 by fondling the victim’s genital and anal areas. We must address the defendant’s claim as to the possibility that giving alcohol to the victim was afirst prong violation because when the jury is charged with two modes of committing a crime, and each mode involves different elements, the possibility that the conviction could rest on either mode requires a properjury instruction on each mode or the conviction does not comport with due process. See Yates v. United States, 354 U.S. 298, 312, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957).
The state provided evidence of the possible detrimental physical effects of alcohol on a four year old child.
Another attorney from the office of the defendant’s trial attorney was present when the jury returned its verdict. That attorney, however, requested a continuance so the defendant could be represented by his trial counsel during the sentencing proceedings.
See footnote 5.
Our conclusion that the record is not adequate to establish that the trial court failed to follow the statutory procedures also dictates that plain error review pursuant to Practice Book § 4185 is inappropriate. Compare State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980) (“[wjhere the legislature has chosen specific means to effectuate a fundamental right, failure to follow the mandatory provisions of the statute is plain error, reviewable by this court”).