80 Conn. App. 87 | Conn. App. Ct. | 2003
Opinion
The defendant, Mickey Minor, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1999) § 53a-70 (a) (2)
From the evidence produced at trial, the jury reasonably could have found the following facts. The victim
On another occasion, during a game of hide-and-seek with the defendant and the victim’s brother, the victim ran into her brother’s room and closed the door. The defendant was behind the door. He picked her up, unbuttoned her pants, took her underpants down and licked her “private.” He then stuck his tongue in her mouth and, as she was pulling up her pants, asked, “Are you going to tell?” She testified that he ended his visit with the family and left her home later that day. The victim did not immediately tell her mother about those events because she was afraid her mother might get mad at her. She did tell her mother about six months later, according to other testimony and evidence, and she and her mother went to the police station to report the incidents. The victim spoke of the events to a woman at the police station, to a friend of her mother and to Elizabeth Donahue, a physician.
The victim’s mother provided constancy of accusation testimony as to what the victim had told her about the sexual acts. The victim did not testify in court as to the dates on which those events had occurred, but indicated that the incident in bed happened first and that the hide-and-seek incident occurred on the day the defendant left. The mother testified that the bed incident must have happened the day before the defendant ended his stay. The day after the victim told her mother, the victim again recounted the two incidents the next day before they went to the police station.
I
The standard of review for an insufficiency of the evidence claim involves a two part test. First, the evidence is to be construed in the light most favorable to sustaining the verdict. Second, we must determine whether the jury, from the facts that were found and the reasonable inferences garnered from the evidence, could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Montgomery, 254 Conn. 694, 732, 759 A.2d 995 (2000).
The defendant in his brief makes two underlying assertions as to the sufficiency of the evidence. First, he claims that penetration was not proved. Second, he asserts that the exact time that the crimes took place should have been proved because without that specificity, he was deprived of a potential alibi defense.
Certain definitional criteria will assist us in the analysis of the defendant’s first assertion with regard to sufficiency of the evidence. “Sexual intercourse,” according to General Statutes § 53a-65, means vaginal intercourse, anal intercourse, fellatio or cunnilingus. Penetration is not an essential element of the crime of sexual assault in the first degree when cunnilingus is charged. State v. Wilcox, 254 Conn. 441, 467, 758 A.2d 824 (2000). Therefore, the state did not need to prove that penetration took place for the jury to convict the defendant.
Although the state has a duty to inform the defendant of the time when an offense allegedly was committed, the state need not choose a particular time if the best information is imprecise. State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). An alibi defense does not create a mandatory requirement that the state limit the time in the information more narrowly than the evidence warrants. Id., 520. In this case, the jury need not have found that the crimes occurred on a specific date or at a specific time, but only that they occurred within the time frame as alleged in the substitute information, which was between January 14 and 26, 2000.
The second reason is that the defendant’s claim is unpreserved, not having been raised at trial, and is a claim that cannot be reviewed under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because it is an evidentiary claim and not constitutional. See State v. Troupe, 237 Conn. 284, 305, 677 A.2d 917 (1996); State
II
The defendant next claims that he was sentenced improperly to a ten year mandatory minimum term of imprisonment pursuant to § 53a-70 (b) on his conviction of sexual assault in the first degree. We disagree.
The following facts are relevant to our resolution of the defendant’s claim. The defendant was sentenced to a term of twenty years incarceration, ten years of which were the mandatory minimum, on the conviction of sexual assault in the first degree. Prior to sentencing, the defendant filed a motion to preclude the imposition of the mandatory ten year sentence under § 53a-70 (b) when the victim is younger than the age of ten years.
The legislature, when it provides for criminal penalties, is entitled to conclude that general deterrence is better served by a harsher penalty for one crime as opposed to another. A harsher sentence may be necessary to deter sexual assault in the first degree against a child, which may be more prevalent but less easily discovered than aggravated sexual assault, which usually requires immediate police action when it occurs.
The judgment is affirmed.
In this opinion the other judges concurred.
The substitute information charged in count one that “on a date between approximately January 14, 2000, and approximately January 26, 2000, in the Town of Naugatuck, the defendant (whose date of birth is April 8, 1963) engaged in sexual intercourse, to wit cunnilingus, with another person (hereafter L.C.) whose date of birth is July 23, 1992, and who was, therefore under the age of thirteen at the time and more than two years younger than the defendant.”
Counts two and three of the substitute information alleged risk of injury to a child. The information charged in count two that “on a date between approximately January 14, 2000, and approximately January 26,2000, in the Town of Naugatuck, the defendant had contact with the intimate parts of a child under the age of sixteen years, to wit, he touched said child (hereafter L.C.) whose date of birth is July 23, 1992 and who was, therefore, under the age of sixteen on her genitals in a sexual and indecent manner likely to impair the morals of said child.”
Count three charged that “on a date or dates between approximately January 14,2000, and approximately January 26,2000, in the Town of Nauga-tuck, the defendant subjected a child under the age of sixteen years to contact with his intimate parts, to wit, he had said child (hereafter L.C.) whose date of birth is July 23, 1992 and who was, therefore, under the age of sixteen at the time, touch his penis in a sexual and indecent manner likely to impair the morals of said child.”
It is not certain from the defendant’s brief whether he is challenging his conviction of all three counts or of sexual assault in the first degree only. In the trial court, his motion for a judgment of acquittal at the close of the state’s case challenged the latter count of the information only. We treat his claim as involving all three charges.
The defendant’s argument as to insufficiency of the evidence hinges on the alleged improper use of constancy of accusation testimony to prove the time of the crime or to prove that the crimes, in fact, occurred. Accordingly, the first two claims are discussed together. See part I.
In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
Counts two and three did not allege penetration, and the state therefore was not required to prove that penetration occurred to convict the defendant of risk of injury to a child.
A similar case recently decided by this court, as to which certification to appeal was granted, is distinguishable from this case. The state’s petition for certification to appeal was granted by our Supreme Court in State v. Gibson, 75 Conn. App. 103, 815 A.2d 172, cert. granted, 263 Conn. 906, 819 A.2d 840 (2003), limited to the following issue: “Did the Appellate Court properly conclude that the conviction on the third and fourth counts must be set aside on the ground of constitutional error in the court’s jury instructions?” State v. Gibson, 263 Conn. 906, 819 A.2d 840 (2003).
The conviction in Gibson was set aside by this court because of the trial court’s failure to give a limiting instruction as to prior misconduct evidence involving the same victim and the same crime one or two years prior to the date in the information, together with a jury instruction asserting that it
That holding, even if it eventually is reversed by our Supreme Court, does not affect the conclusion in this case that the state did not need to plead and to prove that the crime occurred on a specific date during the time interval between the two dates alleged in the information.
The constancy of accusation doctrine allows a witness to whom the victim of a sex crime has confided the details of the crime to testify in court about what the victim told the witness as an aid in assessing the credibility of the victim. The doctrine is not strictly an exception to the hearsay rule because the testimony is not admitted to prove the truth of the testimony of the witness. The doctrine is now limited in Connecticut to allow testimony only as to the fact and timing of the victim’s complaint or as to details necessary to associate the victim’s complaint with the pending charge, for example, the time and place of the attack or the identity of the defendant. Other testimony of a witness who was the confidante of the victim is limited to corroboration of the victim’s testimony, but cannot be used for substantive purposes. State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996) (en banc).
General Statutes (Rev. to 1999) § 53a-70 (b), as amended by Public Acts, Spec. Sess., June, 1999, No. 99-2, § 49, provides: “Sexual assault in the first degree is a class B felony for which two years 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, and any person found guilty under this section shall be sentenced to a term of imprisonment and a period of special parole pursuant to subsection (b) of section 53a-28 which together constitute a sentence of at least ten years.”
The crimes occurred in 2000. General Statutes (Rev. to 1999) § 53a-70a (b), as amended by Public Acts, Spec. Sess., June, 1999, No. 99-2, § 50, which was then applicable, provides in relevant part: “Aggravated sexual assault 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 . . . .”
The current version of General Statutes § 53a-70a (b), subsequent to its amendment by P.A. 02-138, provides in relevant part: “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, except that, if such person committed sexual assault in the first degree by violating subdivision (1) of subsection (a) of section 53a-70 . . . and the victim of the offense is under sixteen years of age, twenty years of the sentence imposed may not be suspended or reduced by the court. Any person found guilty under this section shall be sentenced to a period of special parole pursuant to subsection (b) of section 53a-28 of at least five years.”
The defendant in Gibson also filed a petition for certification to appeal, which was denied. State v. Gibson, 263 Conn. 906, 819 A.2d 840 (2003).
General Statutes § 53a-70a (a) provides: “Aperson is guilty of aggravated sexual assault in the first degree when such person commits sexual assault in the first degree as provided in section 53a-70, and in the commission of such offense (1) such person uses or is armed with and threatens the use of or displays or represents by such person’s words or conduct that such person possesses a deadly weapon, (2) with intent to disfigure the victim