State v. NicholsState v. Nichols
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Syllabus
Convicted, after a jury trial, of the crimes of sexual assault in the fourth degree and risk of injury to a child, the defendant appealed to this court, claiming, inter alia, that the evidence was insufficient to demonstrate that he intentionally touched the minor victim for the purpose of the defendant‘s sexual gratification. After the minor victim began exhibiting behavioral problems, his mother accepted an offer from the defendant and his wife to have the victim live with them for two weeks to help address those problems. During that time, the defendant entered the bathroom where the victim had showered and beat his buttocks, after which he led the victim to the defendant‘s bedroom and made him sleep in bed with the defendant and his wife. While in bed, the defendant unbuttoned the victim‘s pants, rubbed the victim‘s legs and the side of his buttocks, and repeatedly touched the victim‘s penis, events that reoccurred almost every night during the victim‘s stay at the defendant‘s home. At trial, the victim yelled an expletive during the defendant‘s testimony, after which the victim left the courtroom demonstrably upset. Defense counsel moved for a mistrial on the ground that the victim‘s outburst had irreparably harmed the defendant‘s right to a fair trial. The court denied the motion for a mistrial and gave the jury a curative instruction directing it to disregard the outburst. Held:
1. The defendant could not prevail on his claim that the trial court abused its discretion when it denied his motion for a mistrial; the victim‘s outburst during the defendant‘s testimony, although inappropriate, was brief and isolated, the court did not observe any improper interaction between the jury and the victim or his mother, and the defendant did not demonstrate any indication that the jury failed to abide by the court‘s curative instruction, which obviated any possible harm to the defendant.
2. The evidence was sufficient to support the defendant‘s conviction of sexual assault in the fourth degree: the victim testified that the defendant forced him into the defendant‘s bed and sexually assaulted him there nearly every night during his stay at the defendant‘s home, conduct that easily justified a reasonable inference that the defendant did not touch the victim‘s penis for some reason other than to obtain sexual gratification; moreover, when the victim informed the defendant that he intended to report his conduct, the defendant made statements that caused the victim to fear that the defendant would harm the victim‘s mother, and the defendant‘s rebuke of his wife when she expressed discomfort with his conduct, as well as the recurrent nature of that conduct, further supported a reasonable inference that the defendant‘s intentional touching of the victim was for the defendant‘s sexual gratification.
Argued May 15—officially released June 18, 2024
Procedural History
Substitute information charging the defendant with two counts of the crime of sexual assault in the fourth degree and one count of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of Hartford, geographical area number twelve, and transferred to the Superior Court in the judicial district of Hartford, geographical area number fourteen; thereafter, the case was tried to the jury before Gustafson, J.; subsequently, the court denied the defendant‘s motions for a judgment of acquittal and for a mistrial; verdict of guilty; thereafter, the court denied the defendant‘s motion for a judgment of acquittal or a new trial; subsequently, the court, Gustafson, J., vacated the conviction as to one count of sexual assault in the fourth degree and rendered judgment of guilty of one count each of sexual assault in the fourth degree and risk of injury to a child, from which the defendant appealed to this court. Affirmed.
Bharbara Viegas Rocha and Connor R. Reed, certified legal interns, with whom were Ronald G. Weller, senior assistant state‘s attorney, and, on the brief, Sharmese L. Walcott, state‘s attorney, and Michael W. Riley, senior assistant state‘s attorney, for the appellee (state).
Opinion
MOLL, J. The defendant, Robert Lee Nichols, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of
The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of the defendant‘s claims. The victim and his mother became acquainted with the defendant in 2007 while the victim attended an after-school program operated by the defendant. Additionally, the victim participated in a summer program also operated by the defendant. In the summer of 2010, the victim was exhibiting behavioral problems, including struggling to control his temper, getting into fights, and having arguments with his mother, who was raising the victim as a single mother. The victim‘s mother discussed the victim‘s issues with the defendant and his wife, Tamara Nichols (Tamara), both of whom offered to have the victim live with them for two weeks to help address his ongoing problems. The victim‘s mother agreed to the arrangement, and the victim proceeded to live with the defendant and Tamara in their home in Manchester for approximately ten days during the summer in 2010. At that time, the victim was eleven years old and the defendant was thirty-one years old.
When the victim first arrived at the defendant‘s home, the defendant permitted the victim to call his mother only three times per day. Nevertheless, during the first night, the victim, feeling scared and homesick, called his mother in violation of the defendant‘s rule. The following day, the victim‘s mother mentioned to the defendant that the victim had called her the previous night. Thereafter, the defendant prohibited the victim from calling home at all.
The victim engaged in various activities during the daytime while staying at the defendant‘s home. On his second day at the defendant‘s home, the victim performed landscaping work outside. Afterward, the victim went inside and showered. When the victim exited the shower, he discovered that the defendant was in the bathroom with him. The defendant then repeatedly beat the victim‘s buttocks with his hands. After the victim had dressed himself, the defendant led the victim to the defendant‘s bedroom and made the victim sleep in bed with both the defendant and Tamara. The victim had slept in a guest room the previous night.4
Prior to the end of his stay at the defendant‘s home, the victim conveyed to the defendant that he intended to report the defendant‘s actions. The defendant responded by indicating that he knew the victim‘s mother and would find her if anything happened. This statement made the victim feel threatened and concerned that the defendant was going to harm his mother. After the victim had returned to his home following his stay with the defendant, the victim‘s grandmother noticed injuries on his body. When the victim‘s grandmother inquired about the injuries, the victim, feeling worried about his mother, told his grandmother that he had injured himself by falling.
In 2019, Detective Claire Hearn received a complaint from the victim, which prompted her to commence an investigation with regard to the events that had occurred in the summer of 2010. After taking a statement from the victim, Hearn prepared an arrest warrant for the defendant. The defendant subsequently was arrested, and in its operative amended long form information (operative information), the state charged the defendant with two counts of sexual assault in the fourth degree in violation of
The matter was tried to a jury on September 26, 2022. During its case-in-chief, the state called as witnesses (1) the victim, (2) the victim‘s mother, and (3) Hearn.5 During the defendant‘s case-in-chief, the defense called as witnesses (1) the defendant and (2) Tamara. The trial court, Gustafson, J., admitted two exhibits in full, namely, a photograph submitted by the state and a video recording submitted by the defendant. During trial, defense counsel orally moved for a mistrial on the basis of an outburst by the victim that had occurred during the defendant‘s direct examination. Following argument, the court denied that motion.6 The next day, the jury found the defendant guilty on all counts. On October 17, 2022, the defendant filed a postverdict motion seeking (1) a judgment of acquittal on the two sexual assault counts for lack of sufficient evidence or, in the alternative, (2) a new trial on the ground that the court had deprived him of a fair trial in denying his motion for a mistrial. On November 22, 2022, the court denied that motion.7
the defendant to a total effective sentence of twenty years of incarceration, execution suspended after eight years, five years of which was a mandatory minimum, followed by ten years of probation. This appeal followed. Additional procedural history will be set forth as necessary.
I
The defendant first claims that the trial court abused its discretion in denying his motion for a mistrial stemming from an outburst by the victim while the defendant was testifying at trial. We disagree.
The following additional procedural history is relevant to our resolution of this claim. On direct examination, the defendant testified that, while the victim was at his home during the period in question, the victim experienced an issue with showering. In particular, the defendant testified: “The issue with showering was, ah, prior to [the victim] coming to arrive at my home that weekend, I was asked by [his] mom if it was possible for me to help show [the victim] how to take a shower because, up to that point, [the victim] had refused and had never done it. And [the victim‘s mother] just wanted to know if it was possible, could I help him. So, I told her okay. Ah, you know, I‘ll try and we‘ll see.”9
Immediately following that testimony, the trial transcript reflects that (1) there was “some banging in the courtroom,” (2) the victim stated, “[t]his is bullshit,”10 (3) the marshal in the courtroom conferred with the victim, and (4) counsel approached the bench for an off-the-record conversation. Following the off-the-record conversation, the court issued the following instruction to the jury: “So, ladies and gentlemen of the jury, outbursts in court are not to be considered as evidence and be disregarded by you. Thank you.” Defense counsel then continued with the defendant‘s examination.
Later in the afternoon, following a lunch recess, defense counsel orally moved for a
defendant‘s testimony, the court observed the victim abruptly leave the courtroom while looking “demonstrably upset,” although the court could not hear what the victim had said and did not hear anything else, (2) the court, while paying “pretty careful attention,” did not observe the jury exchange looks with either the victim or his mother during any testimony, and (3) the court “anticipate[d] [that] it won‘t happen again,” as the state had spoken to the victim and his mother12 and, as the court iterated, “the decorum that we need in the courtroom is nothing but professionalism.” The court further stated that it had instructed the jury to disregard the victim‘s outburst. In sum, the court determined that it “[did not] think [the defendant‘s right to] a fair trial [had been] irreparably harmed by the very limited, two second outburst that [the court] did provide a curative instruction on.”
In his postverdict motion seeking, inter alia, a new trial, the defendant contended that the court improperly had denied his motion for a mistrial because the victim‘s outburst had “resulted in substantial and irreparable prejudice to the defendant‘s case. Despite the court‘s curative instruction, in the context of the proceedings as a whole, including the very short length of the trial and the contest of veracity between the defendant‘s testimony and the [victim‘s] testimony, the conduct was such that the jury reasonably could not be presumed to have disregarded it.” In denying the postverdict motion as to that ground, the court stated that, (1) during the defendant‘s testimony at issue, the victim became “demonstrably upset,” “exclaimed ‘bullshit’ as he walked approximately thirty feet to the exit [of the
courtroom],” and “angrily left the courtroom,” (2) notwithstanding the defendant‘s contention “that [the victim] and his mother were near the jury and were animatedly reacting to the defendant‘s testimony, the court did not observe any other distracting or inappropriate conduct prior to or after the subject outburst,” (3) following a sidebar with counsel, the court issued a curative instruction to the jury, (4) there were no additional disturbances, and (5) neither party requested any additional instructions to the jury, and no additional instructions were given. The court further stated that, notwithstanding the victim‘s “patently improper” outburst, the court immediately instructed the jury to disregard
The defendant claims on appeal that the court abused its discretion in denying his motion for a mistrial, maintaining that (1) the victim‘s outburst during the defendant‘s testimony “resulted in substantial and irreparable prejudice” and (2) notwithstanding the court‘s issuance of a curative instruction to the jury following the outburst, in light of the circumstances, including the short length of the trial and the credibility contest between the victim and the defendant at trial, the jury reasonably could not be presumed to have disregarded the outburst. We are not persuaded.
The following legal principles and standard of review govern our review of the defendant‘s claim. Practice Book § 42-43 provides in relevant part: “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant‘s case . . . .” The defendant bears the burden to establish prejudice.13 See State v. Gore, 342 Conn. 129, 168-69, 269 A.3d 1 (2022). “We review a trial court‘s ruling on a motion for a mistrial under the abuse of discretion standard. . . . When reviewing a ruling on a mistrial motion, we must ask whether the trial court considered the totality of the circumstances in arriving at its decision. . . . Further, our review must take into account the trial judge‘s superior opportunity to assess the proceedings over which he or she has personally presided.” (Citations omitted; internal quotation marks omitted.) State v. Henderson, 348 Conn. 648, 666–67, 309 A.3d 1208 (2024). “Every reasonable presumption will be given in favor of the trial court‘s ruling . . . .” (Internal quotation marks omitted.) State v. Anderson, 163 Conn. App. 783, 791, 134 A.3d 741, cert. denied, 321 Conn. 909, 138 A.3d 931 (2016).
“Furthermore, [w]hile the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot
have a fair trial . . . and the whole proceedings are vitiated. . . . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is
In resolving the defendant‘s claim, we are guided by our Supreme Court‘s decision in State v. Savage, 161 Conn. 445, 290 A.2d 221 (1971). In Savage, the defendant, who was charged with incest, testified at trial. Id., 446, 447-48. As the defendant was leaving the witness stand following his testimony, the complainant, who was the defendant‘s daughter, “screamed that he was a liar and had not told the truth.” Id., 448-49. The trial court excused the jury, which had been present for the complainant‘s outburst, and the defendant moved for a mistrial, which the court denied. Id., 449. After recalling the jury, the court “instructed [the jury] at length to disregard the complainant‘s outburst. The court again so instructed the jury during its final charge.” Id. On appeal, our Supreme Court upheld the trial court‘s denial of the defendant‘s motion for a mistrial, concluding that “[t]he [trial] court‘s careful and correct instructions to the jury to disregard the complainant‘s outburst obviated any possible harm to the defendant from this outburst . . . .” Id.
In light of Savage, as well as the totality of the circumstances in the present case, we conclude that the court properly denied the defendant‘s motion for a mistrial. As the court found, although the victim‘s outburst in the courtroom was inappropriate, the outburst was brief and isolated, and the court did not observe any improper interaction between the jury and the victim or his mother.14 Moreover, immediately following the sidebar with counsel that had occurred after the victim‘s outburst, the court issued a curative instruction to the jury directing it to disregard the outburst, as it did not constitute evidence.15 “[A]s a general matter, the jury is presumed to follow the court‘s curative instructions in the absence of some indication to the contrary.” (Internal quotation marks omitted.) State v. Roberto Q., 170 Conn. App. 733, 746, 155 A.3d 756, cert. denied, 325 Conn. 910, 158 A.3d 320 (2017). The defendant has not demonstrated any indication that the jury failed to abide by the court‘s curative instruction, which “obviated any possible harm” to the defendant from the victim‘s outburst. State v. Savage, supra, 161 Conn. 449.
In sum, we
II
The defendant next claims that there was insufficient evidence to support his conviction of sexual assault in
the fourth degree in violation of
The following additional procedural history is relevant to our resolution of this claim. In support of count
one, the state alleged that “during the summer of 2010 in Manchester . . . the defendant intentionally subjected [the victim] to sexual contact, who was eleven years old and the defendant is more than two years older than [the victim]. This sexual contact was the touching of [the victim‘s] genitalia by the defendant for the sexual gratification of the defendant.”
In his postverdict motion seeking, inter alia, a judgment of acquittal as to his conviction on count one, the defendant asserted that “the evidence [was] not sufficient to demonstrate . . . that [he] had the specific intent to obtain sexual gratification from the sexual contact . . . at the time of the alleged offense . . . .” (Emphasis omitted.) In denying the motion as to that ground, the court determined that the trial evidence, along with all inferences reasonably drawn therefrom, when viewed in the light most favorable to sustaining the verdict, established that the defendant had touched the victim‘s genital area for the purpose of his sexual gratification, as the defendant‘s conduct (1) occurred at night in the defendant‘s bed and (2) included rubbing the victim‘s penis and buttocks.
On appeal, the defendant concedes that, on the basis of the evidence, the jury reasonably could have found, inter alia,
“We begin our analysis by setting forth the relevant legal principles and standard of review. The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a [two part] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .
“We also note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .
“Additionally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact‘s] verdict of guilty.” (Internal quotation marks omitted.) State v. Thomas S., 222 Conn. App. 201, 211–12, 304 A.3d 513 (2023), cert. denied, 348 Conn. 943, 307 A.3d 909 (2024).
“The specific intent to subject a person under thirteen years of age to sexual contact, when the actor is more than two years older than the victim, is an essential element of the crime of sexual assault in the fourth degree [in violation of
Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that there was sufficient evidence to support a reasonable inference that the defendant intentionally touched the victim‘s genitalia for the purpose of his sexual gratification. The victim‘s testimony17 established that, starting on the third evening of the victim‘s approximate ten day stay at the defendant‘s home and reoccurring every night thereafter, except for Sundays, the defendant (1) forced the victim into an intimate location, that is, the defendant‘s bed in his bedroom, at nighttime, accompanied by Tamara, and (2) unbuttoned the victim‘s pants and repeatedly touched the victim‘s penis and rubbed the victim‘s legs and the side of the victim‘s buttocks. These circumstances easily justify a reasonable inference that the defendant did not touch the victim‘s penis for some reason other than to obtain sexual gratification.
In addition, the victim testified that when (1) he informed the defendant that he intended to report the defendant‘s conduct, the defendant made statements regarding his mother that caused him to fear that the defendant would harm his mother, and (2) Tamara expressed discomfort with the defendant‘s actions, the defendant told her to “shut up,” that “this is his house,”
and that “[h]e does what he wants.” This evidence further supports a reasonable inference that the defendant‘s intentional touching of the victim was for the purpose of the defendant‘s sexual gratification.18 Otherwise, if the conduct had been for some nonsexual purpose, there
Finally, the reasonableness of these inferences is further bolstered by the recurrent nature of the defendant‘s conduct. See State v. Roy D. L., supra, 339 Conn. 854 (agreeing with trial court‘s statement that “‘repeated and almost ritualistic nature” of defendant‘s conduct made inference of sexual gratification “‘particularly reasonable “).
In sum, we reject the defendant‘s claim that there was insufficient evidence to sustain his conviction of sexual assault in the fourth degree as alleged in count one.
The judgment is affirmed.
In this opinion the other judges concurred.