58 Conn. App. 585 | Conn. App. Ct. | 2000
Opinion
The defendant, James Rocco, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and kidnapping in the second degree in violation of General Statutes § 53a-94.
The jury reasonably could have found the following facts. The victim had a romantic relationship with the defendant for five months. On March 25,1995, the cou-
Shortly after 9 p.m., the victim went out with a male friend. She returned to her apartment between 1 a.m. and 1:30 a.m., where, unbeknownst to her, the defendant was waiting.
The defendant then took a knife and cut off the victim’s clothes, ripped off her brassiere and left her sitting in the middle of the floor. He then ordered the victim to take a shower because she was “dirty, scummy, crummy.” When she told him that she had finished showering, he told her, “You’re not done, clean up with this,” and he handed her an old enema bag that had been in the garage. The victim refused to use the enema bag, but the defendant filled it with water and forced the tube into her vagina. After the water had completely drained out of the bag, the defendant filled it again with ice cold water and repeated the process.
The defendant was subsequently arrested and charged with sexual assault in the first degree, kidnapping in the second degree, attempt to commit assault in the first degree, assault in the second degree and tampering with a witness. The defendant was convicted of all of the charges except tampering with a witness. This appeal followed.
I
The defendant claims that his conviction of sexual assault in the first degree under § 53a-70 (a) (1) should be vacated because the statute is unconstitutionally vague as applied to the facts of this case. Specifically, he claims that he was not given fair warning that his conduct was violative of the statute. We disagree.
Although the defendant’s claim was not raised at trial, we will review it pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, our
The first two prongs of Golding are satisfied. First, the record is adequate to review the defendant’s claim because it reflects both that he was convicted under § 53a-70 (a) (1) and the basis of his conviction. See State v. Indrisano, 228 Conn. 795, 800, 640 A.2d 986 (1994). Second, a claim that a statute is unconstitutionally vague implicates a defendant’s fundamental due process right to fair warning. See State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988). The defendant, however, has failed to meet the third requirement of Golding that a constitutional violation clearly exists and clearly deprived him of a fair trial.
To demonstrate that the statute is unconstitutionally vague as applied to him, the defendant “must. . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the [victim] of arbitrary and discriminatory enforcement.” (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 322, 732 A.2d 144 (1999). “As a matter of the due process of law required by our federal and state constitutions, a penal statute must be sufficiently definite to enable a person to know what conduct he [or she] must avoid. ... [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must neces
We conclude that the defendant had fair warning that § 53a-70 (a) (1) prohibited his conduct.
The defendant contends that he was not given fair warning that his conduct violated the statute because “the insertion of the end of the hose from the enema bag was for the purpose of cleaning the victim” and was not sexual in nature. Whatever purpose motivated the defendant’s conduct, § 53a-70 (a) (1) makes it clear to a person of common intelligence that forcible penetration of the vagina with an object is prohibited. See State v. Faria, 47 Conn. App. 159, 168, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998) (“[t]he intent required for sexual assault is not sexual gratification but the intent to use force”). Accordingly, the defendant should have known that forcing a tube into the victim’s vagina was violative of the statute.
II
The defendant next claims that the court improperly denied his motion for judgment of acquittal because
“We review a claim of insufficiency of the evidence in accordance with a well established two part test. We first construe the evidence presented at trial in a manner favorable to sustaining the verdict, and then determine whether the jury could reasonably have found, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sauris, 227 Conn. 389, 395, 631 A.2d 238 (1993).
After reviewing the evidence presented at trial and the inferences reasonably drawn therefrom, the jury reasonably could have concluded, beyond a reasonable doubt, that the defendant abducted the victim. General Statutes § 53a-94 (a) provides: “A person is guilty of kidnapping in the second degree when he abducts another person.” General Statutes § 53a-91 (2) provides that abduct “means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.”
The evidence presented at trial was that the defendant refused to let the victim leave her apartment to seek medical attention and, earlier, refused to let her leave her living room to go to the bathroom. He also took all of the telephones off their receivers and allowed the victim to call her children only if she agreed to say what he told her to say. The defendant restrained the victim by beating her with a hammer and threatening to take her life. This evidence provides an ample basis
The judgment is affirmed.
In this opinion the other judges concurred.
The defendant also was convicted of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). He did not appeal from those convictions.
The victim testified that the defendant occasionally stayed at her apartment and kept some of his belongings there.
The defendant supports his claim that the statute is unconstitutionally vague by positing the hypothetical that “a parent who inserts a thermometer into [the rear end of] a child would [commit] sexual assault whether it is by the use of force or not.” We do not consider that hypothetical situation here because the defendant does not contend that his first amendment rights were implicated. “Where a statute is attacked as void for vagueness, and no first amendment rights are implicated, the constitutionality of the statute is determined by its applicability to the particular facts at issue.” State v. Ryan, 48 Conn. App. 148, 153, 709 A.2d 21, cert. denied, 244 Conn. 930, 711 A.2d 729, cert. denied, 525 U.S. 876, 119 S. Ct. 179, 142 L. Ed. 2d 146 (1998).
We analyze the defendant’s claim only with respect to his claim of inadequate notice of the prohibited conduct because the defendant has not alleged that he was the victim of arbitrary and discriminatory enforcement under § 53a-70 (a) (1).