State v. Kirk R.

• Decision Date: 19 October 2004
• Docket Number: No. 16940.,16940.
• Citation: 271 Conn. 499,857 A.2d 908
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. KIRK R.

857 A.2d 908

271 Conn. 499

STATE of Connecticut v. KIRK R.¹

No. 16940.

Supreme Court of Connecticut.

Argued March 11, 2004.

Decided October 19, 2004.

Donald D. Dakers, special public defender, with whom was Jason Cyrulnik, law student intern, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Stephen J. Sedensky III, senior assistant state's attorney, for the appellee (state).

BORDEN, NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

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 Statutes (Rev. to 1997) § 53a-70 (a)(2),³ and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21(2).⁴ The defendant claims that the Appellate Court improperly concluded that § 53a-70 (b), which provides for a mandatory minimum sentence of ten years imprisonment if the victim is less than ten years of age, did not require a finding by the jury, as opposed to a finding by the sentencing court, that the victims were in fact less than ten years of age.⁵ We agree with the defendant that the issue of whether the victims were less than ten years of age should have been submitted to the jury. We affirm the judgment of the Appellate Court, however, because we conclude that the absence of such a jury finding in the present case was harmless beyond a reasonable doubt.

The defendant, Kirk R., was charged with two counts of sexual assault in the first degree and two counts of 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., at 386, 812 A.2d 113. 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 another 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 mandatory minimum sentence under § 53a-70 (b) without submitting the question of the victims' ages to the jury.⁸State v. Kirk R., supra, 74 Conn.App. at 379, 812 A.2d 113. 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, 74 Conn.App. at 385, 812 A.2d 113. 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., at 386, 812 A.2d 113. Accordingly, the Appellate Court affirmed the trial court's judgment of conviction. Id., at 391, 812 A.2d 113.

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 a 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 under § 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 Practice Book § 60-5.¹³ Essentially, the defendant claims that he was deprived of a jury determination regarding an element of § 53a-70 (a). It is well settled that a criminal defendant is constitutionally entitled "to a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." (Internal quotation marks omitted.) Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); see In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ("[d]ue [p]rocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged"); Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (sixth amendment right to trial by jury extended to states through due process clause of fourteenth amendment); see also Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (explaining In re Winship and Duncan). Accordingly, because the defendant's claim is one of constitutional magnitude, and because there is no dispute that the record is adequate for review, the defendant properly may seek to prevail under Golding.¹⁴

"Other than the fact of a prior 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. at 490, 120 S.Ct. 2348. "[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...