State v. Albert

• Decision Date: 04 May 2000
• Docket Number: (SC 16059)
• Citation: 750 A.2d 1037,252 Conn. 795
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. RONALD ALBERT

252 Conn. 795

750 A.2d 1037

STATE OF CONNECTICUT v. RONALD ALBERT

(SC 16059)

Supreme Court of Connecticut.

Argued February 16, 2000.

Officially released May 4, 2000¹.

McDonald, C. J., and Borden, Palmer, Sullivan and Callahan, JS. Suzanne Zitser, assistant public defender, with whom was Martin Zeldis, assistant public defender, for the appellant (defendant).

Carolyn K. Longstreth, senior assistant state's attorney, with whom were Anne F. Mahoney, assistant state's attorney, and, on the brief, James E. Thomas, state's attorney, for the appellee (state).

Opinion

SULLIVAN, J.

The dispositive issue in this certified appeal is whether the Appellate Court properly concluded that the trial court correctly had instructed the jury regarding the meaning of "sexual intercourse," as defined in General Statutes (Rev. to 1991) § 53a-65 (2),² under the facts of this case. The defendant, Ronald Albert, appeals from the judgment of the Appellate Court affirming his conviction by the trial court, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2),'³ and risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21.⁴ Because we hold that the Appellate Court properly concluded that the trial court correctly had instructed the jury, we affirm the judgment of the Appellate Court.⁵

The Appellate Court's opinion sets forth the following facts that the jury reasonably could have found. "On August 2, 1992, the defendant attended a picnic at Globe Hollow Pond in Manchester with the victim, N, age three, her mother, her father and her brother. [The victim] referred to the defendant, her godfather, as Uncle Ronnie. [The victim] testified that while she and the defendant were swimming, the defendant put his hand underneath [the victim's] bathing suit and touched her `inside' her `crotch' with his index finger. The touching caused pain and [the victim] screamed. After [the victim] screamed, the defendant told her not to tell anyone about the touching. When [the victim] started crying, her father took her out of the water and brought her to her mother. While she was crying, [the victim] said `bad Uncle Ronnie' several times. Physical examinations by physicians shortly thereafter revealed two scrapes on the inside fold of [one of] the labia majora⁶ that were typical of recent sexual abuse." State v. Albert, 50 Conn. App. 715, 718, 719 A.2d 1183 (1998).

The following additional facts and procedural history are necessary to our disposition of this appeal. During cross-examination, defense counsel asked the victim's psychologist, Kevin R. Conter: "Did [the victim] indicate to you if she had any reaction to the touch at the time the touch was allegedly made?" Conter answered: "[The victim] said that it hurt."

The victim's pediatrician, Wanda Merced, testified that she treated the victim on August 4, 1992, two days after the incident in question. Merced testified that, in taking the victim's medical history, the victim had told Merced, in the presence of the victim's mother, that the defendant had touched her "private part." Merced testified that she observed two small scrapes on the victim's labia majora and that the labia majora constituted "the outside of the vagina." Merced further testified that the scrapes were "[a]t the entrance of the vagina," and that they "looked fresh" because "they bled ... when [she] touched them" with a cotton swab. Merced testified that she had marked, on a diagram of the anatomy of the genital area of a female, the location on the victim's labia majora where she had observed the two scrapes. Merced further testified that, if the genital area, as shown in the diagram, were the face of a clock, the scrapes would be located between 5:30 and 6 o'clock. Finally, Merced testified that, when she asked the victim during the August 4, 1992 examination how she got the scrapes, the victim answered that the defendant had touched her "private part."

Frederick B. Berrien, a physician who was qualified as an expert in the field of pediatrics, provided testimony in two areas of relevance to this case. First, Berrien provided expert testimony with regard to the physical structure of the female genital area, genital opening and vagina. To illustrate his testimony, Berrien used the diagram that Merced had used during her testimony. He drew a circle around the area on the diagram that he considered to be the genital area of a female and testified that the labia majora constituted the outermost border of that area. He testified that the labia majora are part of the female genital area and consist of folds of skin that "close over the opening to the vagina," but that the labia majora are not part of the vagina itself. Berrien also testified that, although the labia majora are not part of the genital opening,⁷ the space between the labia was the beginning of the genital opening.⁸ Finally, Berrien testified that, in order to consummate vaginal intercourse, penetration had to be made through all of the labia structures.⁹ Second, Berrien testified regarding the location of the scrapes on the victim that Merced had observed upon examination of the victim. He testified that the scrapes that Merced had noted were in the area of the victim's "posterior fourchette," which he defined as the "posterior position of ... the labia majora." He testified that, if one were to visualize the genital area as the face of a clock, the scrapes "were located at about 5:30" and that "injuries in that area are ... typically involved with sexual abuse." He further testified that, based on his review of the diagram on which Merced had pointed out the location of the two scrapes, the victim's injuries appeared to be on the inside of the fold of the labium majora. He stated that the history given by the victim and the scrapes observed by Merced were consistent with a finger going through the victim's genital opening.

Subsequent to Berrien's testimony, the trial court permitted the state to amend its information. The first count of the original information alleged that the defendant had committed sexual assault in the first degree in violation of § 53a-70 (a) (2) by "penetrat[ing] the vagina of a three ... year old girl with his finger or fingers." (Emphasis added.) The second count of the original information alleged that the defendant had committed risk of injury to a child in violation of § 53-21 by "vaginally penetrating [the victim] with his finger or fingers." (Emphasis added.) The state amended the first count of the information to allege that the defendant had committed sexual assault in the first degree in violation of § 53a-70 (a) (2) by "penetrat[ing] the labia majora of the genitalia of a three ... year old girl with his finger or fingers," and the second count to allege that the defendant had committed risk of injury to a child in violation of § 53-21 by "penetrat[ing] the labia majora of the genitalia of a three ... year old child with his finger or fingers." (Emphasis added.)

After a jury trial, the jury returned a verdict of guilty on both counts of the information. Subsequently, the trial court rendered judgment in accordance with the jury's verdict and imposed a total effective sentence of fifteen years imprisonment, execution suspended after four years, and five years probation. The defendant appealed from the judgment of the trial court to the Appellate Court, which affirmed the trial court's judgment on both counts. See State v. Albert, supra, 50 Conn. App. 717. This certified appeal followed.¹⁰

I

The defendant claims that the trial court improperly instructed the jury on the meaning of the term sexual intercourse, as defined in General Statutes (Rev. to 1991) § 53a-65 (2).¹¹ The state claims that the trial court properly instructed the jury on the meaning of this term. As both parties recognize, in order to determine whether the trial court correctly instructed the jury, we first must interpret the statute defining the term sexual intercourse, namely, § 53a-65 (2). The defendant argues that a "touching" of the labia majora cannot support a finding that sexual intercourse occurred by way of digital penetration of the genital opening. Rather, the defendant argues that, under the facts of this case, in order to penetrate the genital opening, there must be evidence "that the defendant put his finger beyond the labia majora...." Finally, the defendant argues that "there was no evidence presented that the defendant did anything other than touch the surface of [the victim's] labia majora."

The state argues that digital penetration of the labia majora constitutes penetration of the genital opening and, therefore, is sexual intercourse within the meaning of § 53a-65 (2). The state also argues that the evidence supported the conclusion that there was penetration of the victim's labia majora, and refutes "any ... claim [by the defendant] that the touching was a mere contact with the exterior surface of the labia." We agree with the state.

"Statutory interpretation is a matter of law over which this court's review is plenary.... In construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 79, 84, 743 A.2d 146 (1999). "[A]lthough we recognize the fundamental principle that [penal] statutes are to be construed strictly, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident ...