State v. Alvaro F.

• Decision Date: 31 March 2009
• Docket Number: No. 18254.,18254.
• Citation: 291 Conn. 1,966 A.2d 712
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. ALVARO F.<SMALL><SUP>1</SUP></SMALL>

966 A.2d 712

291 Conn. 1

STATE of Connecticut v. ALVARO F.¹

No. 18254.

Supreme Court of Connecticut.

Argued January 12, 2009.

Decided March 31, 2009.

Conrad Ost Seifert, special public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Jonathan Benedict, state's attorney and, on the brief, Pamela Esposito, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

NORCOTT, J.

The defendant, Alvaro F., appeals² from the judgment of the trial court, rendered after a jury trial, convicting him of two counts of sexual assault in the fourth degree in violation of General Statutes (Rev to 2005) § 53a-73a (a)(1)(A)³ and two counts of risk of injury to a child in violation of General Statutes (Rev. to 2005) § 53-21(a)(2).⁴ On appeal, the defendant claims that his conviction of, and punishment for, both crimes violated his federal and state constitutional rights against double jeopardy,⁵ because the crimes of risk of injury to a child and sexual assault in the fourth degree constitute the same offense. We disagree and, accordingly, we affirm the judgment of the trial court.

The record reveals the following facts, which the jury reasonably could have found, and the relevant procedural history. On the evening of August 3, 2006, the defendant, the defendant's two stepdaughters, A, age ten, and AL, age seven, and the children's mother, E were sleeping in the family's living room, which was the only air conditioned room in their apartment. The defendant and E slept on a mattress on the floor, while the two children slept on a couch next to the mattress. At approximately 2 a.m., A awoke when she felt the defendant's hand inside her underwear, digitally probing her vaginal area. A attempted to get away from the defendant, but he prevented her from doing so by pushing her down on the couch. When the defendant finally stopped touching her, A went to her sister's room and fell asleep watching television.

Thereafter, A awoke again at approximately 6 a.m., when, for a second time, she felt the defendant's hand underneath her underwear, probing her vaginal area and attempting to penetrate her digitally. The defendant continued touching A in this manner until his cellular telephone rang, at which point he pulled up A's pajamas and left for work. Thereafter, A went into her bedroom and wrote a letter to E telling her what had happened, as she felt unable to express herself verbally regarding the events of the previous night. After reading the letter and discussing it with A the next morning, E called the police, and the defendant subsequently was arrested on his way home from work.

The state charged the defendant with two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2),⁶ two counts of sexual assault in the fourth degree in violation of § 53a-73a (a)(1)(A) and two counts of risk of injury to a child in violation of § 53-21(a)(2). The defendant was tried before a jury, which rendered a verdict convicting him of two counts of sexual assault in the fourth degree and two counts of risk of injury to a child, but acquitting him of the two counts of sexual assault in the first degree.⁷ This appeal followed.

On appeal, the defendant claims that his conviction of both sexual assault in the fourth degree and risk of injury to a child, for each of the two occasions on which he touched A's intimate parts, violated his constitutional protection against double jeopardy.⁸ Specifically, the defendant contends that his conviction of and punishment for both crimes constituted multiple punishments for the same offense because the crime of sexual assault in the fourth degree does not require proof of a fact that risk of injury to a child does not. We disagree, and we conclude, therefore, that the defendant's double jeopardy claim is without merit.

"The fifth amendment to the United States constitution provides in relevant part: No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb.... The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of [the Connecticut constitution] include protection against double jeopardy." (Internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 27, 912 A.2d 992 (2007). We have further "recognized that the [d]ouble [j]eopardy [c]lause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." (Internal quotation marks omitted.) Id. The last protection is at issue in the present case.

In determining whether a defendant has been placed in double jeopardy under the multiple punishments prong, we apply a two step process. "First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." (Internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993). The parties in the present case do not dispute that each occasion on which the defendant sexually assaulted A constituted a separate and distinct act. Accordingly, our analysis focuses on the second prong of the test, namely, whether the defendant's conviction for both crimes with respect to each sexual assault violated the constitutional prohibition against double jeopardy because those crimes constitute the same offense. "The defendant on appeal bears the burden of proving that the prosecutions are for the same offense in law and fact." State v. Snook, 210 Conn. 244, 264, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989).

"Traditionally we have applied the [test set out in Blockburger v. United State, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)] to determine whether two statutes criminalize the same offense ...." State v. Kirsch, 263 Conn. 390, 420, 820 A.2d 236 (2003). Under that test, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, supra, at 304, 52 S.Ct. 180. "This test is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial." (Internal quotation marks omitted.) State v. Bletsch, supra, 281 Conn. at 27-28, 912 A.2d 992. Thus, "[t]he issue, though essentially constitutional, becomes one of statutory construction." (Internal quotation marks omitted.) State v. Woodson, supra, 227 Conn. at 8-9, 629 A.2d 386.

Our courts have addressed the relationship between risk of injury to a child and the various degrees of sexual assault in the context of double jeopardy claims on several occasions, each time concluding that the two crimes do not constitute the same offense. In State v. Bletsch, supra, 281 Conn. at 28-29, 912 A.2d 992, for example, we recently concluded that, under the charging instruments in that case, the crimes of sexual assault in the second degree under General Statutes § 53a-71(a), and risk of injury to a child under § 53-21(a)(2), do not constitute the same offense for double jeopardy purposes because the language of the statutes makes it possible to have "sexual intercourse" under § 53a-71(a) without touching the victim's "intimate parts" under § 53-21(a)(2), and vice versa. See also State v. Ellison, 79 Conn. App. 591, 602, 830 A.2d 812 (concluding that § 53-21[a][2] and § 53a-71[a] do not constitute same offense because sexual assault in second degree does not require contact to be "in a sexual and indecent manner likely to impair the health or morals of such child" [internal quotation marks omitted]), cert. denied, 267 Conn. 901, 838 A.2d 211(2003). Similarly, the Appellate Court in State v. Morris, 49 Conn.App. 409, 419, 716 A.2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998), concluded that risk of injury to a child under General Statutes (Rev. to 1991) § 53-21⁹ did not constitute the same offense as sexual assault in the fourth degree because the two crimes have different age requirements, and because the "sexual contact" requirement under § 53a-73a (a) requires a different mental state than the "`sexual and indecent manner'" requirement of § 53-21. See also State v. Perruccio, 192 Conn. 154, 162, 471 A.2d 632 (double jeopardy claim failed because "sexual assault in the fourth degree and risk of injury [to a child] each require proof of an element not required by the other"), appeal dismissed, 469 U.S. 801, 105 S.Ct. 55, 83 L.Ed.2d 6 (1984).

The defendant contends, however, that these cases, and others like them,¹⁰ are distinguishable from the present case because they did not involve the same combination of statutory offenses that are implicated here, namely, the applicable revision of risk of injury to a child under § 53-21(a)(2), which includes a specific prohibition against "contact with the intimate parts ... of a child ... in a sexual and indecent manner" that was not included in prior revisions of the statute, and sexual assault in the fourth degree. More specifically, the original version of § 53-21 prohibited only general conduct that was likely to endanger the health or morals of a child under the age of sixteen. See footnote 9 of this opinion. The more specific sexually oriented language of subdivision (2),...