State v. Anderson
| Decision Date | 18 January 2005 |
| Docket Number | No. 24331.,24331. |
| Citation | 864 A.2d 35,86 Conn.App. 854 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Oscar L. ANDERSON. |
Pamela S. Nagy, special public defender, for the appellant (defendant).
Rita M. Shair, senior assistant state's attorney, with whom were John A. Connelly, state's attorney, and, on the brief, Gail Hardy, assistant state's attorney, for the appellee (state).
DRANGINIS, FLYNN and MIHALAKOS, Js.
The defendant, Oscar L. Anderson, appeals from the judgment of conviction, rendered after a trial to the jury, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and one count of risk of injury to a child in violation of General Statutes § 53-21(a)(1).1 On appeal, the defendant claims that (1) his conviction of risk of injury to a child should be reversed and remanded for a new trial because it was based on a general verdict and the allegations comprising two of the three bases for conviction were insufficient as a matter of law, (2) the court improperly admitted hearsay statements of the victim, (3) the medical exception to the hearsay rule should be modified in cases in which a child claims that she or he was sexually assaulted and (4) the court improperly instructed the jury by failing to inform it of the evidence it could consider with respect to the charge of risk of injury to a child. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. In 1997, the defendant and the victim's mother met at their place of employment and became romantically involved.2 Shortly thereafter, when the victim was seven years old, the defendant moved into the mother's household. The mother worked the second shift and was not at home when the victim returned from school. The defendant, who worked a different shift, was there. At first the victim and the defendant had a good relationship, but later the victim told people she did not like the defendant.
The defendant punished the victim. The defendant struck her face with his hand when he was angry because she had not done her homework correctly. She did not tell her mother about this because she was afraid of what the defendant might do. On one occasion, the defendant hit her so hard her nose bled. The defendant also compelled her to hold a book bag filled with tapes and clothes on a stick over her head for long periods of time. On another occasion, he made her kneel on grains of rice. Although the victim did not tell her mother about these events, she confided in her best friend. The friend's mother testified that she noticed behavioral changes in the victim beginning in 1998. The victim, who had been carefree, had become quiet and withdrawn. The victim's grades suffered, and she exhibited a poor attitude at school. After school one day, the victim was terrified to go home on the school bus. Her teacher and school principal conferred with her mother. The victim, however, had not told anyone other than her friend that she was afraid of the defendant.
The victim also testified that the defendant made her rub his back or his feet while he was wearing only his underwear. In addition, he called her into the bedroom and asked her to rub his private parts. One night she woke up and the defendant was attempting to put his penis in her mouth. She reported this to her mother who told her that she must have been dreaming. The victim testified that the defendant had sexual intercourse with her by putting "his private into [her] butt." When she was nine and in the fourth grade, the defendant had intercourse with her almost "every other night or twice a week." The defendant forced the victim to have oral, anal and vaginal intercourse with him.
The victim did not tell her mother about the incidents of sexual abuse until shortly after a fire occurred in their home, the day after Thanksgiving, 2000. The victim was spending time with her grandmother who overheard her talking to herself. The grandmother insisted that the victim tell her what she was talking about. The victim told her grandmother of the defendant's sexual abuse. The grandmother informed the mother and immediately took the victim to the police station. The victim gave a statement to the police in which she related the defendant's sexual abuse. The police advised the victim's mother to take her to a hospital that specialized in assessing children who are victims of sexual abuse. The mother followed the advice of the police. The victim was examined by Judith Kanz, a certified pediatric nurse practitioner, who specializes in child forensic medical examinations.
The defendant testified that the victim did not like him because she felt that he was replacing her father and because he planned to marry her mother. He admitted that he disciplined the victim for not doing her homework or her chores. As punishment, he took away the victim's privileges or gave her "time outs." He also testified that he made the victim hold a stick on which an empty book bag was suspended for five minutes. The defendant denied that he had sexually assaulted the victim.
Following the jury's verdict, the defendant filed a motion for a new trial, which the court denied. The defendant was given an effective sentence of eighteen years in prison, ten years of probation and special conditions of probation as a sex offender. The defendant appealed.
Because the defendant's first and last claims are interrelated, we will address them together. The defendant claims that the judgment of conviction of risk of injury to a child in violation of § 53-21(a)(1), rendered pursuant to a general verdict, must be reversed because two of the factual bases argued by the prosecutor are insufficient as a matter of law, and the court improperly failed to tell the jury what evidence it properly could consider with respect to the count of risk of injury to a child.3 The defendant failed to raise these claims at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).4 Because we conclude that a constitutional violation did not clearly exist and that the defendant was not clearly deprived of a fair trial, he cannot prevail on either of these claims.
The following facts are relevant to our resolution of the defendant's claims. The amended substitute information alleged in count two that the defendant 5 (Emphasis added.) During the state's final argument to the jury, the prosecutor argued that the state had presented evidence that the defendant struck the victim's face causing her nose to bleed, made her kneel on grains of rice and, at other times, made her hold a book bag over her head for long periods of time.
With respect to the count of risk of injury to a child, the court instructed the jury as follows: "In count two, the defendant is charged with the crime of risk of injury to a [child] in violation of § 53-21(a)(1) of the General Statutes. The pertinent parts of that statute on which the defendant has been charged are as follows. Any person who does an act likely to impair the health of any child under the age of sixteen years shall be punished.
"Therefore, with respect to this offense to find the defendant guilty, the state must prove beyond a reasonable doubt the following elements as contained in the information. One, that at the time of the incident, the alleged victim was under the age of sixteen years; two, that the defendant committed an act that was likely to impair the health of a child; and, three, that the defendant had the general intent to perform such an act. The conduct to be punished must involve a child under the age of sixteen.
(Emphasis added.) Save for his claim that the court did not marshal the evidence with respect to this charge, the defendant does not claim that the court's instruction on the law was improper.
At oral argument before us, the defendant conceded that striking the victim and causing her nose to bleed is legally sufficient evidence of risk of injury to a child. He claims, however, that compelling a child to kneel on grains of rice or to hold a book bag in the air do not, as a matter of law, constitute risk of injury to a child as they are not blatant acts of abuse or even acts perpetrated by him. He claims therefore that it was improper for the court to submit the evidence concerning the incidents with the rice and the book bag to the jury. Furthermore, he argues that because the jury rendered a general verdict, it is not possible to know the factual basis on which the jury convicted him of risk of injury to a child, including whether the jury considered his acts of sexual abuse, which he argues, without legal citation, the jury could not consider. In support of his claim for reversal, the defendant relies on United States v. Garcia, 992 F.2d 409 (2d Cir.1993).
We disagree with the defendant's claim that he was convicted on the basis of insufficient evidence as a matter of law and that Garcia supports his claim.6 "[W]hen a jury returns a guilty verdict on an indictment...
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