State v. ANTONIO A.

• Citation: 878 A.2d 358,90 Conn. App. 286
• Decision Date: 19 July 2005
• Docket Number: (AC 24739).
• Court: Appellate Court of Connecticut
• Parties: STATE OF CONNECTICUT v. ANTONIO A.

90 Conn. App. 286

878 A.2d 358

STATE OF CONNECTICUT v. ANTONIO A.¹

(AC 24739).

Appellate Court of Connecticut.

Argued March 24, 2005.

Officially released July 19, 2005.

McLachlan, Gruendel and West, Js.

Jeremiah Donovan, for the appellant (defendant).

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

Opinion

WEST, J.

The defendant, Antonio A., appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and from the judgment revoking his probation after a trial to the court. On appeal, the defendant claims that (1) the evidence supported only a single count of each charge of risk of injury to a child and sexual assault in the first degree, (2) his conviction on both counts of each charge violated the prohibition against double jeopardy, (3) the statutes under which he was convicted are unconstitutionally vague as applied to him, (4) the trial court improperly redacted from his written statement to the police his offer to submit to a polygraph test, (5) prosecutorial misconduct during the state's closing argument deprived him of a fair trial and (6) the court improperly imposed a mandatory minimum sentence. We affirm the judgments of the trial court.

On the evening of August 12, 2001, the defendant returned home from work. His daughter, the victim, who had become eight years old the previous day, was sleeping in the living room. The defendant inserted his finger into the victim's vagina two times. The victim later told her mother, who did not live with the defendant, what had happened and said that her vaginal area had become painful. Her mother took her to a physician, who discovered that the victim had a vaginal injury consistent with digital penetration.

The state charged the defendant with two counts of risk of injury to a child and two counts of sexual assault in the first degree. After a trial, the jury returned a verdict of guilty on all counts. The court also found the defendant in violation of his probation, which had been imposed for a prior conviction of possession of narcotics. The court sentenced the defendant to a total effective term of forty-four years incarceration, execution suspended after twenty-four years, followed by ten years probation and lifetime sex offender registration. This appeal followed.

I

The defendant's first claim is that the evidence was sufficient to support only one count of each charge of risk of injury to a child and sexual assault in the first degree. We disagree.

The defendant preserved his claim by moving for a judgment of acquittal, which the court denied. "In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

"[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation omitted; internal quotation marks omitted.) State v. Bloom, 86 Conn. App. 463, 471-72, 861 A.2d 568 (2004), cert. denied, 273 Conn. 911, 870 A.2d 1081 (2005).

The defendant does not dispute that the victim testified unequivocally at trial that he had inserted his finger into her vagina twice. Furthermore, other witnesses corroborated the victim's account. Those constancy of accusation witnesses² testified that the victim consistently spoke of two instances of digital penetration. The defendant instead argues that the state failed to prove that time had elapsed between the insertions or that he had withdrawn his finger fully and then reinserted it. In the defendant's view, the victim's statement that the digital penetration happened twice proved only that the two insertions occurred in a continuous transaction and, therefore, supported only one count of each charge of risk of injury to a child and sexual assault in the first degree.

Our Supreme Court has rejected the type of argument set forth by the defendant. "The same transaction . . . may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense.³ . . . A different view would allow a person who has committed one sexual assault upon a victim to commit with impunity many other such acts during the same encounter." (Internal quotation marks omitted.) State v. Scott, 270 Conn. 92, 99-100, 851 A.2d 291 (2004), cert. denied, U.S. , 125 S. Ct. 1861, 161 L. Ed. 2d 746 (2005).

Although the defendant claims that the evidence supports only the finding that he twice inserted his finger into the victim's vagina as part of a continuous transaction, the jury reasonably could have concluded on the basis of the victim's testimony and the corroboration of the constancy of accusation witnesses that the two insertions were separate and distinct and that the defendant was guilty of two counts of each charge of risk of injury to a child and sexual assault in the first degree.⁴ We therefore reject the defendant's claim of insufficient evidence.

II

The defendant's second claim is that his conviction on both counts of each charge violated the prohibition against double jeopardy.⁵ We disagree.

The defendant did not raise his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁶ We determine that the record is adequate for review and that the claim is of constitutional magnitude, but we conclude that the alleged constitutional violation does not exist. "[D]istinct repetitions of a prohibited act, however closely they may follow each other . . . may be punished as separate crimes without offending the double jeopardy clause." (Internal quotation marks omitted.) State v. Scott, supra, 270 Conn. 99. The defendant's insertions of his finger into the victim's vagina were distinct repetitions because all the evidence indicated that two separate instances of insertion had occurred. The defendant therefore was not placed in jeopardy twice for the same offense.

III

The defendant's third claim is that §§ 53-21 (a) (2) and 53a-70 (a) (2) are unconstitutionally vague as applied to him because he could not have known that he would be prosecuted for more than one act of digital penetration. We disagree.

The defendant seeks review of his claim under State v. Golding, supra, 213 Conn. 239-40. We conclude that his claim fails to satisfy the third prong of Golding because the alleged constitutional violation does not exist. "To demonstrate that [a] 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. . . . [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law." (Citation omitted; internal quotation marks omitted.) State v. Rocco, 58 Conn. App. 585, 589-90, 754 A.2d 196, cert. denied, 254 Conn. 931, 761 A.2d 757 (2000).

We examine the language of the statutes under which the defendant was convicted to determine whether he had adequate notice of the prohibited conduct. "[W]e seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case . . . . In seeking to determine that meaning, we look to the words of the statute itself . . . ." (Internal quotation marks omitted.) In re Carlos Q., 62 Conn. App. 681, 685, 772 A.2d 668 (2001).

As to the two counts of risk of injury to a child, § 53-21 (a) (2) prohibits "contact with the intimate parts. . . of a child under the age of sixteen years . . . in a sexual and indecent manner . . . ." Although "contact" is not defined in the statute, it is defined in common usage as "a touching or meeting." Webster's Third New International Dictionary. The statute clearly provides fair warning that a single touching constitutes a violation.⁷ The necessary implication is that more than one touching constitutes more than one violation.

As to the two counts of sexual assault in the first degree, § 53a-70 (a) (2) prohibits "sexual intercourse with another person [who] is under thirteen years of age and the actor is more than two years older than such person . . . ." The definition of "sexual intercourse" in General Statutes § 53a-65 (2) includes "vaginal intercourse" and specifies that "[p]enetration, however slight, is sufficient to complete vaginal intercourse. . . . Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim's body." "A finger is considered an `object' that can be manipulated into a genital opening." State v. Albert, 50 Conn. App. 715, 725, 719 A.2d 1183 (1998), aff'd, 252 Conn. 795, 750 A.2d 1037 (2000). Those statutes plainly indicate that a single digital penetration constitutes an act of sexual intercourse. The necessary implication is that more than one digital penetration constitutes more than one act of sexual...