State v. Aponte, 15002
| Decision Date | 25 August 1998 |
| Docket Number | No. 15002,15002 |
| Citation | 50 Conn.App. 114,718 A.2d 36 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Nissa APONTE. |
Lori Welch-Rubin, Special Public Defender, for appellant (defendant).
Michele C. Lukban, Assistant State's Attorney, with whom, on the brief, were Jonathan C. Benedict, State's Attorney, and Joseph J. Harry, Assistant State's Attorney, for appellee (State).
Before FOTI, KULAWIZ and DALY, JJ.
The defendant, Nissa Aponte, appeals from the judgment of conviction, following a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a)(1) 1 and two counts of risk of injury to a child in violation of General Statutes § 53-21. 2
The defendant claims that the trial court improperly (1) instructed the jury on accessorial culpability, (2) denied her motion for acquittal and deemed the injuries inflicted comported with § 53a-59 (a)(1), (3) admitted evidence of prior custodial disputes, (4) admitted incomprehensible testimony by the victim, (5) condoned prosecutorial misconduct in which the state gave the victim a doll prior to her testifying, (6) permitted evidence of criminal convictions to impeach the defendant's only witness, (7) instructed the jury as to the victim's testimony, (8) failed to grant a mistrial at the conclusion of voir dire and (9) failed to grant the defendant's motion to dismiss one count of risk of injury to a child because of duplication.
The defendant and Carmen Lopez Casado were both charged with two counts of assault in the first degree and two counts of risk of injury to a child involving the defendant's three year old daughter. The cases were consolidated for trial and, after the jury was selected, the state moved for and the trial court granted severance of the two cases. The state elected to proceed against the defendant first. The defendant moved for dismissal of the jury based on the questioning of prospective jurors concerning their opinions on the defendant's sexual orientation. The motion was denied.
The trial court denied the defendant's request to conduct a hearing into the competency of the child. It also denied a motion for mistrial that was based on the prosecution's giving the victim a doll prior to her testifying. The trial court also denied the defendant's motion to strike the victim's testimony as being incomprehensible.
The jury reasonably could have found the following facts. The defendant is the mother of the victim, who was born on April 7, 1990. At the time the victim was one and one-half years old, the defendant requested that her friend Ermys Lugo raise her. In February, 1994, Lugo turned the child over to the defendant pursuant to a court order. The child was physically sound at that time.
On March 30, 1994, the defendant arrived at the home of her mother, Irma Ramos, with her daughter, whose eyes were black and swollen. The defendant explained that the child had struck the inside of the car. The defendant left the child with Ramos after being assured that the latter would not notify the police. Ramos noticed marks on the victim's back, front and legs when giving her a bath. Ramos secreted the child with a neighbor to hide her from the defendant. The neighbor called the Bridgeport police on March 31, 1994. The child was taken by ambulance to Bridgeport Hospital where she remained for a few days. She told Ramos that both the defendant and Lopez Casado had hurt her.
Officer David Osika of the Bridgeport police department responded to the neighbor's call and inquired about who had injured the victim. The victim indicated that her mother, the defendant, had done it. Detective Michael Whittaker of the Bridgeport police youth bureau also responded to the neighbor's home and asked the victim how she was injured. The victim said "la pata," Spanish slang for lesbian. Whittaker interviewed the defendant, who implicated Lopez Casado as having harmed the victim. He took another statement from the victim that both the defendant and Lopez Casado had hit her using a belt and that Lopez Casado inflicted abrasions to her knees and burned her finger.
The emergency room physicians discovered, in addition to the eye injury, that there were numerous marks on the victim's arms, thighs, knees, lower legs, chest, abdomen, back, ear and behind the ear. Nada Abdel A'al, an emergency room pediatric resident, examined the victim and diagnosed a pancreatic injury, which proved not to be life threatening. She determined that the eye injury was serious and that the victim could not open her left eye.
Richard Garvey, a general surgeon, testified that laboratory test results indicated possible internal bleeding consistent with an injury to the pancreas, making death a possibility. His overall diagnosis was "battered child syndrome." This diagnosis was confirmed by Alison Driggers, a pediatrician, who also determined that the pancreatic injury created a risk of death.
The defendant's only witness was Carmen Lopez, Lopez Casado's mother, who testified that on March 30, 1994, the victim was on the middle rear seat of her car as Lopez exited from her driveway. A truck caused her to apply the brakes suddenly causing the victim to fall forward between the front bucket seats.
The defendant claims that the trial court violated her rights to due process and a fair trial 3 by giving the jury a supplemental instruction that allowed the jury to convict her as an accessory on two counts of assault in the first degree and two counts of risk of injury to a child. The defendant argues that the state prosecuted her only as a principal and that, in preparing her defense, she relied on not being charged as an accessory.
We are unpersuaded because it is clear from the record that the defendant was on notice that she could face liability as an accessory, as specifically set forth in the state's reply to the defendant's request for a bill of particulars. 4 The defendant suffered no prejudice from the trial court's supplemental instruction.
(Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 340-41, 696 A.2d 944 (1997).
The defendant further claims that the evidence did not support giving the charge on accessorial culpability. State v. Tucker, 9 Conn.App. 161, 164, 517 A.2d 640 (1986). "Intent may be inferred from the circumstances and from what was done." 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed.1988) § 66c, p. 474.
The jury reasonably could have believed that the victim had been subjected to numerous injuries inflicted by both the defendant and Lopez Casado at various times. We are convinced from a review of the evidence that it was sufficient to support the trial court's instruction on accessorial culpability.
The defendant claims that the trial court improperly denied her motion for judgment of acquittal since the evidence was insufficient to warrant her conviction for assault in the first degree. She claims that the evidence failed to establish "serious physical injury" either to the pancreas or the eye. Section 53a-59 (a) provides in part: "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury...." General Statutes § 53a-3 (4) defines serious physical injury as "physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the functions of any bodily organ."
It is axiomatic that the state has the burden of proving each element of the offense beyond a reasonable doubt. 1 B. Holden & J. Daly, supra, § 58a, p. 324. "We begin our analysis by restating the principles that guide and define the scope of our review. When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis.... 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... State v. Cintron, 39 Conn.App. 110, 118, 665 A.2d 95 (1995).
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