State v. Bletsch

Decision Date09 January 2007
Docket NumberNo. 17340.,17340.
Citation281 Conn. 5,912 A.2d 992
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Jimmie R. BLETSCH.

James B. Streeto, assistant public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, and David Smith, assistant state's attorney, for the appellee (state).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

KATZ, J.

The defendant, Jimmie R. Bletsch, appeals, following our grant of certification, from the judgment of the Appellate Court affirming the judgments of conviction of three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1)1 and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21.2 State v. Bletsch, 86 Conn.App. 186, 187-88, 860 A.2d 299 (2004). The defendant claims that the Appellate Court improperly concluded that: (1) the trial court had not abused its discretion in denying his motion for an exemption from the Connecticut sex offender registry;3 and (2) his conviction in one case for both sexual assault in the second degree and risk of injury to a child for the same act did not constitute a violation of the double jeopardy clause.4 We conclude that the Appellate Court properly determined that the trial court reasonably had concluded that the defendant was not entitled to an exemption from the sex offender registry. As to the defendant's second claim on appeal, we conclude that there was no double jeopardy violation.

The Appellate Court opinion sets forth the following pertinent facts.5 "In the fall of 1999, the defendant, whose date of birth is October 14, 1981, engaged in sexual encounters with two females who were younger than sixteen years of age. At that time, he was more than two years older than those minors. See General Statutes § 53a-71 (a)(1). The defendant was subsequently charged in two separate cases, hereinafter referred to as the `Danielson' and `Norwich' cases.

"The Danielson case involved a sexual encounter between the defendant and the first victim6 that occurred on October 4, 1999. The victim was fifteen years old at the time. After speaking to her on the telephone, the defendant arrived at the victim's home at approximately 1:48 a.m. with a friend, Sean Gauthier. The defendant had been drinking alcohol that evening, and Gauthier stated that the defendant went there for the express purpose of having sexual relations with the victim. After entering her bedroom, the defendant pushed the victim onto the bed and rubbed his penis on her face and tried to make her suck it. The victim refused, and the defendant left.

"The Norwich case involved two sexual encounters between the defendant and a second victim on November 19 and 27, 1999. The Norwich victim was fourteen years old at the time. During both encounters, the defendant requested that the victim engage in oral sex with him, to which she acquiesced. During the November 27 encounter, the defendant digitally penetrated her vagina with his fingers. The defendant also unsuccessfully attempted to have vaginal intercourse with the victim.

"The defendant was charged by substitute information in the Norwich case with two counts of sexual assault in the second degree and two counts of risk of injury to a child. After a trial by jury, the defendant was convicted on all counts. Thereafter, in the Danielson case, he pleaded guilty, under the Alford doctrine,7 to sexual assault in the third degree in violation of General Statutes § 53a-72a.8

"At a sentencing hearing, the court heard testimony from the defendant's family and friends, and received several letters on his behalf.9 The court also heard that on September 1, 2000, the defendant had been arrested after he approached an undercover police officer who was posing as a prostitute and solicited a sexual act from her in exchange for $20.10 In sentencing the defendant, the court emphasized that the present matter involved three separate incidents of sexual assault and consequently sentenced the defendant to a total effective term of five years imprisonment, execution suspended after eighteen months, with ten years probation pursuant to twelve specific conditions."11 State v. Bletsch, supra, 86 Conn.App. at 188-90, 860 A.2d 299.

At sentencing, the defendant made a motion for an exemption from the Connecticut sex offender registry, claiming that he was entitled to the exemption because he was under nineteen at the time of the offenses, the sexual activities at issue in the charges were consensual in nature and he did not pose a risk to the public. In rejecting the defendant's request, the trial court reasoned that it was "significant that the Danielson matter occurred during the same period of time. And perhaps had it been one or the other of these instances, the court might have been more inclined to accept your argument."

It is from these judgments that the defendant appealed to the Appellate Court. He first claimed that the trial court had abused its discretion in denying his motion for an exemption from the Connecticut sex offender registry. State v. Bletsch, supra, 86 Conn.App. at 191, 860 A.2d 299. Specifically, the defendant claimed that, because he was younger than nineteen years of age at the time of the offenses and because he posed no risk to public safety, the trial court was required to exempt him from the sex offender registry. The Appellate Court noted that this issue was one of first impression, thus requiring it both to construe the exemption under General Statutes (Rev. to 2001) § 54-251 and to apply that construction to the facts of the case. Id. The Appellate Court determined that the two factors under § 54-251 were not dispositive, but, rather, were threshold determinations that must be made before the court considers whether an exemption is appropriate. Id., at 193, 860 A.2d 299. The court further concluded that, even if those two factors were satisfied in a given case, the trial court still retained discretion to determine whether an exemption was warranted. Id. Accordingly, the Appellate Court concluded that the trial court's determination of whether to exempt an individual from the registration requirements under § 54-251(b) is properly reviewed under an abuse of discretion standard. Id., at 192, 860 A.2d 299. Because the record in the present case supported the trial court's conclusion that the defendant did indeed pose a risk to public safety, the Appellate Court concluded that the trial court properly had denied the defendant's exemption request. Id., at 193, 860 A.2d 299. Specifically, the Appellate Court noted that, despite the defendant's repeated characterizations of the sexual assaults as "consensual," the victim's statement in the application for the defendant's arrest warrant in the Danielson case alleged that the defendant had "forced himself" on her and that the victim had "repeatedly told him to stop and tried pushing him away." (Internal quotation marks omitted.) Id.

The defendant also claimed that the trial court had violated his rights against double jeopardy in convicting him of both second degree sexual assault and risk of injury to a child in connection with a single offense. Id., at 194, 860 A.2d 299. The Appellate Court disagreed, concluding that the defendant could not prevail on this unpreserved claim because he could not establish that the alleged constitutional violation clearly exists, as required under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).12 Specifically, the court determined that, because under existing precedent the elements necessary for conviction of risk of injury and sexual assault in the second degree are different, his double jeopardy rights were not violated. State v. Bletsch, supra, 86 Conn.App. at 195, 860 A.2d 299. This certified appeal followed.13

The defendant first claims that the Appellate Court should have determined that the trial court had acted improperly when it found that he posed a risk to public safety, and when, accordingly, it improperly determined that he was neither eligible for, nor deserving of, the statutory exemption to the sex offender registration requirement. Specifically, the defendant contends that, under the facts and circumstances properly considered by the trial court at his sentencing, the trial court should have determined that the consensual sexual activity for which he was charged, prosecuted and punished, was "precisely th[e] type of situation [the legislature had] in mind when it created an exemption from registration, and, [that accordingly], the trial court abused its discretion in denying the defendant's motion for exemption." In regard to his second claim, the defendant asserts that the Appellate Court applied an improper standard to the double jeopardy issue and that, because it is not possible to have sexual intercourse with a child as proscribed under § 53a-71 (a)(1) other than in the manner proscribed under § 53-21, his double jeopardy rights had indeed been violated.

The state contends in response to the defendant's first claim that the record supports the trial court's conclusion that the defendant posed a risk to public safety and that its decision not to exempt him from the sex offender registry was proper. The state contends in response to the defendant's second claim that, because each statute of which the defendant was convicted contains an essential element that the other does not, his double jeopardy rights were not violated.

As to its resolution of the defendant's first claim, we agree with the Appellate Court's interpretation of § 54-251, concluding that the two factors prescribed therein—the offender was younger than nineteen years of age at the time of the offenses and posed no risk to public safety —did not require the trial...

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