State v. Butler

• Decision Date: 23 September 1987
• Docket Number: No. 4329,4329
• Citation: 529 A.2d 219,11 Conn.App. 673
• Parties: STATE of Connecticut v. Peter J. BUTLER.
• Court: Connecticut Court of Appeals

Page 219

529 A.2d 219

11 Conn.App. 673

STATE of Connecticut v. Peter J. BUTLER.

No. 4329.

Appellate Court of Connecticut.

Argued Feb. 10, 1987.

Decided July 28, 1987.

Certification Denied Sept. 23, 1987.

Timothy H. Everett, Hartford, with whom, on brief, were Stephen Prignano and Mona Camhe, Certified Legal Interns, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on brief, were Donald A. Browne, State's Atty., and Jonathan C. Benedict, Asst. State's Atty., for appellee (State).

Before HULL, DALY and STOUGHTON, JJ.

STOUGHTON, Judge.

This is an appeal from a judgment of conviction after a trial to a jury. In a substitute information, the defendant was charged with sexual assault by threat of use of force in the first degree, a violation of General Statutes § 53a-70(a). ¹ He has appealed from the judgment, claiming that the trial court committed the following errors: (1) its general instruction on the rule of circumstantial evidence and its reference to that rule during its instructions on the elements of sexual assault and accessorial liability diluted the state's burden of proof beyond a reasonable doubt; (2) its instructions on sexual assault diluted the state's burden of proof when it charged the jury that the standard to be applied was whether a reasonably prudent person, under all the circumstances then and there prevailing, would more probably than not be caused to fear physical injury by such threat of use of force; and (3) it violated the defendant's rights of confrontation, compulsory process and due process of law when it excluded certain evidence pursuant to General Statutes § 54-86f(4).

The jury might reasonably have found the following facts. On March 3, 1984, the defendant was with John Rainieri and Nicholas Mainiero at the Trumbull Shopping Mall. There, they met the victim, a young woman who had known Mainiero before that date. The young woman accepted an invitation to go to a party in Stratford. The four left the mall in the defendant's automobile, but instead went to the defendant's apartment. They went to a bedroom, and one of the men produced a bottle of rum. Each of the men drank, and the young woman also had some rum after she had been threatened with harm if she refused. The victim went to a bathroom, where Mainiero tried to kiss her and to take her shirt off. She said that she wanted to go home, and she went back to the bedroom. When she tried to get up from a chair, she fell to the floor. The victim pulled herself onto the bed, where Mainiero pulled her to himself. Rainieri and the defendant left the room, after which Mainiero forced the victim to have intercourse with him. Rainieri and the defendant returned to the room, and Rainieri and Mainiero forced the victim to perform oral sex on them. Finally, the defendant had intercourse with the victim. During these events, the victim was verbally and physically threatened by Mainiero and Rainieri. The defendant did not himself utter any threats, but he was present in the room much of the time. After the defendant was finished, the victim was driven home where she became hysterical and told her sister that she had been raped.

The identity of the defendant was not an issue. The real issue in the case was whether the defendant had compelled the victim to engage in sexual intercourse by the threat of use of force which reasonably caused her to fear physical injury. There was no evidence that the defendant had himself uttered threats, but there was evidence that the other participants did so and that the defendant was present while some of those threats were made. The trial court charged on accessorial liability, and the jury could reasonably have found that the three men each participated in the assault.

The defendant's first claim of error arises out of the use by the trial court of a "more probable than not" instruction on circumstantial evidence. This claim of the defendant is supported neither by a request to charge nor by an exception to the charge as given. Nevertheless, review of this kind of charge has been granted in several recent cases under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). See State v. McKenna, 11 Conn.App. 122, 134-35, 525 A.2d 1374 (1987), and cases cited therein.

In its general instructions, the court charged the jury as follows: "Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements are satisfied. One, that the fact from which you are asked to draw the inference has itself been proven to your satisfaction beyond a reasonable doubt. And, two, that the inference asked to be drawn is logical and reasonable, and strong enough so that you can find that it is more probable than not that the fact to be inferred is true." (Emphasis added.)

The state has the burden of proving beyond a reasonable doubt every element of the crime charged. The "more probable than not" instruction has been held to be erroneous, and we must determine whether it is reasonably possible that the jury was misled by the instruction as to the state's burden of proof of a disputed element which, we conclude, is characteristically proven by circumstantial evidence. See State v. Perez, 10 Conn.App. 279, 283-85, 523 A.2d 508 (1987).

The trial court instructed the jury that there are three elements to the crime of sexual assault in the first degree as charged: "One, a defendant compels another person to engage in sexual intercourse; two, by the threat of use of force against such other person; three, which reasonably causes such person to fear physical injury."

That the defendant had sexual intercourse with the victim was not a contested issue. Whether it was an act resulting from the threat of force was, however, an issue. Compulsion is an essential element of this crime; State v. Rodgers, 198 Conn. 53, 60, 502 A.2d 360 (1985); which must be proven beyond a reasonable doubt.

Whether or not there was a threat of use of force arising from the defendant's participation in the events which took place, whether or not the victim was reasonably caused to fear physical injury, and whether or not she was thus compelled to have sexual intercourse with the defendant, were all facts to be inferred from the evidence.

Because in this case the defendant did not himself utter any threats before engaging in intercourse with the victim, he asserts that he did not threaten the use of force against the victim. Since the defendant was charged in the information with threatening the use of force and there was no direct evidence that the defendant threatened to use force, the state was required to prove that element of the crime through circumstantial evidence and the inferences drawn therefrom. That is, to prove by inference from the defendant's presence during, and complicity and or acquiesence in, the use of force and threats of use of force by the other men involved (which had been shown through direct evidence), that the defendant threatened the use of force in compelling the victim to engage in sexual intercourse with him.

The defendant argues that the court's instruction on circumstantial evidence diluted the state's burden of proving these inferences beyond a reasonable doubt. Although the court instructed the jury that the state bore the burden of establishing all of the elements of the crime beyond a reasonable doubt, it did not rectify its general charge on circumstantial evidence. See State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, --- U.S. ----, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). The jury was properly instructed that the defendant must only have possessed a general intent to do the acts which the statute prohibits, and that ordinarily this must be inferred. It was also instructed, however, that inferences drawn from circumstantial evidence could be met by an erroneous more probable than not standard.

This court has recently held that the analysis used by the appellate courts of this state in Whelan and Rodgers type cases ² applies not only to erroneous intent instructions, but also to "an erroneous charge which taints the jury's deliberative process or any disputed element of the crime charged which is primarily dependant on circumstantial evidence for its proof." State v. Sullivan, 11 Conn.App. 80, 96, 525 A.2d 1353 (1987).

As in Sullivan, this case particularly called for a proper instruction on the meaning and utilization of circumstantial evidence. Since the jury had been told that it could draw an inference from the facts proven, where "it is more probable than not that the fact to be inferred is true," the jury was permitted to draw an inference on whether the defendant threatened the use of force to compel the victim to have intercourse from circumstantial evidence based on an erroneous and diluted standard of proof. We conclude that it was reasonably possible that the jury was misled with respect to the state's burden of proving that the defendant threatened the use of force since the charge left unclear the state's burden of proving inferences drawn from circumstantial evidence beyond a reasonable doubt. State v. Whelan, supra, 200 Conn. at 757, 513 A.2d 86; State v. Hoeplinger, 9 Conn. App. 147, 159, 517 A.2d 632 (1986), cert. granted, 202 Conn. 805, 520 A.2d 1286 (1987); see State v. Sullivan, supra, 11 Conn.App. at 93-98, 525 A.2d 1353.

The state argues that, even if the charge was improper, it should be deemed harmless through application of the harmless error test. The state claims that Rose v. Clark, --- U.S. ----, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), requires such analysis. We agree and note that this court has previously applied such an analysis when faced with a Rodgers...