State v. Cancel

• Decision Date: 01 April 2014
• Docket Number: No. 34639.,34639.
• Citation: 149 Conn.App. 86,87 A.3d 618
• Parties: STATE of Connecticut v. Santos CANCEL.
• Court: Connecticut Court of Appeals

149 Conn.App. 86

87 A.3d 618

STATE of Connecticut

v.Santos CANCEL.

No. 34639.

Appellate Court of Connecticut.

Argued Oct. 17, 2013.

Decided April 1, 2014.

William B. Westcott, Westport, assigned counsel, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Terence D. Mariani, Jr., senior assistant state's attorney, for the appellee (state).

LAVINE, KELLER and SCHALLER, Js.

SCHALLER, J.

The defendant, Santos Cancel, appeals from the judgments of conviction, following a jury trial, in the first case, of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(1)(A), risk of injury to a child in violation of General Statutes § 53–21(a)(1), and risk of injury to a child in violation of § 53–21(a)(2), and, in the second case, of sexual assault in the fourth degree in violation of § 53a–73a (a)(1)(A), risk of injury to a child in violation of § 53–21(a)(1), and risk of injury to a child in violation of § 53–21(a)(2). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction in the second case, and (2) the trial court improperly joined the two cases for trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts with respect to the charges in the first case, which involved the victim, J.¹ J was eleven years of age in February, 2009, and resided with her uncle. J's mother resided with the defendant and three of J's maternal siblings, all minors, in a nearby city. Sometime in February, 2009, J went to her mother's residence for an overnight visit. J's mother, the defendant, and the three other children were present in the residence during J's stay. On the night of her visit, J went to sleep in her sisters' room, where she shared a bed with two of her siblings. J later awoke to find the defendant sitting on the floor touching her “front private area.” When the defendant realized that J was awake, he apologized to her. J's mother then called for the defendant, prompting him to leave the room. Later that night, the defendant returned to the bedroom. He woke J and instructed her to go to another bedroom in the residence. J proceeded to go into the other bedroom, alone, and went back to sleep. The defendant then entered the other bedroom. He shut the door, positioned himself on top of J and “went up and down.” The defendant then cut a hole in J's underwear and initiated sexual contact with J's intimate areas. Following her encounter with the defendant, J went into the bathroom and felt a “wet” sensation in and around her intimate parts.

The next day, J returned to her uncle's home crying and ostensibly nervous. Sometime later, J told her uncle's girlfriend that she was having “a problem.” J explained how the defendant had “told her to go to sleep and to lay ... face down,” and how he had cut her pants. J also told her uncle that the defendant had tried to “abuse her” the night she stayed at her mother's home. J's uncle subsequently contacted the social worker at J's school. The social worker met with J, and J explained what occurred on the night she stayed at her mother's residence. After meeting with J, the social worker reported the incident to the Department of Children and Families (department). The department, in turn, contacted the police. Thereafter, J and her uncle went to the police station where J explained to the police how the defendant had made inappropriate contact with her on the night she stayed at her mother's residence. The police subsequently initiated an investigation into the incident and sought out J's mother and the defendant for questioning. When the police arrived at the mother's residence, the defendant ran out the back door. J's mother, however, agreed to accompany the police to the station for questioning. During questioning, J's mother indicated that during J's most recent visit, J had told her that she woke up with holes in her underwear. J's mother also indicated that one of her other daughters had reported waking up with holes in her underwear on several occasions.

The jury reasonably could have found the following facts with respect to the charges in the second case, involving the victim, G. G was ten years of age in February, 2009, and one of J's siblings. G lived with her mother and the defendant on a permanent basis. After speaking to her mother in connection with J, the police questioned G. G told the police that on certain nights, the defendant would come into her room and tell her to change her sleeping position. In the mornings that followed the defendant's nighttime visits, G woke up to find holes in her underwear and pants, always in the vicinity of her intimate areas. These holes were never present when she went to sleep, but appeared after she woke up the next morning. She was uncertain of what caused the holes to appear, but believed that her cat caused the holes in her clothing because her cat previously had ripped holes in her sister's clothing. She explained that the holes in her clothing appeared only during the time the defendant lived in the residence. She usually would give the underwear to her mother so she could mend them or throw them away. G revealed to police that she was wearing a pair of the mended underwear during questioning and that the dresser at her mother's residence contained many pairs of the underwear that still had holes in them or had been mended by her mother. With the mother's permission, the police took possession of the underwear G wore at the time of questioning. The police subsequently obtained and executed a search warrant on the mother's residence. During the search, the police seized twelve additional pairs of underwear and two pairs of pants that either had holes in them or appeared to have been mended. In addition, the police seized two pairs of scissors. The thirteen pairs of underwear and two pants seized by the police subsequently were submitted for forensic analysis. The forensic analysis of the clothing revealed that the two pants and six out of the thirteen pairs of underwear had holes consistent with being cut by a sharp blade, not ripped. The holes in each item were located between the rear end and genital area. DNA analysis revealed that the defendant's semen was present on the inside and outside of three pairs of G's underwear and one pair of her pants. The defendant could not be eliminated as the source of semen present on another pair of underwear.

The defendant was arrested on March 5, 2009.² With respect to J's case, the state, in a substitute information, charged the defendant with one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a–49(a)(2) and 53a–70(a)(2), one count of sexual assault in the fourth degree in violation of § 53a–73a(a)(1)(A), and two counts of risk of injury to a child in violation of § 53–21(a)(1) and (2). With respect to G's case, the state, in a substitute information, charged the defendant with one count of sexual assault in the fourth degree in violation of § 53a–73a(a)(1)(A), and two counts of risk of injury to a child in violation of § 53–21(a)(1) and (2).

Before trial commenced, the state moved for a consolidated trial on the charges in both cases. The court granted the motion after defense counsel raised no objection.

At the conclusion of evidence, the jury found the defendant not guilty of attempt to commit sexual assault in the first degree, but guilty on each of the remaining charges in J's case. The jury found the defendant guilty of all charges in G's case. The court sentenced the defendant to a total effective term of thirty years of imprisonment.³ This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to support his conviction of sexual assault in the fourth degree and risk of injury to a child with respect to G's case. The defendant contends that in reviewing this claim, we are limited to a review of the evidence presented as to G. Because our review is confined to evidence that is properly attributable to G's case, the defendant contends that the state did not establish that he had sexual contact with G and thereby failed to satisfy its burden of proving the charges with respect to G beyond a reasonable doubt. We disagree.

A

We begin by addressing the defendant's contention that we must disregard certain evidence presented at the consolidated trial for purposes of reviewing the sufficiency of the evidence for G's case. The defendant specifically contends that J's testimony was not admitted for any cross admissible purpose in G's case. Thus, according to the defendant, we cannot consider J's testimony in determining whether there was sufficient evidence to convict him of the charges with respect to G. We are not persuaded.

The following additional facts and procedural history are necessary to resolve the defendant's contention with respect to the proper scope of our sufficiency analysis. The jury heard J's testimony one day prior to G's testimony. The defendant did not ask the court to instruct the jury about any limitations or specific purposes for which J's testimony could be used with respect to the charges in G's case.

In support of his contention that J's testimony cannot be considered in determining whether there was sufficient evidence to support the jury's verdict in G's case, the defendant directs our attention to State v. Payne, 303 Conn. 538, 34 A.3d 370 (2012). In Payne, our Supreme Court held that the trial court improperly joined a felony murder case and a jury tampering case. Id., at 542–43, 34 A.3d 370. The state argued that the joinder should be affirmed “because the evidence in the two cases was cross admissible.... [E]vidence of jury tampering was admissible to show consciousness of...