State v. Carlos C.

• Decision Date: 03 May 2016
• Docket Number: AC 36815
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. CARLOS C.

STATE OF CONNECTICUT v. CARLOS C.^*

AC 36815

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued November 19, 2015

May 3, 2016

Lavine, Sheldon and Mullins, Js.

(Appeal from Superior Court, judicial district of Danbury, Pavia, J.)

Naomi T. Fetterman, with whom was Aaron J. Romano, for the appellant (defendant).

Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Sharmese L. Hodge, assistant state's attorney, for the appellee (state).

Opinion

MULLINS, J. The defendant, Carlos C., appeals from the judgment of conviction, rendered after a trial to the court, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70, and two counts of risk of injury to a child, one pursuant to General Statutes § 53a-21 (a) (1) and one pursuant to § 53a-21 (a) (2). On appeal, the defendant claims (1) that there was insufficient evidence to support his conviction, and (2) that the court violated his rights to a fair trial and to confrontation when it permitted the guardian ad litem to sit near the victim while the victim testified. We affirm the judgment of the trial court.

The trial court was presented with the following evidence during the defendant's criminal trial. The victim was born in 1996. In 2005, the victim's mother met and began dating the defendant. In 2006, the victim's mother moved into the defendant's home along with the victim and the victim's younger brother. In 2007, the victim's mother married the defendant.

Initially, the victim got along well with the defendant, but, after they moved into the defendant's home, the defendant began touching the victim inappropriately. The defendant would rub her thighs or slap her buttocks, and, when the victim would protest, he would offer her money and tell her not to say anything to anyone. The victim began to notice that, although she went to bed with clothing on, when she awoke in the morning, she often was not wearing any clothing. She soon realized that the defendant was entering her bedroom in the early hours of the morning, after her mother had left the home to deliver newspapers after 1 a.m.

Around this time, the defendant's sexual assaults escalated. He engaged in penile-vaginal intercourse with the victim on several occasions, causing the victim to experience pain, and to bleed on one occasion. During these assaults, the defendant removed his pants but kept on his shirt. He also told the victim to be quiet, and he threatened to throw her family out of his home if she told anyone about his assaults.

At some point during the 2006-2007 school year, the victim moved into the home of her father, while her mother and her younger brother remained in the home of the defendant. The defendant occasionally would pick up the victim to bring her to his home to see her mother. During these rides, he would inappropriately touch the victim on her thighs and buttocks.

In 2012, the victim disclosed this abuse to her boyfriend, who encouraged her to tell someone. On April 7, 2012, the victim disclosed the abuse to her father, who immediately took her to the police station to file a report. The defendant later was arrested and charged with one count of sexual assault in the first degree and two counts of risk of injury to a child.

The defendant elected to be tried by the court. Following the trial, the court found the victim to be credible, specifically stating: "[T]he court . . . heard the testimony of the complainant . . . [who] was on the stand for almost . . . a full . . . a complete day of testimony. She testified . . . consistently throughout the course of the day. She never wavered in her allegations with regard to what happened. She handled cross-examination and various questions that came at her, again, without changing her story or her consistency."

The court also found that the victim "specifically [had] alleged that there was sexual intercourse by way of vaginal intercourse [that] took place. That there was penetration in that the defendant penetrated by way of his penis her vagina, that there was vaginal intercourse beyond just the touching as part of the risk of injury counts with regard to sexual intercourse [and the court] want[ed] to make it clear that that evidence was absolutely on the record and that [the] court credit[ed] her account of the vaginal intercourse as she [had] described it repeatedly throughout the course of her day of testimony." The court, thereafter, convicted the defendant on all counts. This appeal followed.

I

The defendant claims that the evidence was insufficient to sustain his conviction because there was no physical evidence introduced during the trial, and, therefore, the only evidence to support the charges was the testimony of the victim, who was inconsistent and unreliable. He contends that "[w]here, as in this case, the witness' testimony is so discrepant, the court's determination of credibility was clearly erroneous." The state responds: "Because the defendant's sufficiency of the evidence claim hinges entirely on his challenge to the express, unassailable credibility determination on the part of the fact finder, his claim must fail." We agree with the state.

"When reviewing a sufficiency of the evidence claim, we do not attempt to weigh the credibility of the evidence offered at trial, nor do we purport to substitute our judgment for that of the [fact finder]. Instead, our review consists of a two-step process in which we construe the evidence presented at trial in a light most favorable to sustaining the verdict . . . and then determine whether the [fact finder] could reasonably have found, [on the basis of] the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Ortiz, 312 Conn. 551, 572, 93 A.3d 1128 (2014).

"We assume that the [fact finder] credited the evidence that supports the conviction if it could reasonably have done so. Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 514-15, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005).

On appeal, the defendant claims that the evidence was insufficient to support his conviction because the victim's testimony was inconsistent and unreliable. We conclude that this claim, for all practical purposes, does not challenge the sufficiency of the evidence. Rather, the defendant seeks to have us examine the credibility of the victim, which we are unable to do. See State v. Franklin, 115 Conn. App. 290, 292, 972 A.2d 741 (defendant's claim "that the victim's testimony was inconsistent and unreliable . . . [not] actually a sufficiency of the evidence claim . . . [because defendant] asks this court to examine the credibility of a witness"), cert. denied, 293 Conn. 929, 980 A.2d 915 (2009); State v. Michael G., 107 Conn. App. 562, 567, 945 A.2d 1062 ("defendant's claim, although clothed in sufficiency of the evidence language, in reality challenges the credibility of M's testimony," which we, on appeal, are unable to assess), cert. denied, 287 Conn. 924, 951 A.2d 574 (2008). "Because it is the sole province of the trier of fact to assess the credibility of witnesses, it is not our role to second-guess such credibility determinations." State v. Franklin, supra, 292. Accordingly, the defendant's claim fails.

II

The defendant next claims that by allowing the guardian ad litem to sit closer¹ to the victim while the victim testified, the court violated the defendant's right to a fair trial and his right to confrontation under both the federal constitution and the state constitution, and demonstrated personal bias. With respect to his due process right to a fair trial claim, the defendant argues that the trial court was not impartial. Specifically, he claims that by permitting this special accommodation, without requiring the state to demonstrate a compelling need for it, "the complainant has been accorded the status of a 'child victim' by the trial court," despite the fact the she was nearly eighteen years old when she testified and did not fall within the chronological purview of General Statutes § 54-86g.² He claims that the court validated the victim's "alleged victimization" and thereby "eviscerated [the defendant's] presumption of innocence." The defendant further argues that the court's "consideration of [the complainant] as a 'victim' necessarily means that the trial court believed a crime to have been committed, and that the defendant was thereby guilty. . . . [The court's] decision [is] devoid of any evidence of compelling need and [is] representative only of the court's predetermination of the defendant's guilt."

With respect to his right to confrontation claim, which the defendant included in his appellate brief as part of his due process claim, the defendant contends that the court permitted the guardian ad litem to act as a "buffer to shield [the victim] from cross-examination," thereby interfering with his right to confrontation.³ Given that the defendant is not claiming that he was unable to have a face-to-face confrontation with the victim—which he clearly had—we are at a loss to discern in what way the guardian ad litem acted as a "buffer to shield" the victim in violation of his right to confrontation, and the defendant does not explain this in his brief. As such, although he states that he also is making a claim under the...