State v. Chapman, 10624

• Citation: 610 A.2d 1328,28 Conn.App. 360
• Decision Date: 21 July 1992
• Docket Number: No. 10624,10624
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Donald CHAPMAN.

Page 1328

610 A.2d 1328

28 Conn.App. 360

STATE of Connecticut v. Donald CHAPMAN.

No. 10624.

Appellate Court of Connecticut.

Argued April 29, 1992.

Decided July 21, 1992.

Ira B. Grudberg, with whom was Thomas W. Ude, Jr., New Haven, for appellant (defendant).

Lawrence J. Tytla, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, Sr., State's Atty., for appellee (State).

Before NORCOTT, LANDAU and HEIMAN, JJ.

LANDAU, Judge.

The defendant, Donald Chapman, appeals from a judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1). ¹ On appeal the defendant claims that (1) his amnesia rendered him incompetent to stand trial, (2) the trial court's charge to the jury improperly enlarged the offense of sexual assault in the first degree, (3) the trial court improperly failed to admit statements made by the victim to the defendant to show their effect on the defendant's state of mind, and (4) the trial court improperly referred to the defendant's "misstatements" in its charge to the jury on consciousness of guilt. We agree with the defendant's second claim. Although this issue is dispositive, we will address the first claim to the extent it is likely to arise on retrial of this case. ²

On the basis of the evidence presented at trial, the jury could reasonably have found the following facts. The defendant is the owner of the Highland Horse Farm in Ledyard and the victim is a young woman who purchased a horse from the defendant and worked at the farm to subsidize her board payments for that horse. On the evening of March 2, 1990, the victim and another young woman arranged to spend the night at the farm with the defendant because a mare was about to foal. During the course of that evening, the defendant made a number of lewd comments to the victim.

The victim and the other young woman fell asleep on a couch in the lounge of the farm at about 1 a.m., on March 3, 1990. The defendant woke the victim at about 3 a.m. and asked her to go into the office with him. The victim, believing the defendant was waking her because the mare was ready to foal, followed the defendant into the office. Once in the office, the defendant told the victim to sit on the floor. When she sat down, the defendant grabbed at her pants, ripped them off and pushed her back onto the floor. The victim struggled with the defendant before he sexually assaulted her. Afterward, the defendant told her to be quiet, threw her pants back at her and left the office. After waiting a short while, the victim returned to the lounge and crawled back onto the couch with the other young woman.

The next day, the victim told the young woman what had occurred during the night. The women then told the parents of the victim's friend, who suggested that she contact the police. The victim contacted the police and gave a statement describing the events of the prior evening, in which she implicated the defendant. As a result of this incident, the defendant was charged with, and convicted of, sexual assault in the first degree. The trial court imposed a sentence of fourteen years suspended after seven years. From this sentence and conviction, the defendant has appealed to this court.

In his second claim on appeal, the defendant argues that the trial court unconstitutionally enlarged the offense with which he was charged and permitted the jury to convict him on the basis of a theory of liability that was neither charged by the state nor supported by the evidence when the court instructed the jury that it could convict him of sexual assault in the first degree if it found that he had compelled the victim to engage in sexual intercourse by either the use of force against her, or the threat of use of force. ³ Although General Statutes § 53a-70(a)(1) creates liability under both theories, the state, in its information, alleged that the defendant had violated the statute only by the use of force. The defendant claims that the trial court's instruction effectively permitted the jury to convict him on the basis of an uncharged theory of liability, violating his rights to be informed of the nature and cause of the accusation against him as guaranteed under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. State v. Franko, 199 Conn. 481, 488-89, 508 A.2d 22 (1986); State v. Trujillo, 12 Conn.App. 320, 326, 531 A.2d 142, cert. denied, 205 Conn. 812, 532 A.2d 588 (1987); State v. Foshay, 12 Conn.App. 1, 24-28, 530 A.2d 611 (1987).

The state maintains that it was clear that the theory on which the state prosecuted the defendant was that the defendant compelled the victim to submit to sexual intercourse by the use of force. The state argues that the jury instruction, when viewed from the standpoint of its effect on the jury in guiding it to a proper verdict, could not have misled the jury into believing that the defendant compelled the victim to engage in sexual intercourse by the threat of use of force. See State v. Williams, 202 Conn. 349, 362, 521 A.2d 150 (1987).

" 'The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him "with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense...." ' " State v. Williams, 27 Conn.App. 654, 668, 610 A.2d 672 (1992), quoting State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987). Because compulsion by the use of force and compulsion by the threat of use of force are two methods of committing one offense; State v. Franko, supra, 199 Conn. at 490, 508 A.2d 22; State v. Secore, 194 Conn. 692, 698, 485 A.2d 1280 (1984); the defendant's conviction under either theory of liability would bar subsequent prosecution for the same offense.

"On more than one occasion, [both this court and our Supreme Court have] stated that '[w]here a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.' State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983); State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985); State v. Asherman, 193 Conn. 695, 730, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985); State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984); see State v. Silveira, 198 Conn. 454, 459, 503 A.2d 599 (1986)." State v. Williams, supra, 202 Conn. at 363, 521 A.2d 150; State v. Reyes, 19 Conn.App. 695, 702-704, 564 A.2d 309, cert. denied, 213 Conn. 803, 567 A.2d 833 (1989); see Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532, 1545-46, 23 L.Ed.2d 57 (1969). It is well established that where, as here, the trial court's charge includes statutory language as to both the use of force and the threat of use of force, either of which may be an element of the crime of sexual assault in the first degree, and the information restricts the offense charged to use of force and no evidence is introduced on the threat of use of force, a trial court's instruction to the jury on the threat of use of force as a disjunctive element of sexual assault is improper. See, e.g., State v. Belton, 190 Conn. 496, 502, 461 A.2d 973 (1983); State v. Franko, supra, 199 Conn. at 488-89, 508 A.2d 22; State v. Newton, 8 Conn.App. 528, 513 A.2d 1261 (1986).

The substituted information charged the defendant with the crime of sexual assault in the first degree in that the defendant "attempted to, and did compel, the victim to engage in sexual intercourse by the use of force against said victim." (Emphasis added.) The trial court, in its charge to the jury, instructed that "a person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such person or by the threat of the use of force against such person which reasonably causes such person to fear physical safety. In order to commit the crime of sexual assault in the first degree the state must prove beyond a reasonable doubt that ... the defendant compelled the victim to engage in sexual intercourse either by the use of force or by threat of the use of force which caused the victim to reasonably fear physical injury to herself.... If you find the required sexual intercourse has been proven beyond a reasonable doubt, you must next determine whether the defendant used or threatened the use of force." (Emphasis added.) By instructing the jury on the threat of use of force portion of General Statutes § 53a-70(a)(1), the trial court authorized the jury to consider this theory of criminality, thereby implying that there was a factual question for it to resolve under that section of the statute. The state concedes that there was no evidence to support this theory of liability. The court has a duty not to submit to the jury in its charge any issue on which the evidence would not reasonably support a finding. State v. Diggs, 219 Conn. 295, 298-302, 592 A.2d 949 (1991); Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982); State v. Williams, supra, 202 Conn. at 364, 521 A.2d 150; State v. Estrada, 26 Conn.App. 641, 659-60, 603 A.2d 1179, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992). We cannot presume, as the state contends, that the jury rejected this issue because of the absence of evidence. See State v. Reid, supra, 193 Conn. at 667 n. 22, 480 A.2d 463.

The trial court, therefore, improperly instructed the jury on a statutory alternative for which there was no supporting evidence. Accordingly, the judgment must be set aside and a new trial...