State v. Cotton

• Decision Date: 01 July 2003
• Docket Number: (AC 23473).
• Citation: 77 Conn. App. 749,825 A.2d 189
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. EDDIE COTTON, JR.

77 Conn. App. 749

825 A.2d 189

STATE OF CONNECTICUT v. EDDIE COTTON, JR.

(AC 23473).

Appellate Court of Connecticut.

Argued March 31, 2003.

Officially released July 1, 2003.

Dranginis, Flynn and Bishop, Js. Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John M. Waddock, supervisory assistant state's attorney, for the appellee (state).

Opinion

BISHOP, J.

The defendant, Eddie Cotton, Jr., appeals from the judgment of conviction, rendered after a jury trial, of unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), two counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). On appeal, the defendant claims that (1) the trial court improperly failed to give the jury instructions on consent and evidence of prior acts that he had requested, (2) his conviction of separate counts of unlawful restraint in the second degree and kidnapping in the first degree violate constitutional protections against double jeopardy, (3) prosecutorial comments during closing argument deprived him of a fair trial and, (4) there was insufficient evidence to support his conviction of unlawful restraint in the first degree and kidnapping in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 19, 1999, the victim was invited to dine with the defendant and the defendant's wife, Anita Cotton. The victim was fifty-two years old and partially blind as well as developmentally disabled. Anita Cotton and the victim had been friends for approximately ten years, during which time Anita Cotton had served as the victim's unofficial caretaker. On the evening in question, the defendant picked up the victim at her apartment and drove her to the Cotton home, where the three ate dinner.

After dinner, at approximately 10 p.m., Anita Cotton stated that she was tired and asked the defendant to drive the victim home. En route, on Dixwell Avenue in New Haven, the defendant stopped the car at the side of the road and shut off the engine. He told the victim that he had "liked" her for a long time and asked her to engage in sexual activity with him. The victim declined his advances and requested to be driven home. In response, the defendant unzipped his pants and began to masturbate. The victim admonished him, stating, "that's not right," and again requested to be taken home. The defendant slammed his hands against the steering wheel in anger and resumed driving.

Shortly thereafter, the defendant drove into a parking lot at the Martin Luther King School, also on Dixwell Avenue, and shut off the engine. He leaned over and attempted to slide his hands between the victim's thighs. The victim requested that he stop and said that she wanted to go home. Ignoring her request, the defendant reached into the victim's blouse and groped her breasts. When the victim resisted, the two "tussled" and "wrestled" inside the car. During the "tussle," the defendant's watchband broke and he frantically searched for it. He then offered the victim $50 for sexual favors. When she refused, he drove the victim to her home.

Upon arrival at the victim's housing complex, the defendant parked in a location that would require the victim to walk downhill in the darkness. She refused his offer to escort her to her apartment. The defendant, however, ignored her rejection and grasped her hand, leading her to her apartment. At its door, he requested to be let inside so that he could use the bathroom, to which the victim responded: "Pee outside." After several more requests, the victim relented and allowed the defendant to use her bathroom.

After the defendant had used the bathroom, he entered the living room where he once again attempted to physically engage the victim, telling her that he "loved" her while kissing and fondling her. In response, she protested, stating that it was "not right" and that "he should go home." When she opened the front door to show him out, the defendant forcefully slammed it shut. He then lifted her and threw her onto the couch.

As the victim protested that it was "not right" and "you're married," the defendant forcefully pulled off her undergarments and subjected her to intercourse. The victim pleaded for the defendant to "get off" of her, but he did not. When the defendant was finished, he counted out $50 in cash and placed it on a table, telling the victim not to disclose the incident to his wife. Approximately one week later, the victim disclosed the events to Anita Cotton. The women then reported the attacks to the police. As a consequence, the defendant was charged with unlawful restraint in the second degree in violation of § 53a-96 (a), kidnapping in the first degree in violation of § 53a-92 (a) (2) (A), sexual assault in the third degree in violation of § 53a-72a (a) (1) (A), two counts of unlawful restraint in the first degree in violation of § 53a-95 (a), sexual assault in the first degree in violation of § 53a-70 (a) (1) and burglary in the first degree in violation of § 53a-101 (a) (2), and was convicted, after a jury trial, on all seven counts. This appeal followed.

I

The defendant first claims that his state and federal constitutional rights to present a defense and to due process of law were violated when the court failed to deliver the jury instruction on consent that he had requested. We are not persuaded.

"The standard of review for a challenge to the propriety of a jury instruction is well established. [J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge. . . . A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [I]nstructions to the jury need not be in the precise language of a request. . . . Moreover, [j]ury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury." (Citations omitted; internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 263 Conn. 378, 383-84, 819 A.2d 795 (2003).

As a backdrop to the defendant's claim, the following additional evidence was adduced at trial. The defendant and the victim had known each other for approximately ten years. During the two years prior to the September 19, 1999 incident, the defendant had telephoned the victim at home frequently in an attempt to engage her in sexually oriented conversations. On at least one occasion, she had remained on the telephone while the defendant masturbated. The victim did not participate in the conversations, nor did she inform Anita Cotton about them.

On Thanksgiving Day, 1998, the victim joined the defendant and Anita Cotton for dinner and, because of the late hour, Anita Cotton invited the victim to spend the night. At some point during the night, the victim was awakened by the defendant when, naked, he went to the kitchen to get a drink of water. He then approached the victim, put his hands between her thighs, and digitally penetrated her against her wishes. He began to masturbate while fondling the victim's breasts. When he attempted to mount her, the victim resisted and told him, "No." He then offered the victim $200 if she would permit him to perform oral sex on her. She refused, and the defendant continued to masturbate after which he left the room. The victim did not tell Anita Cotton about the incident.

During closing argument, defense counsel argued that the victim's acquiescence in those earlier incidents evinced her ambiguity about the victim's sexual conduct and reasonably could be taken by the defendant as consent to his sexual advances toward her. Consistent with that argument, the defendant submitted the following request to charge the jury on the issue of consent "The state must prove beyond a reasonable doubt that the words and conduct of [the victim] clearly communicated to [the defendant] that she did not consent to his behavior. [The defendant] `cannot be found guilty because of some undisclosed mental reservation on the part of [the victim].' Any mental reservation must have been clearly and unambiguously communicated to [the defendant]. You must consider whether or not `the words and conduct of the complainant under all the circumstances would justify a reasonable belief that she had consented.' If by her words or conduct the [victim] appeared to have consented to [the defendant's] conduct, [the defendant] must be found not guilty."

The court declined to instruct on consent in the manner requested by the defendant. The court charged instead: "[I]f you find that [the victim] consented to the act of sexual intercourse, you cannot find that the act was compelled. Such consent must have been actual, not simply acquiescence brought about by force, by fear or by shock. The act must have been truly voluntary on the part of the victim. Consent may be expressed or you may find that it is implied from the circumstances that you find exist. Whether there was consent is a question of fact for you to determine." The defendant claims that this instruction on consent impermissibly weakened the state's burden to prove lack of...