State v. D'Haity
| Decision Date | 30 January 2007 |
| Docket Number | No. 25306.,25306. |
| Citation | 914 A.2d 570,99 Conn.App. 375 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Fenix D'HAITY. |
Roy S. Ward, Westport, for the appellant (defendant).
Proloy K. Das, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Richard Colangelo, senior assistant state's attorney, for the appellee (state).
BISHOP, GRUENDEL and DUPONT, Js.
The defendant, Fenix D'Haity, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1)1 and one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a)(2)(A).2 On appeal, the defendant claims that (1) the evidence was insufficient to support the conviction, (2) he was denied his due process right to a fair trial as a result of prosecutorial misconduct and (3) the trial court improperly (a) failed to rule on his motion for a judgment of acquittal at the close of the state's case-in-chief and (b) permitted the introduction of evidence of uncharged misconduct. We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On August 2, 2001, the defendant called the victim, A,3 and asked her to go out with him.4 They had talked three weeks earlier, during which time A had given the defendant her number. After A accepted his invitation, the defendant picked A up in his car and the two of them, accompanied by two male friends of the defendant, drove to a park where they exited the vehicle and proceeded to smoke marijuana that was in the defendant's possession. After smoking for about half an hour, A became thirsty, and the defendant agreed to drive with her across the street to purchase some water from a gasoline station.
After purchasing the water, the defendant then drove the car to a secluded location. When A indicated that she wanted to go home, the defendant started to touch her in a sexually aggressive manner. Despite A's telling him to stop and that she thought of him "as a friend, that's it," the defendant climbed over his seat, placed himself on top of her and held her neck. He removed A's pants, digitally penetrated her vagina and attempted to touch her breasts. When A continued to resist, the defendant attempted to force her to perform fellatio on him. When he got off of her, she opened the door and exited the vehicle wearing only her shirt and underwear.
A did not know where they were and started walking away. The defendant exited the car and told her to get back in, saying that he would return her pants and that they would go to pick up the others. When A returned to the car and reached in to retrieve her pants, the defendant grabbed her arm and pulled her back into the car. He climbed on top of her once again and penetrated A's vagina with his penis. After having intercourse with her, the defendant ejaculated on A's shirt. A put on her pants and was silent as the defendant drove back to the park to meet the others. When they dropped her off at home, she said to the defendant, "You're fucked," and ran into the house. The defendant chased after A and began calling her on his cellular telephone while he was still outside the house, but she refused to answer his calls.
After hysterically running back and forth between her bedroom and the bathroom for a time, A was able to compose herself and make a 911 telephone call to report that she had been raped. When the operator tried to connect her to someone in her local area, however, A "freaked" and hung up. Her mother accompanied her the next morning to the police station where A reported the rape. The police took her to a hospital where a rape kit and medical examination were performed.
The defendant ultimately was charged with one count of sexual assault in the first degree, one count of kidnapping in the first degree and, under a separate information, one count of intimidating a witness in violation of General Statutes § 53a-151. After a ten day trial, during which the defendant maintained that the encounter was consensual, the jury found the defendant guilty on the first two counts and not guilty of the charge of intimidating a witness. He was sentenced on each of the first two counts to twelve years incarceration followed by eight years of special parole, to run concurrently. This appeal followed.
The defendant first claims that the evidence was insufficient to support the conviction on both charges. Specifically, he contends that A's testimony was incredible and that her account of the crimes was physically impossible and therefore that the state failed to prove each element of the crimes for which he was convicted.5 We disagree.
We first set forth the well settled standard of review employed in a sufficiency of the evidence claim. "[W]e apply a two part test." First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....
"While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt...." If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt....
(Citations omitted; internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667-69, 804 A.2d 810 (2002).
To warrant a conviction for sexual assault in the first degree in violation of § 53a-70 (a)(1), the state bore the burden of proving that the defendant used force or the threat of force to compel A to engage in sexual intercourse. See State v. Mahon, 97 Conn.App. 503, 510, 905 A.2d 678, cert. denied, 280 Conn. 930, 909 A.2d 958 (2006). Likewise, the state had the burden of proving that the defendant had abducted and restrained A with the intent to inflict physical injury or to sexually attack her in order to warrant a conviction for kidnapping in the first degree in violation of § 53a-92 (a)(2)(A). See State v. Spencer, 81 Conn.App. 320, 338, 840 A.2d 7 (2004), rev'd in part on other grounds, 275 Conn. 171, 881 A.2d 209 (2005). At no point, however, does the defendant argue that the testimony, if believed, was insufficient to support his conviction of the charges; rather, he argues that the testimony should not have been believed.6
The defendant's claim, although clothed in sufficiency of the evidence language, in reality challenges the credibility of A's testimony. His brief is rife with examples of how "the incident could not possibly have occurred as described," and how A's testimony was "inconsistent, uncorroborated, frequently incredible and at critical points, physically impossible." (Citation omitted; 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 the record before us, the jury reasonably was free to credit the testimony of A. Because we cannot decide issues of credibility, the defendant's first claim fails.
The defendant next claims that he was denied his due process right to a fair trial because the prosecutor engaged in misconduct during closing argument. Specifically, he claims that the prosecutor improperly (1) shifted the burden of proof from the state to the defendant, (2) instructed the jurors that they need not accept the evidence put on by the defendant, (3) misstated facts and testimony and (4) vouched for the credibility of the state's witnesses.7 We disagree.
Although the defendant objected to some of the language he now claims resulted in prosecutorial misconduct, we note at the outset that a claim of prosecutorial misconduct need not be preserved to warrant our review. ...
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