State v. Dinoto

• Court: Connecticut Supreme Court
• Writing for the Court: Before PETERS; KATZ; In this opinion PETERS; BERDON
• Citation: State v. Dinoto, 642 A.2d 717, 229 Conn. 580 (Conn. 1994)
• Decision Date: 07 June 1994
• Docket Number: No. 14823,14823
• Parties: STATE of Connecticut v. John DINOTO.

Page 717

642 A.2d 717

229 Conn. 580

STATE of Connecticut v. John DINOTO.

No. 14823.

Supreme Court of Connecticut.

Argued March 29, 1994.

Decided June 7, 1994.

Lawrence J. Tytla, Asst. State's Atty., for appellant (State).

Bruce A. Sturman, Public Defender, for appellee (defendant).

Before PETERS, C.J. and BORDEN, BERDON, KATZ and PALMER, JJ.

KATZ, Associate Justice.

The defendant, John Dinoto, was charged in an eight count information with two counts of the crime of sexual assault in the first degree in violation of General Statutes § 53a-70(a), ¹ three counts of the crime of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1), ² one count of the crime of sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1), ³ and two counts of the crime of risk of injury to a child in violation of General Statutes § 53-21. ⁴ The charges involve two victims, T and J, who were alleged to have been sexually assaulted on separate occasions. After a jury convicted the defendant on all counts, the defendant appealed to the Appellate Court from the judgment of conviction of one count of sexual assault in the first degree (count five) and one count of sexual assault in the third degree (count seven), both pertaining to T, and from the judgment of conviction of two counts of risk of injury to a child (counts three and eight), pertaining to T and J, respectively. The defendant argued, inter alia, ⁵ that the trial court improperly had charged the jury on the alternative theories of "use of force and threat of use of force" in defining the crimes of sexual assault in the first and third degrees. The Appellate Court noted that the state had alleged only that the defendant had violated these statutes by the use of force, and that no evidence had come before the jury from which it could have concluded that either of the sexual assaults of T had been committed by the threat of use of force. Thus, the Appellate Court concluded that the trial court committed reversible error by instructing the jury that it could consider both statutory alternatives and reversed the judgment of conviction on counts five and seven. State v. Dinoto, 32 Conn.App. 217, 221, 628 A.2d 618 (1993). In so concluding, the Appellate Court relied explicitly on its earlier opinion in State v. Chapman, 28 Conn.App. 360, 610 A.2d 1328 (1992), with the knowledge that certification to appeal had been granted on that case. See State v. Chapman, 223 Conn. 923, 614 A.2d 827 (1992).

The state thereafter petitioned this court for certification, which we granted, limited to the following three issues: "(1) Under the facts of this case, did the Appellate Court properly conclude that the trial court's jury instruction regarding sexual assault in the first degree was incorrect because it referred to compelled sexual intercourse by threat of force? (2) If the answer to question 1. is yes, was reversal of the conviction required by (a) the federal due process clause; or (b) the due process clause of article first, § 8, of the Connecticut constitution? (3) Was the Appellate Court correct in failing to consider whether any error in the trial court's instruction was harmless?" State v. Dinoto, 227 Conn. 921, 632 A.2d 697 (1993). Because we conclude that the trial court's instructions, read in their entirety under the facts and circumstances of this case, did not improperly enlarge the offense charged, or allow the jury to consider the defendant's guilt of that offense based on a "statutory alternative for which there was no support in the evidence," we answer the first certified question in the negative and reverse that part of the judgment of the Appellate Court.

Recently, this court held in State v. Chapman, 229 Conn. 529, 545-48, 643 A.2d 1213 (1994), that where there had been no explicit evidence of the threat of use of force it was improper for the trial court to instruct the jury 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 other person or by the threat of the use of force against such person which reasonably causes such person to fear physical injury." As we have repeatedly stated: "It is improper for the trial court to read an entire statute to a jury when the pleadings or the evidence support a violation of only a portion of the statute." Id. In light of the state's concession in the Appellate Court that it had presented no evidence of the explicit threat of the use of force; ⁶ see State v. Diggs, 219 Conn. 295, 298-302, 592 A.2d 949 (1991); we concluded that the trial court had acted improperly. We then determined that, upon an appropriate harmless error analysis, the error was harmless.

In its jury instruction pertaining to the two counts of sexual assault in the first degree, the trial court in this case charged in accordance with General Statutes § 53a-70(a)(1) 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 other person or a third person or by the threat of the use of force against such person. Which reasonably causes such person to fear physical injury.... Now if you find the required sexual intercourse had been proven beyond a reasonable doubt, you must determine whether the defendant used or threatened the use of force.... Now, the first count as charged is sexual assault in the first degree. It's the first count on the information and that's the one having to do with [J] on the boat and it has to do with a claim of vaginal intercourse. The other count of sexual assault in the first degree has to do in the fifth count of the information and it has to do with [T] where the claim that the intercourse was fellatio and it occurred in the graveyard. Those are the two counts where the State claims that the crime of sexual assault in the first degree occurred." ⁷

At the conclusion of the trial court's charge, the assistant state's attorney alerted the trial court to the fact that it had instructed the jury on alternative methods of committing the various crimes that had not been set forth in the substitute information and the bill of particulars. In response, the defendant's trial counsel specifically stated that he did not want the court to correct its error, and that he did not have any problems with the fact that the trial court's instructions had enlarged the offenses with which the defendant was charged. State v. Dinoto, 32 Conn.App. at 219 n. 1, 628 A.2d 618.

The state argues that, because the evidence as to the first count of the information charging the defendant with sexual assault in the first degree of J, which was never the subject of any appeal, established that the defendant not only had used actual force against that victim but had also explicitly threatened to kill her, the trial court's challenged instructions did not authorize the jury to consider a theory for which there was no support in the evidence. We agree.

During her testimony regarding the first degree sexual assault that had occurred on the defendant's boat in the summer of 1984 (count one), J testified that when she had resisted the defendant's efforts to have sexual intercourse with her, he, in addition to having used actual physical force, had explicitly threatened to kill her if in resisting him she were to awaken her sister in the other bed in the cabin. Under the facts and circumstances of this case, therefore, there was evidence of the explicit threat of the use of force by the defendant toward J, the victim of the unchallenged first degree sexual assault charge. As a result, the trial court properly charged the jury to consider the use of force and threat of use of force as applied to that count.

In defining § 53a-70(a)(1), the trial court did not charge the jury separately concerning the two first degree sexual assault counts. Rather, the trial court cautioned the jurors of its intent to define the crime only once, told them that they were to consider both counts of first degree sexual assault, and advised them to apply the instructions as given to the appropriate counts. This admonishment persuades us that, in rendering their verdict, the jurors could not reasonably have been misled by any reference to the inapplicable portion of the statute. See State v. Carter, 189 Conn. 611, 631, ...