State v. Douglas
| Decision Date | 11 February 2020 |
| Docket Number | AC 41245 |
| Citation | 195 Conn.App. 728,227 A.3d 532 |
| Parties | STATE of Connecticut v. DOUGLAS C., Jr. |
| Court | Connecticut Court of Appeals |
Dina S. Fisher, assigned counsel, for the appellant (defendant).
Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Theresa Ferryman, senior assistant state's attorney, for the appellee (state).
Alvord, Prescott and Sullivan, Js.
The defendant, Douglas C., Jr., appeals from the judgment of conviction, rendered after a jury trial, of five counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).1 The defendant claims on appeal that the trial court improperly (1) denied his motion for a judgment of acquittal because there was insufficient evidence for the jury to find the defendant guilty on count three, and (2) denied his request for a specific unanimity instruction with respect to counts one, three, five, and six. We disagree and, accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following facts. The defendant had sexual and indecent contact with the intimate parts of five female children—N, C, O, S, and T—on various dates while they were under the age of sixteen years old. These five children would often be in the presence of the defendant at the numerous gatherings he had at his home in Lisbon, after moving there in September, 2005. At these gatherings, the defendant would serve alcohol, including to those who were under the legal age to consume alcoholic beverages. The children would also be in the defendant's presence when babysitting his children at his home or on other occasions.
When the defendant was in the company of the children, he had contact with their intimate parts on multiple occasions. Specifically, the defendant touched the breasts of N on multiple occasions and performed oral sex on her on various occasions between 2005 and January 8, 2007; the defendant grabbed C's breasts over her shirt on multiple occasions from 2005 to September 22, 2006; the defendant placed O's hands in his pants, resulting in her making contact with his penis, placed his hands in her pants and made contact with her vagina, and touched her breasts on multiple occasions between 2005 and August 7, 2010; the defendant touched S's vagina on more than one occasion and made contact with her breasts on one occasion between 2005 through September 15, 2008; and the defendant touched T's breasts on multiple occasions between 2005 through October 23, 2007.2
On May 15, 2017, before the trial commenced, the defendant moved for a bill of particulars that "specif[ied] as far as reasonable the date, time, and place of the commission of the crimes alleged ...." The state responded by filing its substitute information on July 5, 2017, in which it provided some of these details in greater specificity for each count.
At the close of the state's case, the defendant moved for a judgment of acquittal. The state conceded that it had failed to meet its burden of proof with respect to count two and that the motion for a judgment of acquittal should be granted as to that count.3 The state otherwise opposed the motion. The court granted the motion as to count two and denied it as to all other counts.
After the charging conference, the defendant requested that the court provide a specific unanimity instruction to the jury on the remaining counts. The state agreed that a specific unanimity instruction should be given as to count four4 but objected to the court giving a specific unanimity instruction on the other remaining counts. The court agreed with the state and stated that it would provide a specific unanimity instruction as to count four but not as to the other remaining counts.
The defendant then made a second motion for a judgment of acquittal. He reiterated his concerns about the "pervasive pattern of unreliability as to the testimony of each [child]" that he raised in the first motion. The defendant also argued, in part, that there was insufficient evidence for the jury to return a guilty verdict as to count three. The court denied this motion and instructed the jury. The jury returned a guilty verdict on counts one, three, four, five, and six.
After the jury returned its verdict but before sentencing, the defendant moved for judgment notwithstanding the verdict and for a new trial, citing the reasons stated in his prior motions for judgment of acquittal as support for granting these motions. The court denied the defendant's motions.
The court subsequently imposed on the defendant a total effective sentence of eighteen years incarceration, with execution suspended after serving ten years, followed by ten years of probation. This appeal followed.
We first address the defendant's claim that the court improperly denied his motion for a judgment of acquittal because there was insufficient evidence for the jury to convict him on count three.5 In support of this claim, the defendant makes two arguments: (1) the test used by our Supreme Court in State v. Stephen J. R. , 309 Conn. 586, 597–98, 72 A.3d 379 (2013), to determine whether a child victim's general or nonspecific testimony is sufficient to sustain a conviction in a sexual abuse case is inapplicable to the present case because C, the child victim identified in count three, was not a very young child at the time she was abused by the defendant and when she testified at trial; and (2) even if the test articulated in Stephen J. R. applies to the present case, C's testimony was, nevertheless, insufficient under that test to sustain his conviction under count three. We disagree with both of the defendant's arguments.
We begin with the well settled standard governing our review of the defendant's claim that his conviction was predicated on insufficient evidence. "In reviewing a sufficiency of the evidence claim, we 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 .... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict....
(Internal quotation marks omitted.) Id., at 593–94, 72 A.3d 379.
Furthermore, we are mindful that State v. Stepney , 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).
In addition to these general principles, our Supreme Court has established a three factor test in cases in which the defendant is charged with sexually abusing a child to determine whether "generic" testimony by a complaining witness "about largely undifferentiated, but distinct, occurrences" is nonetheless sufficient to convict the defendant. State v. Stephen J. R. , supra, 309 Conn. at 595, 72 A.3d 379. "[I]n order to accommodate both the realities of child victims of repeated abuse and the due process interests of the defendant ... [t]he victim, of course, must describe the kind of act or acts committed with sufficient specificity , both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., twice a month or every time we went camping). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., the summer before my fourth grade, or during each Sunday morning after he came to live with us), to assure the acts were committed within the applicable limitation period.
Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Emphasis altered; internal quotation marks omitted.) Id., at 597–98, 72 A.3d 379. In establishing this test, the court weighed two competing considerations, namely, "[o]n the one hand, prosecutions based on generic testimony could deprive a defendant of his due process right to fair notice in order to effectively defend himself ... [and] [o]n the other hand, testimony from a child victim describing a series of indistinguishable acts by an abuser who has ongoing access to the child is often the only evidence that the child is able to provide." Id., at 595–96, 72 A.3d 379.
The defendant first argues that...
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State v. Douglas C.
...parts of five female children—N, C, O, S and T—on various dates while they were under the age of sixteen. State v. Douglas C ., 195 Conn. App. 728, 731, 227 A.3d 532 (2020). The five children would often be in the defendant's presence at the numerous gatherings he had at his home in Lisbon.......
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