State v. Elmer G., SC 20031

• Court: Supreme Court of Connecticut
• Writing for the Court: D'AURIA, J.
• Citation: 333 Conn. 176,214 A.3d 852
• Parties: STATE of Connecticut v. ELMER G.
• Docket Number: SC 20031
• Decision Date: 17 September 2019

333 Conn. 176
214 A.3d 852

STATE of Connecticut
v.
ELMER G.^*

SC 20031

Supreme Court of Connecticut.

Argued February 22, 2019
Officially released September 17, 2019

214 A.3d 854

Pamela S. Nagy, assistant public defender, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee (state).

Robinson, C.J., and McDonald, D'Auria, Mullins and Ecker, Js.

D'AURIA, J.

333 Conn. 179

A jury found the defendant, Elmer G., guilty of several offenses stemming from the sexual assault of his minor daughter, including three counts of criminal violation of a restraining order in violation of General Statutes § 53a-223b.¹ The Appellate Court upheld his convictions. State v. Elmer G. , 176 Conn. App. 343, 383, 170 A.3d 749 (2017). On further appeal to

214 A.3d 855

this court, the defendant claims that the state presented insufficient evidence to convict him of any of the counts of criminal violation of a restraining order. In addition, he claims that he was deprived of a fair trial as a result of certain improprieties committed by the prosecutor. We disagree with both claims and affirm the judgment of the Appellate Court.

333 Conn. 180

The jury reasonably could have found the following facts. The victim's parents—the defendant and his former wife, A.N.—originally are from Guatemala. The victim was born to the couple in 1996, and, two years later, the defendant immigrated to the United States. A.N. came to the United States two years after that, leaving the victim in Guatemala with relatives. The defendant and A.N. had four other children after they arrived in the United States.

The defendant would visit Guatemala about once a year. During one of these visits, in 2007, when the victim was about ten years old, the defendant began sexually abusing her. In 2010, when the victim was thirteen years old, the defendant had relatives smuggle her into the United States and to the family's Connecticut home. About two weeks after she arrived, the defendant again started sexually abusing her. The defendant also verbally and physically abused the victim, A.N., and the victim's younger siblings "[a]ll the time."

The Department of Children and Families (department) twice investigated allegations that the defendant had abused family members. In June, 2011, it investigated a report that the defendant had physically abused one of the victim's younger brothers. In January, 2012, the defendant left the United States for a planned visit to Guatemala. Soon after he left, one of the victim's brothers complained to school officials about a recent incident in which the defendant threatened A.N. and cut her with a knife.² The department opened a second investigation at this point. Although the victim had not

333 Conn. 181

yet disclosed the sexual abuse to anyone, the department was aware of "continuous domestic violence complaints ...."

In early March, 2012, while the investigation was ongoing and a few days before the defendant was to arrive back in the United States, the victim encouraged A.N. to report the defendant's physical abuse to the police, which she did. Although the police indicated that they were unable to help the family at that time, the department immediately began to assist the family. Among other things, it moved the family to another town and helped A.N. secure an ex parte restraining order against the defendant.

In relevant part, the ex parte order (1) prohibited the defendant from contacting A.N. and her children, (2) granted A.N. custody of the children, (3) denied the defendant visitation rights, and (4) scheduled a hearing on the matter for March 15, 2012. Days later, the defendant returned from Guatemala and was served person-ally with the order. The court held a temporary restraining order hearing as scheduled, which the defendant attended with his counsel. As a result of the hearing, the court issued a temporary restraining order that, in relevant part, retained the same contact restrictions but granted the defendant "[w]eekly, supervised" visitation with the children. Defense counsel advised him

214 A.3d 856

of the order's terms in private, the judge and a victim advocate informed him of the terms in open court, and he received a physical copy of the order. The defendant, who primarily speaks Spanish, had the proceedings translated for him by either a court-appointed interpreter or by his bilingual attorney.³

333 Conn. 182

After the order was in place, the defendant contacted the victim on at least three occasions. First, on March 28, 2012, he sent the victim a text message. The victim "felt unsafe" after receiving it and reported it to the police the same day. Second, at some point between April 1 and 9, 2012, the defendant sent the victim a letter. On April 9, 2012, the victim again went to the police, reported the letter and, for the first time, disclosed that the defendant had sexually abused her. Finally, on April 10, 2012, the defendant sent the victim another text message, which the victim reported to the police. Additional facts will be set forth as necessary.

The record also reflects the following procedural history. In addition to alleging the three counts of criminal violation of the restraining order, the state charged the defendant with three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). Following a trial, a jury found the defendant guilty of two counts of sexual assault in the second degree, two counts of risk of injury to a child, and all three counts of criminal violation of a restraining order. The jury found the defendant not guilty of one count of sexual assault in the second degree and one count of risk of injury to a child. The court denied the defendant's posttrial motions for a judgment of acquittal, to set aside the jury's verdict, and for a new trial. On the sexual assault and risk of injury counts, the defendant received a total effective sentence of forty years of imprisonment, execution suspended after twenty-five years, followed by twenty-five years of probation. On the restraining order violation counts, the defendant received a sentence of five years imprisonment on each count, to run concurrently with the sexual assault and risk of injury sentences.

333 Conn. 183

The defendant appealed to the Appellate Court, which affirmed the judgments of conviction. State v. Elmer G. , supra, 176 Conn. App. at 383, 170 A.3d 749. He then petitioned this court for certification to appeal, which we granted, limited to the following issues: (1) "Did the Appellate Court properly conclude that there was sufficient evidence to support the defendant's conviction for criminal violation of a restraining order?" And (2) "[d]id the Appellate Court properly conclude that the defendant was not deprived of his right to a fair trial by prosecutorial impropriety?" State v. Elmer G. , 327 Conn. 971, 173 A.3d 952 (2017).⁴

I

The defendant first claims that the state presented insufficient evidence for a reasonable jury to have concluded that he contacted the victim in violation of the temporary restraining order against him. We disagree.

214 A.3d 857

In reviewing a claim of insufficiency of the evidence, we construe the evidence in the light most favorable to sustaining the verdict. E.g., State v. Moreno-Hernandez , 317 Conn. 292, 298, 118 A.3d 26 (2015). We then determine whether the jury reasonably could have concluded that the evidence established the defendant's guilt beyond a reasonable doubt. Id. A defendant is guilty of a criminal violation of a restraining order if he (1) had a restraining order issued against him, (2) had "knowledge of the terms of the order," and (3) "contact[ed] a person in violation of the order ...." General Statutes § 53a-223b (a).

On appeal, the defendant does not dispute that he had a restraining order issued against him and that he contacted the victim twice by text message and once by letter. Rather, he argues that the state presented insufficient evidence that (1) he had "knowledge of the terms of the order" because the court's explanation of

333 Conn. 184

the order to him was unclear, and (2) because he does not read or understand English and the terms were not translated for him, and (3) the contact via letter with the victim was "in violation of the order" because it occurred before the order was in place.

We first set forth the terms of the order. The temporary restraining order the court entered against the defendant consisted of four standardized Judicial Branch forms stapled...