State v. Ernesto P.

• Decision Date: 01 May 2012
• Docket Number: No. 32825.,32825.
• Citation: 41 A.3d 1115,135 Conn.App. 215
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. ERNESTO P.1

135 Conn.App. 215

41 A.3d 1115

STATE of Connecticut

v.ERNESTO P.1

No. 32825.

Appellate Court of Connecticut.

Argued Feb. 1, 2012.Decided May 1, 2012.

Lisa J. Steele, special public defender, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and GRUENDEL and WEST, Js.

GRUENDEL, J.

The defendant, Ernesto P., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree by the threat of use of force in violation of General Statutes § 53a–70 (a)(1), one count of sexual assault in the first degree by intercourse with a victim under the age of thirteen in violation of General Statutes § 53a–70 (a)(2), one count of sexual assault in the third degree in violation of General Statutes § 53a–72a (a)(1)(B), one count of risk of injury to a child in violation of General Statutes § 53–21(a)(1), one count of risk of injury to a child in violation of § 53–21(a)(2), one count of possession of child pornography in the third degree in violation of General Statutes § 53a–196f (a), and one count of employing a minor in an obscene performance in violation of General Statutes § 53a–196a (a)(1). On appeal, the defendant claims that the evidence was insufficient to establish that he (1) threatened the use of force and (2) employed a minor in an obscene performance. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the late summer of 2006, the victim was eleven years old.² The victim resided in Hartford near the home of C, who lived with her father, the defendant. ³ The victim and C were close friends in the fifth grade. They played often, spending considerable time together. On one particular day, the victim stopped by C's home on her way to a park to play with other friends. At that time, C asked the defendant if she could spend the night at the victim's house. The defendant answered affirmatively, on the condition that C first cleaned her room. As C proceeded to her room, the defendant asked if he could have a moment with the victim, who waited in the kitchen. The defendant then approached the victim and touched her breasts and vaginal area outside her clothing. As he did so, he warned the victim that if she told anyone of the encounter “something bad would happen to [her]” and also that his daughter “would never talk to [her] and [they] would never be best friends no more.” C returned from her bedroom and observed the defendant “humping” the victim. She testified that the victim at that time looked uncomfortable and sad. C yelled at her father, stating that what he was doing to her best friend was wrong. The defendant responded by explaining to C that the victim simply was “showing him what she had did to her boyfriend.” C replied that she knew that he was lying because the victim did not have a boyfriend and would not engage in such behavior. The girls then left the defendant's property and headed to the victim's home, where they contacted the police. When the police responded, C falsely denied witnessing anything between the defendant and the victim because she “was scared of what was gonna happen if I told.... I thought I was gonna to get hurt or something.... By [the defendant].” C testified that “every time I get in trouble [the defendant] would ... pick up a wire or hit me with a stick or something.” Although the defendant was arrested, he later was released. As a result of that encounter, the victim refrained from entering the defendant's home and instead always waited in the backyard for C to come out and play. The victim testified that she did so because she was afraid of the defendant.

Approximately two months after the encounter with the defendant, the victim entered the defendant's home with C when he was not present. On that occasion, the defendant returned home while the girls were inside the residence and ordered C to take a shower. The victim at that point wanted to leave, but did not do so. As C showered, the defendant approached the victim and took naked photographs of her. He then sodomized the victim. The defendant stopped when C finished her shower and he instructed the victim to pull up her clothes. At trial, the victim testified that the sexual assault felt “[n]asty.” The victim did not contact the police after that assault because she did not believe that the police would take any action when “they didn't believe” her initial report weeks earlier.

Approximately two years later, while speaking with personnel from the department of children and families on an unrelated matter, C informed them that the defendant had “touched” the victim, which prompted an investigation. Stacey Karpowitz, a forensic interview specialist at the Aetna Children's Foundation, subsequently met with the victim on October 27, 2008, and questioned her about the allegations of sexual assault, which interview was monitored by members of the Hartford police department. During that interview, the victim stated that the defendant had touched her breasts and vaginal area, had taken pornographic photographs of her and had sodomized her. The police thereafter executed a search warrant on the defendant's home, where they found and seized twenty-six photographs of various females under a stack of pornographic magazines in a kitchen cabinet. Eleven of the photographs are of a young female exposing her naked breasts, buttocks, vagina and anus. At trial, the victim identified herself as the female in those photographs.

The defendant thereafter was arrested and taken to police headquarters, where he signed a waiver of his Miranda rights.⁴ Detective Edward P. Foster testified at trial that the defendant at that time stated, “I'm guilty. I'm guilty. Only guilty people sign papers.” The defendant also identified the victim as the nude female in several of the seized photographs. He denied ever touching the victim in a sexual manner and explained that the victim “was enamored [with] him and that on repeated occasions she had shown up at his door naked ... [b]egging him to teach her about sex.” He further stated that he believed that his daughter and the victim were engaged in a lesbian relationship. When asked about the identity of other females in the seized photographs, the defendant replied, “[H]ow much time am I gonna do in jail, five years? It's gonna take you ten years to figure out who those girls are.”

The defendant was charged by information with the aforementioned offenses. A trial followed, at the conclusion of which the jury found the defendant guilty on all counts. The court rendered judgment accordingly ⁵ and sentenced the defendant to a total effective term of twenty years incarceration and five years of special parole. From that judgment, the defendant now appeals.

I

The defendant claims that the evidence adduced at trial was insufficient to establish that he threatened the victim with the use of force. He preserved this claim by moving for a judgment of acquittal on that basis as to the charge of sexual assault in the first degree in violation of § 53a–70 (a)(1), ⁶ which pertained to the act of sodomy, and the charge of sexual assault in the third degree in violation of § 53a–72a (a)(1)(B), ⁷ which pertained to the touching of the victim's breasts and vaginal area as he “humped” the victim.

Our standard of review for claims of evidential insufficiency is well established. “[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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... [A reviewing court] cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.... Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt ... because this court has held that a jury's factual inferences that support a guilty verdict need only be reasonable....

“[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... Because [t]he only kind of an inference recognized by the law is a reasonable one ... any such inference cannot be based on possibilities, surmise or conjecture.... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence.... [P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.... Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable.... In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference. Equally well established is our holding that a jury may draw factual inferences on the basis of already inferred facts.... Moreover, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from...