State v. Faria

• Decision Date: 15 January 1998
• Docket Number: No. 16684,16684
• Citation: State v. Faria, 703 A.2d 1149, 47 Conn.App. 159 (Conn. App. 1998)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Inde FARIA.

Page 1149

703 A.2d 1149

47 Conn.App. 159

STATE of Connecticut v. Inde FARIA.

No. 16684.

Appellate Court of Connecticut.

Argued June 9, 1997.

Decided Nov. 25, 1997.

Certification Denied Jan. 15, 1998.

Mark Rademacher, Assistant Public Defender, for the appellant (defendant).

Paul E. Murray, Supervisory Assistant State's Attorney, with whom, on the brief, was Kevin T. Kane, State's Attorney, for the appellee (State).

Before LAVERY, FRANCIS X. HENNESSY and SPALLONE, JJ.

SPALLONE, Judge.

The defendant, Inde Faria, appeals ¹ from the judgment of conviction, following a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a)(2)(A), ² attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 ³ and 53a-70 (a)(1), ⁴ and sexual assault in the third degree in violation of General Statutes § 53a-72 (a)(1)(A). ⁵ After the verdict of guilty on the three substantive offenses, the defendant pleaded guilty to being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a)(2)(A). ⁶ On appeal, the defendant claims that (1) the trial court improperly admitted evidence of other misconduct, (2) the trial court improperly refused to give a lesser included offense instruction, (3) the kidnapping statute is vague as applied to the facts of this case, and (4) there was insufficient evidence to support a conviction of first degree kidnapping. We agree with the defendant that the trial court improperly admitted evidence of uncharged misconduct and that the trial court improperly refused to give a lesser included offense instruction. ⁷ We, therefore, reverse the judgment of the trial court.

On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. The victim and her husband lived in an apartment complex on Crystal Avenue in New London at the same time that the defendant lived in the complex with his girlfriend. The defendant first spoke with the victim when he came into the business where she worked and applied for a job. She did not initially recognize him, but he recognized her and asked if she lived at the Crystal Avenue apartments. For several months after this meeting, the defendant and the victim occasionally had conversations in the parking area while the defendant worked on cars. Among other things, they discussed the victim's marital problems.

When the defendant moved from the complex, he gave the victim his pager number. Some time later, on April 11, 1995, the victim, after discussing it with her husband, paged the defendant to see if he could fix her car. The defendant called in response to the page and offered to look at the car. The victim then drove the car to the defendant's residence; her husband, who was not feeling well, stayed at their apartment.

The victim met the defendant at a grocery store, since she was not familiar with the area, and he led her to Myrock Avenue, a dead-end street in Waterford. The defendant was living there with a friend, Todd Cooms. When they arrived at Myrock Avenue, at around 6:30 or 7 p.m., it was still daylight.

For at least one hour, the defendant worked on the car while the victim watched. Cooms arrived and went into the residence. Before the defendant stopped working on the victim's car, Cooms' girlfriend, Laurie Sullivan, arrived. Cooms, Sullivan and the defendant decided to go to a pub nearby and invited the victim to join them. She agreed, and the defendant rode in the victim's car, while Cooms rode in Sullivan's car.

They spent several hours at the pub, socializing and drinking beer and shots of liquor. During that time, the victim consumed two to three beers, and the defendant drank about six beers. The victim also had a sip of liquor, and the defendant had a shot and the remainder of the victim's shot. The victim and Sullivan spent most of the time talking, while Cooms and the defendant shot pool.

During the evening, the defendant told the victim how pretty she was and that it was a shame she was married. He also put his hand on her leg and, at one point, told her he was going to have to kiss her. At trial, the victim described his behavior as lewd and obnoxious. The victim "shrugged it off" and attributed the defendant's behavior to his consumption of alcohol. She described the defendant as having a "buzz" but not being drunk.

At about 11 p.m., Sullivan said that she had to leave, and Cooms decided to drive her home because of her alcohol consumption. Cooms said that he would need a ride from her house. The victim agreed to follow him and the defendant rode with her.

Along the way, when they stopped for a soda at a convenience store, the defendant tried to kiss the victim and touched her breast. She pulled away from him and pushed away his hand. She testified that she was not concerned because she felt able to take care of herself.

After Cooms dropped off Sullivan and her car, the three returned to the pub. The victim had another beer and the defendant had several more beers. They left the pub at around midnight.

The victim drove Cooms and the defendant to their residence on Myrock Avenue. There, the defendant, who was sitting in the front passenger seat, told Cooms to get out, which he did. The defendant asked the victim to drive to the end of the cul-de-sac about one quarter of a mile away, which she did. When she had gone about three quarters of the way around the circle at the end of the street, the defendant asked her to stop. Thinking the defendant was about to apologize for his earlier conduct, she stopped the car but left the engine running with the transmission in gear and the clutch depressed.

The defendant put his hand behind the back of the victim's head and tried to kiss her. She said no. He looked in her eyes and appeared to hesitate three times before finally saying, "How about just a blow job?" The victim responded, "Ah, you're drunk. No, I don't think so, you know." The defendant forcefully grabbed her hair on the back of her head and pulled her over the car console toward his lap. With his other hand, he groped her breasts and crotch. Two or three times, he tried to force the victim's head into his lap. She told him no and tried to push away and turned her head away from him. During most of the struggle, the defendant held her by her hair.

They argued and fought, and the victim eventually released the clutch, causing the car to stall. She asked that he leave the car but he would not. Two or three times, she tried to reach for the door, but he pulled her back by her hair. Fifteen to twenty minutes after the struggle began, she succeeded in opening the door and got her feet out. The defendant grabbed her by her hair and shirt, and she "pushed and pulled with everything [she] had." Her shirt ripped in the defendant's hand as she exited the car.

After escaping, the victim ran. She started toward the convenience store but, realizing it would be closed, ran to Cooms' house. She told Cooms that the defendant tried to rape her. Cooms saw that she was crying and distraught, and her shirt was torn. Moments later, the defendant came to the door. The victim asked that Cooms not let him in, but Cooms said that he had to, since the defendant lived there. The defendant tried to apologize. The defendant held her, stroking the back of her hair, as he told her he was sorry. She cried and was "petrified, and anything that [she] could do to get closer to the outside door [she] would do." The defendant offered to walk her home, but she refused and Cooms walked with her. Cooms felt that she was too upset to drive and drove her home in her car. When they went by the defendant's residence, his pickup truck, which had been there moments earlier, was gone.

Cooms went into the victim's home and explained to her husband what had happened. The police were called. The Waterford officer who interviewed the victim observed that her shirt was torn and that she had pronounced red marks on her left wrist. The victim, her husband, Cooms and the investigating officer arrived at the Waterford police station at approximately 1:40 a.m. At that same time, the officer was notified by radio that the defendant had been stopped by another officer and was being detained at an intersection in New London. The officer took the victim in his police car to that location, where she immediately identified the defendant and began to cry uncontrollably.

The Waterford police officer who stopped the defendant had observed the defendant's pickup truck occupied by two individuals on Willets Avenue. Hope Becker and the defendant were the occupants of the truck. The officer did not observe any erratic operation, and the defendant pulled to the curb in an orderly fashion. The defendant was responsive to the officer's directions, gave his license as requested and responded appropriately to inquiries. After the officer transported the defendant to the Waterford police department, he became uncooperative and was placed in a cell. The officer concluded that the defendant's demeanor might have been partially related to the alcohol he had consumed. At about 2:30 a.m., when the officers went to see if the defendant had calmed down, they could not rouse him.

Hope Becker was a prostitute with a drug habit who admitted to having consensual sex with the defendant in the early morning of April 12, 1995, after the incident with the victim. She had felony convictions for narcotics violations and for a failure to appear and was on probation with other criminal charges pending at the time the defendant was arrested. She had used cocaine on the night of April 11 but was no longer high when she was with the defendant. At approximately 1 a.m., on April 12, the defendant solicited her for prostitution in front of her residence on Jay Street in New London. She agreed to perform oral sex for $20. She entered his pickup truck, and he drove to Myrock Avenue, stopping first...