State v. Fourtin

• Decision Date: 17 November 2009
• Docket Number: No. 29899.,29899.
• Citation: 982 A.2d 261,118 Conn.App. 43
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard FOURTIN.

982 A.2d 261

118 Conn.App. 43

STATE of Connecticut v. Richard FOURTIN.

No. 29899.

Appellate Court of Connecticut.

Argued September 9, 2009.

Decided November 17, 2009.

Robert E. Byron, special public defender, for the appellant (defendant).

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Cornelius P. Kelly and Timothy J. Sugrue, senior assistant state's attorneys, for the appellee (state).

BISHOP, LAVINE and PETERS, Js.

PETERS, J.

The dispositive issue in this criminal appeal is whether the state met its burden of proving that the defendant sexually assaulted a person who is "physically helpless." General Statutes § 53a-65(6) defines "physically helpless" as "a person [who] is unconscious or for any other reason is physically unable to communicate unwillingness to an act." The complainant in this case is a young woman who suffers from multiple significant disabilities, including an inability to communicate verbally, although she is able to express herself in other ways. The defendant has appealed from the judgment of the trial court accepting a jury verdict finding him guilty of attempt to commit sexual assault in the second degree and sexual assault in the fourth degree. We reverse the judgment of the trial court.

In an amended substitute information dated January 16, 2008, the state charged the defendant, Richard Fourtin, with sexual assault in the second degree in violation of General Statutes § 53a-71(a)(3),¹ attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-49(a)(2)² and 53a-71(a)(3), and sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a(a)(1)(C).³ Each of these crimes requires proof beyond a reasonable doubt that the alleged victim was physically helpless as defined in § 53a-65(6).⁴ The jury found the defendant guilty of the second and third charges. The defendant has appealed from the judgment of the trial court sentencing him to eleven years of imprisonment, execution suspended after six years, with twenty-five years of probation and ten years of sex offender registration.

The jury reasonably could have credited the testimony of the state's witnesses to make the following findings of fact. In February, 2006, the twenty-five year old complainant lived in an apartment complex with her mother. The defendant, who was the boyfriend of the complainant's mother, lived nearby.⁵ He frequently assisted the mother in caring for the complainant. The complainant got along with him.

The complainant is a woman with significant disabilities that affect the manner in which she interacts with others. She has cerebral palsy, mental retardation and hydrocephalus. She cannot walk and needs assistance in performing the activities of daily living. She is nonverbal but communicates with others by gesturing and vocalizing and through the use of a communication board. To manifest her displeasure, she can kick, bite and scratch. The complainant can also vocalize her feelings by groaning or screeching.

In 2006, the complainant was attending an adult day care program for men and women who are physically, emotionally or mentally disabled. Deacon Ray Chervanak was a staff member at the day care program with whom the complainant regularly communicated about her interest in sports. On February 23, 2006, Chervanak observed that the complainant looked "aggravated" and "scared." In response to Chervanak's inquiry, the complainant, by means of appropriate gestures⁶ and the use of a communication board, made him aware that the defendant had sexually assaulted her at her home. In similar fashion, the complainant repeated this accusation to Frances Hernandez, the supervisor of the adult program, by pointing to her own body parts and Chervanak's body parts. A subsequent medical examination disclosed physical symptoms consistent with the complainant's report that she had been sexually assaulted.

The defendant does not contest the sufficiency of this evidence to establish the fact that he had sexual contact with the complainant. On appeal, he contends instead, as he did at trial, that the state failed to prove, beyond a reasonable doubt, that the complainant's physical and mental limitations at the time of the alleged assault rendered her "physically helpless" as that phrase is defined by § 53a-65(6).⁷

Our review of the defendant's claim of evidentiary insufficiency is governed by a well established two-part test. "In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533, 540-41, 975 A.2d 1 (2009).

"[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier's] verdict of guilty.... 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.... [Finally], in responding to a claim of evidentiary insufficiency ... we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier's] verdict." (Citations omitted; internal quotation marks omitted.) State v. Morelli, 293 Conn. 147, 152-53, 976 A.2d 678 (2009).

The only issue raised by the defendant's appeal is whether the state adduced sufficient evidence at trial to prove that the complainant's disabilities rendered her "physically helpless." The state has not alleged that, at the time when the defendant assaulted the complainant, she was unconscious, intoxicated, asleep or for some other reason unable to communicate nonverbally, such as by kicking, scratching and screeching. The defendant maintains, therefore, that, even viewing the evidence at trial in favor of the state, the record does not establish beyond a reasonable doubt that the complainant was "physically unable to communicate [her] unwillingness to an act," as § 53a-65(6) requires. We agree with the defendant.

Our Supreme Court analyzed this statutory language in State v. Hufford, 205 Conn. 386, 395-99, 533 A.2d 866 (1987). In Hufford, the alleged victim of a sexual assault had been physically restrained by paramedics who were transporting her to a hospital for observation. While so restrained, and over her vociferous verbal protests, she allegedly was inappropriately touched by one of the paramedics. The court observed that, "[s]ince the complainant was not unconscious, we are concerned with whether she was physically able to communicate her unwillingness to the [sexual contact]." Id., at 398, 533 A.2d 866. Rejecting the state's contention that "the complainant was physically helpless by virtue of her inability to move away from the defendant"; id.; the Hufford court held that the complainant's own testimony that she repeatedly had told the defendant to stop touching her definitively contradicted the state's assertion that she was unable to communicate her "unwillingness to an act." (Internal quotation marks omitted.) Id., at 399, 533 A.2d 866.

In light of Hufford, the crucial question for us to decide in this case is whether the state established that the complainant was physically unable to communicate her lack of consent to her assault by the defendant.⁸ In considering the significance of the evidence of the complainant's mental and physical limitations, we note that the state elected not to proceed with a charge, pursuant to §§ 53a-71 (a)(2) and 53a-73a(a)(B), that the defendant had engaged in sexual intercourse with another person who is "mentally defective to the extent that such other person is unable to consent to such sexual intercourse...." The state's choice of charges to pursue was, of course, a matter within its sole discretion. Nonetheless, to ascertain what the legislature meant by "physically helpless," we may look for guidance to the provisions of other statutes relating to the same subject matter. See In re Ralph M., 211 Conn. 289, 304, 559 A.2d 179 (1989). At the least, this statutory juxtaposition demonstrates that proof of mental deficits does not establish "physical helplessness" if the alleged victim had the ability to communicate her lack of consent.

The state maintains that, in this case, it presented sufficient evidence to cast doubt on the complainant's ability to communicate so as to make this issue a jury question. One of the state's witnesses, James Bovieno, testified categorically, but without elaboration, that she was noncommunicative. Bovieno was the emergency room physician who examined the complainant for physical...