State v. Fourtin

• Decision Date: 09 October 2012
• Docket Number: SC18523
• Court: Connecticut Supreme Court
• Parties: STATE v. FOURTIN—DISSENT

STATE
v.
FOURTIN—DISSENT

SC18523

Supreme Court of Connecticut

Dated: October 9, 2012

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NORCOTT, J., with whom EVELEIGH and HARPER, Js., join, dissenting. I conclude that the Bridgeport jury that was summoned to decide the facts of this case reasonably could have found that the victim, a twenty-five year old woman with numerous disabilities, including cerebral palsy, mental retardation and hydrocephalus, which render her unable to walk and talk and leave her with only very limited means to communicate with others, was in fact "'[p]hysically helpless,'" even under what the majority deems to be the "highly particularized meaning" of General Statutes § 53a-65 (6),¹ as explicated by State v. Hufford, 205 Conn. 386, 399, 533 A.2d 866 (1987). I therefore respectfully disagree with the majority's conclusion that the Appellate Court properly determined that the convictions of the defendant, Richard Fourtin, of attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-49 (a) (2)² and 53a-71 (a) (3),³ and sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a) (1) (C),⁴ were not supported by sufficient evidence. See State v. Fourtin, 118 Conn. App. 43, 45, 982 A.2d 261 (2009). Because I would reverse the judgment of the Appellate Court, I respectfully dissent.

The majority accurately states the background facts and procedural history, and I will not repeat them extensively here. Because this case presents an issue that is extremely fact sensitive, I do, however, emphasize certain descriptive facts with respect to the victim and her disabilities, as well as the events surrounding the disclosure of her assaults. "The [victim] is a woman with significant disabilities that affect the manner in which she interacts with others. She [suffered a brain hemorrhage after being born three months premature, causing] cerebral palsy, mental retardation and hydro-cephalus.⁵ She cannot walk and needs assistance in performing the activities of daily living.⁶ She is nonverbal but communicates with others by gesturing and vocalizing and through the use of a communication board.⁷ To manifest her displeasure, she can kick, bite⁸and scratch. The [victim] can also vocalize her feelings by groaning or screeching.

"In 2006, the [victim] was attending an adult day care program for men and women who are physically, emotionally or mentally disabled. Deacon Raymond Chervenak was a staff member at the day care program with whom the [victim] regularly communicated about her interest in sports. On February 23, 2006, Chervenak observed that the [victim] looked 'aggravated' and 'scared.' In response to Chervenak's inquiry, the [victim], by means of appropriate gestures⁹ and the use of a communication board, made him aware that the defendant [who is the boyfriend of her mother, S] had

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sexually assaulted her at her home. In similar fashion, the [victim] repeated this accusation to Frances Hernandez, the supervisor of the adult program, by pointing to her own body parts and Chervenak's body parts. A subsequent medical examination disclosed physical symptoms consistent with the [victim's] report that she had been sexually assaulted." Id., 46–47.

"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).

Before turning to a detailed examination of the record in this case, I begin with a review of the legal principle that the jury tasked with deciding the facts of this case was called upon to apply,¹⁰ namely, whether the victim was physically helpless, a term that is statutorily defined as "unconscious or for any other reason . . . physically unable to communicate unwillingness to an act." (Emphasis added.) General Statutes § 53a-65 (6). The leading Connecticut case involving the application of this term is State v. Hufford, supra, 205 Conn. 386, wherein this court concluded that there was insufficient evidence to support the fourth degree sexual assault conviction of the defendant, an emergency medical technician, who had allegedly touched the breasts and vagina of a female patient who was being restrained during transportation to the hospital because she was agitated and apparently suicidal. Id., 389-90. This court first noted that the language of § 53a-65 (6) "contains no terms not commonly used which might not be understood in their ordinary meaning," and stated that, "[s]ince the complainant was not unconscious, we are concerned with whether she was physically able to communicate her unwillingness to the act." Id., 398. Quoting Webster's Third New International Dictionary (1986), the court determined that the word "communicate" was plain and unambiguous, and meant " 'to make known: inform a person of . . . speak, gesticulate . . . to convey information.' "¹¹ State v. Hufford, supra, 398– 99. Rejecting the state's claim that the complainant, who was unable to resist the alleged assault because she was being restrained, but had "protested verbally," was "physically helpless"; id., 398; the court observed

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that, "[b]y her own account, the complainant told the defendant repeatedly to stop touching her, directly conveying her objection to his advances. While this testimony tends to show lack of consent, it contradicts the state's assertion that the complainant was unable to communicate her 'unwillingness to an act.'" Id., 399. Accordingly, this court concluded that "[t]he record contains no evidence tending to show that the complainant was physically helpless."¹² Id.

Consistent with our decision in State v. Hufford, supra, 205 Conn. 399, case law from other jurisdictions applying statutory language identical to that of § 53a-65 (6) in sufficiency of the evidence analyses makes clear that even the most significant physical disability does not by itself render an individual physically helpless. Thus, I agree with the majority that the analytical key remains the disabled victim's physical ability to communicate consent or the lack thereof.¹³ Compare Dabney v. State, 326 Ark. 382, 384, 930 S.W.2d 360 (1996) (A fifty-three year old victim who was blind and unable to speak was physically helpless when, "[a]s to her ability to communicate, the victim could only grunt, raise her hand, and shake her head from side to side. She was unable to write. In addition, witnesses testified that the victim's ability to perceive and comprehend her surroundings was very limited."), and People v. Gonzalez, 62 App. Div. 3d 1263, 1264-65, 878 N.Y.S.2d 534 (sufficient evidence that victim with "advanced Alzheimer's disease . . . was 'physically unable to communicate unwillingness to an act'"), appeal denied, 12 N.Y.3d 925, 912 N.E.2d 1087, 884 N.Y.S.2d 706 (2009); and People v. Green, 298 App. Div. 2d 143, 144, 747 N.Y.S.2d 767 (Both victims were the defendant's fellow hospital patients and "were so severely handicapped that they were not capable of communicating an unwillingness to act. While there was evidence that each victim could make reflexive body motions, the evidence did not warrant a conclusion that either victim was capable of making voluntary movements designed to communicate unwillingness . . . ." [Citation omitted.]), appeal denied, 99 N.Y.2d 559, 784 N.E.2d 84, 757 N.Y.S.2d 211 (2002), with People v. Clyburn, 212 App. Div. 2d 1030, 1031, 623 N.Y.S.2d 448 (victim who suffered from Huntington's chorea, but could speak, not physically helpless), appeal denied, 85 N.Y.2d 971, 653 N.E.2d 627, 629 N.Y.S.2d 731 (1995), and People v. Morales, 139 Misc. 2d 200,...