State v. George A.

• Decision Date: 23 April 2013
• Docket Number: No. 18729.,18729.
• Citation: 308 Conn. 274,63 A.3d 918
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. GEORGE A.

308 Conn. 274

63 A.3d 918

STATE of Connecticut

v.GEORGE A.^*

No. 18729.

Supreme Court of Connecticut.

Argued Nov. 29, 2012.

Decided April 23, 2013.

Recognized as Unconstitutional

18 U.S.C.A. § 48

Cameron Dorman, special public defender, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, former state's attorney, and Brian Preleski, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, HARPER and VERTEFEUILLE, Js.^**

NORCOTT, J.

The defendant, George A., appeals ¹ from the judgment of the trial court, rendered after a court trial, convicting him in two separate cases of two counts of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2),² five counts of risk of injury to a child in violation of General Statutes § 53–21(a)(1) and (2),³ and one count of promoting a minor in an obscene performance in violation of General Statutes § 53a–196b (a).⁴ On appeal, the defendant claims that the trial court improperly: (1) found sufficient evidence to sustain the defendant's conviction for promoting a minor in an obscene performance under § 53a–196b (a) because the images in the “crush videos” ⁵ found on his computer featuring the victim did not depict a prohibited sexual act as defined by General Statutes § 53a–193 (3); ⁶ (2) committed plain error by admitting into evidence expert opinion evidence as to the ultimate issue of fact, namely, that the defendant had physically, psychologically and sexually abused the victim; and (3) permitted the state to present certain evidence of uncharged misconduct. We disagree, and affirm the judgment of the trial court.

The record reveals the following facts, as found by the trial court, and procedural history. The defendant is the father of the victim, who was born in May, 1995. They lived, along with the victim's mother, E, first in an apartment in Meriden, and later a condominium in Southington, where they moved when the victim was in the fourth grade. The first case arises from the defendant's lengthy course of physical, psychological and sexual abuse of the victim between May 24, 2004, when the victim was nine years old, and March 17, 2009, when she was fourteen years old. During that time, the victim spent her days alone with the defendant, because he had withdrawn her from her fourth grade class in the Southington public schools in order to home school her, while E worked outside the home. The victim then spent most of her days cooking for the defendant, giving him back massages, using her computer and playing video games; she was permitted to leave the apartment only occasionally to walk the dog or to take out the garbage.

With respect to the claims of sexual abuse, which formed the basis for the sexual assault charges and the first two risk of injury charges, the defendant digitally penetrated the victim's vagina on two occasions when she was ten and eleven years old in 2005 and 2006. On other occasions, the defendant watched the victim, in accordance with his direction, rub her vagina with a vibrating electric toothbrush, touch her vagina and genital area with mice and rats, crush mice and rats with her toes and buttocks, and penetrate her anus with balloons. The defendant also filmed the victim inserting mice into her vagina, at his direction.

The defendant's abusive behavior was not just sexual in nature. From May 24, 2004 through March 17, 2009, the defendant repeatedly hit the victim with various objects including a clothes hanger, a belt, Kali sticks, which are a martial arts weapon, and a cord from a video game console. The defendant also punished the victim by making her stand in a bathtub filled with water while he held a toaster over it and threatened to drop the toaster. He also beat the victim on one occasion to the point where she lost consciousness, and choked her, causing her to experience difficulty breathing. Finally, during another incident while the victim and the defendant were practicing martial arts,⁷ the victim sustained a cut on her head. Rather than seek professional medical attention, the defendant—who had no formal medical training—elected to suture the victim's cut himself at home, without the use of anesthetic.⁸

The second case arises from the events of March 18, 2009, which led to the state's discovery of the defendant's long-standing abuse of the victim. The trial court found that the defendant had become angry at the victim because she was reading a book of which he disapproved. The defendant took the book from her and began to beat her with his hands, then striking her in the face with the book with such force that her orthodontic braces broke and poked out of her lip. He then struck the victim on the back with a treadmill cord. Thereafter, the defendant ordered the victim to write four essays about her wishes to travel, and subsequently interrupted her writing with a request for a back massage. The defendant then fell asleep. Around 3 p.m., the victim packed two bags, lowered them off the condominium balcony with a rope, climbed down from the third floor balcony and ran away, where she called E at work. E then left work, met the victim at a nearby supermarket and, after returning to their home to take the family dog and some clothing while the defendant slept, withdrew money from her bank account and went to the safety of a relative's home.

Thereafter, E and the victim informed the Southington police about the defendant's conduct, and the victim was referred to Nina Livingston, a physician employed by the Aetna Foundation Children's Center at Saint Francis Hospital and Medical Center in Hartford, for an interview and a physical examination.

The state subsequently charged the defendant in the first case, Docket No. HHB CR09–0042176, with two counts of sexual assault in the first degree in violation of § 53a–70 (a)(2), two counts of risk of injury to a child for improper touching in violation of § 53–21(a)(2), one count of risk of injury to a child for impairment of health in violation of § 53–21(a)(1), one count of risk of injury to a child for impairment of morals in violation of § 53–21(a)(1), and one count promoting a minor in an obscene performance in violation of § 53a–196b (a). The state charged the defendant in the second case, Docket No. HHB CR09–41288, with one count risk of injury to a child for impairment of health in violation of § 53–21(a)(1). After both cases were joined for a court trial, the trial court found the defendant guilty on all counts in both cases and, accordingly, rendered a judgment of conviction. The trial court subsequently sentenced the defendant to a total effective sentence of sixty years imprisonment, with a ten year mandatory minimum sentence. ⁹ This direct appeal followed.

On appeal, the defendant contends that: (1) there was insufficient evidence to prove that he promoted a minor in an obscene performance in violation of § 53a–196b (a); (2) the trial court abused its discretion and committed plain error by permitting Livingston to offer her expert opinion as to the ultimate issue of fact; and (3) the trial court improperly permitted the state to present evidence of uncharged misconduct, namely, the testimony of K, a friend of the victim, that the defendant had sexually abused her between the ages of eleven and fourteen years old, and a video featuring E engaged in certain sexual acts with mice at the defendant's direction. We address each claim in turn.

I

We begin with the defendant's claim that the evidence was insufficient to prove beyond a reasonable doubt that he had promoted a minor in an obscene performance in violation of § 53a–196b (a) because the state failed to prove that the “material or performance depicted a ‘prohibited sexual act.’ ” Specifically, the defendant contends that the content of the videos from the defendant's computer admitted into evidence as state's exhibits 6 and 7, in which the victim crushes mice with her toes, show “nothing more than an act of cruelty” and do not depict the victim engaging in a “prohibited sexual act,” as defined by § 53a–193 (3). The defendant further posits that there was no proof beyond the victim's vague testimony that he had actually filmed her on video engaging in prohibited sexual acts. The defendant observes that the lack of voice direction contained on the video “strongly suggests that [the victim] made the videos herself,” which stands “in direct contrast” to a crush video featuring E wherein the defendant “could be heard directing her actions....” ¹⁰ In response, the state acknowledgesthat exhibits 6 and 7 did not depict the victim engaging in any of the prohibited sexual acts enumerated by § 53a–193 (3), but contends that the evidence nevertheless was sufficient to sustain the defendant's conviction because those exhibits, along with the video of E engaging in such acts with mice, corroborated aspects of the victim's testimony that did in fact satisfy the elements of § 53a–196b (a) beyond a reasonable doubt. We agree with the state, and conclude that there was sufficient evidence to sustain the trial court's finding that the defendant was guilty of promoting a minor in an obscene performance in violation of § 53a–196b (a).¹¹

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 [fact finder] is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with...