State v. Gerald W.

• Decision Date: 18 September 2007
• Docket Number: No. 26980.,26980.
• Citation: 931 A.2d 383,103 Conn.App. 784
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. GERALD W.<SMALL><SUP>1</SUP></SMALL>

931 A.2d 383

103 Conn.App. 784

STATE of Connecticut v. GERALD W.¹

No. 26980.

Appellate Court of Connecticut.

Argued May 22, 2007.

Decided September 18, 2007.

Raymond L. Durelli, 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, senior assistant state's attorney, for the appellee (state).

FLYNN, C.J., and GRUENDEL and FOTI, Js.

FOTI, J.

The defendant, Gerald W., appeals from the judgment of conviction, rendered after a jury trial, of three counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2)² and one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a)(2) and 53a-70 (a)(2). On appeal, the defendant claims that the trial court improperly (1) instructed the jury regarding the presumption of innocence and (2) applied the rape shield statute by (a) failing to hold an evidentiary hearing to determine the admissibility of evidence relating to the prior sexual assault of one of the alleged victims, thereby denying the defendant his right to confrontation in violation of the sixth amendment to the United States constitution, and (b) extending the rape shield statute to the prosecution for risk of injury to a child. We affirm the judgment of the trial court.

From the evidence adduced at trial, the jury reasonably could have found the following facts. The victims are three minor children, S, the defendant's daughter; P, the defendant's cousin; and T, the cousin of the defendant's girlfriend. At the time of trial, the three victims were age fourteen, fifteen and sixteen, respectively. The victims often would visit the defendant at his apartment, where he lived with his girlfriend. When S was approximately six years old, she began visiting the defendant on a weekly basis. Sometime in December, 2001, when she was eleven years old, the defendant engaged in what would become a pattern of sexual abuse of S, which continued until sometime in early 2003. During some of these visits, the defendant would touch her chest and vaginal area with his penis, finger or hand. On one evening during 2001, when P was eleven, the defendant pulled down her pants and attempted to engage in sexual intercourse. When T was nine years old, she began to visit the defendant and her cousin. During the ensuing five year period, the defendant inappropriately touched both her chest and vaginal area approximately ten times.

After the defendant's conduct was disclosed to the police, the defendant was arrested and charged in a substitute information dated May 5, 2005, with three counts of risk of injury to a child and one count of attempt to commit sexual assault in the first degree. Following a jury trial, the defendant was convicted on all counts and sentenced to a total effective term of forty years imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court's jury instructions were improper because they deprived him of the presumption of innocence. This claim concerns language taken out of context regarding the presumption of innocence. The defendant claims that it was reasonably possible that the jury was misled and could have believed that the presumption of innocence disappeared after finding him guilty of one of the charged crimes. We are not persuaded.

The defendant constructed his claim from several portions of the court's instructions to the jury given on the presumption of innocence. The court stated that "the presumption of innocence remains with [the defendant] unless and until the state proves beyond a reasonable doubt that he is guilty of one or more of those charges." In the final charge to the jury, the court instructed that "the presumption of innocence remains with the defendant unless and until the evidence ... persuades you beyond a reasonable doubt that the defendant is guilty of one or more charges."

In his brief, the defendant challenges this portion of the instructions, highlighting the court's language in isolation from the remainder of the charge. Specifically, the defendant contends that by instructing the jury that the presumption of innocence applied until he was found guilty of "one or more charges," the court deprived him of the presumption of innocence, as the challenged language "implied that once the jurors found the defendant guilty as to one of the crimes with which he was charged, he was no longer entitled to the presumption of innocence ... as to the other crimes he had been charged with."

Because he failed to preserve his claim by submitting a request to charge to the trial court or by objecting to the charge given at trial, the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).³ We will review the defendant's claim under Golding because the record is adequate for our review, and "a claim of instructional impropriety regarding the presumption of innocence ... is of constitutional magnitude." State v. Lawrence, 282 Conn. 141, 178 n. 22, 920 A.2d 236 (2007). "[U]nder ... Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, [i]t is reasonably possible that the jury was misled." (Internal quotation marks omitted.) State v. Serrano, 91 Conn.App. 227, 244, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005). In determining whether the jury was misled, "[i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case.... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge." (Internal quotation marks omitted.) State v. White, 97 Conn. App. 763, 773, 906 A.2d 728, cert. denied, 280 Conn. 939, 912 A.2d 476 (2006). "The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result." (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 128, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). We turn now to the merits of the defendant's instructional claim.

In resolving the defendant's claim, we begin by setting forth the legal principles relevant to our discussion. "In Taylor [v. Kentucky, 436 U.S. 478, 484, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978)], the [United States Supreme Court] defined the principal function of the presumption of innocence: It is aimed to ensure that the jury bases its decision solely on the evidence presented, and not on extraneous factors such as arrest, information, arraignment, custody and the status of the defendant as an accused." State v. Coleman, 14 Conn.App. 657, 669-70, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988). "[T]he presumption of innocence is not evidence ... but instead is a way of describing the prosecution's duty both to produce evidence of guilt and to convince the jury beyond a reasonable doubt."⁴ (Internal quotation marks omitted.) Id., at 669, 544 A.2d 194.

In the present case, having considered the court's jury instructions in their entirety, we conclude that, when considered in the broader context of the charge as a whole, the court correctly charged the jury regarding the presumption of innocence. In its preliminary remarks to the jury, the court informed the jury that the defendant was not required to prove his innocence. In the court's final charge to the jury, the court informed the jury that it was to "make [its] own conscientious decision with respect to each charge, but only after [it] considered all of the evidence and discussed the evidence fully with the others." After discussing the presumption of innocence and the reasonable doubt standard, the court stated that "[e]ach charge must be evaluated separately." In light of these instructions, we conclude that the court's instructions communicated to the jury that the presumption of innocence applies individually to each charged crime and that it may be overcome as to each specific charge only after the state introduces evidence that establishes the defendant's guilt as to each crime beyond a reasonable doubt. Accordingly, the defendant's claim fails to meet the third prong of Golding because he has not established that a constitutional violation clearly exists and clearly deprived him of a fair trial.

II

The defendant next claims that the court improperly applied the rape shield statute to exclude evidence relating to T's allegations of prior sexual abuse by her biological father. Specifically, the defendant contends that the court improperly declined to hold an evidentiary hearing under General Statutes § 54-86f (4) to determine the admissibility of this evidence.⁵ Additionally, the defendant claims that the rape shield statute does not apply to prosecutions for risk of injury to a child under § 53-21, where a defendant has not been charged with any of the crimes enumerated in § 54-86f.

A

The defendant first claims that the court violated his constitutional rights under the sixth and fourteenth amendments to the United States constitution by failing to hold an evidentiary hearing regarding the admissibility of T's allegations of prior sexual abuse by her biological father. On appeal, as he did at trial, the defendant contends that an evidentiary hearing was required under subdivision (4) of § 54-86f because the proffered evidence was relevant to aid the jury in evaluating the victim's credibility and to highlight the possible risk of misidentification of the perpetrator of the...