State v. Gewily

• Decision Date: 19 December 2006
• Docket Number: No. 17633.,17633.
• Citation: 911 A.2d 293,280 Conn. 660
• Parties: STATE of Connecticut v. Mostafa GEWILY.
• Court: Connecticut Supreme Court

Page 293

911 A.2d 293

280 Conn. 660

STATE of Connecticut v. Mostafa GEWILY.

No. 17633.

Supreme Court of Connecticut.

Argued September 8, 2006.

Decided December 19, 2006.

Sarah F. Summons, special public defender, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James Dinnan, senior assistant state's attorney, for the appellee (state).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

PALMER, J.

A jury found the defendant, Mostafa Gewily, guilty of one count of risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21(a)(1)¹ and one count of custodial interference in the first degree in violation of General Statutes § 53a-97. The trial court rendered judgment in accordance with the jury verdict,² and the defendant appealed,³ claiming that the evidence was insufficient to support his conviction of risk of injury to a child.⁴ We disagree and, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant, an Egyptian national, married his wife, Maria Gewily (Maria), in 1994. Shortly after their marriage, the couple began living in Meriden in the home of Maria's mother. In March, 1998, Maria gave birth to S,⁵ the couple's only child.

Not long after S's birth, the couple's marriage began to deteriorate, and the defendant became verbally and physically abusive to Maria. On one occasion, Maria called the police after the defendant slapped her and knocked her down. When the defendant learned that Maria had called the police, he threatened to kill her. Although the defendant never was verbally or physically abusive to S directly, S often was present when the defendant was abusive to Maria.

In December, 2000, the defendant and Maria began living apart. Maria continued to reside with S at her mother's home in Meriden, and the defendant moved to West Haven. Maria, however, regularly took S to visit the defendant at his West Haven residence, where Maria and S frequently stayed overnight. According to Maria, her reason for bringing S to stay with the defendant was to ensure that S would continue to have a relationship with his father.

After the defendant and Maria separated, S became more and more reluctant to spend time with the defendant. On one occasion, while S was waiting at home for the defendant to pick him up for a scheduled visit, S told his grandmother, Maria's mother, that he did not want to go with the defendant. S also informed her that she should not go outside when the defendant arrived because the defendant had told S that he was "going to cut [his grandmother's] head off and [her] stomach with a big knife." The defendant's threat against S's grandmother was only one of a number of such threats that the defendant had made against Maria and her mother. In fact, the defendant was so upset about his separation and possible divorce from Maria that he told one of Maria's relatives that "he would kill [S] . . . while [Maria] watched, and then he would kill her, and then he would kill himself before the divorce happened."

In October, 2001, approximately one year after the couple's separation, Maria filed for divorce. Shortly thereafter, on November 9, 2001, Maria obtained a restraining order prohibiting the defendant from entering her home and from threatening, assaulting or otherwise harassing her. Pursuant to the order, Maria was awarded temporary custody of S. The order, however, permitted the defendant unsupervised visitation with S on Sundays from noon until 4 p.m., and on Mondays from noon until 5 p.m.

On Sunday, December 9, 2001, the defendant picked up S in accordance with the visitation order and informed Maria that he probably would take S to a shopping mall. The defendant, however, did not return with S by 4 p.m. as the order required. Maria finally called the Meriden police department at approximately 7 p.m. and reported that the defendant had not returned with S as the order required. The officer with whom Maria spoke advised her to wait a few more hours to be sure that the defendant was not unavoidably late due to circumstances beyond his control.

At approximately 10 p.m. that evening, Maria called the Meriden police department again and informed a duty officer that the defendant still had not returned with S. The Meriden police then contacted the West Haven police department, which dispatched an officer to the defendant's apartment. Upon arriving there, the West Haven officer was informed by one of the defendant's neighbors that he had moved out at least one week earlier.

In the early morning hours of December 10, 2001, Maria received a telephone call from the defendant. When Maria asked the defendant where he was, the defendant implied that he was at a casino. Maria, however, could hear background noises that led her to believe that he was at an airport. Moreover, when the defendant permitted Maria to speak with S, S asked her if she was going to "come on the airplanes . . . ." In fact, airline records revealed that the defendant and S had flown from New York to Cairo, Egypt, arriving on December 10, 2001.

The defendant next contacted Maria on December 15, 2001. He told her that he and S were in California but did not permit her to speak to S. Maria did not hear from the defendant again until December 24, 2001, at which time the defendant informed her that he had taken S to Cairo. The defendant allowed Maria to speak with S, who again inquired of Maria whether she would be "coming over . . . ." In an effort to avoid upsetting S, Maria explained that she would see him soon.

The next day, the defendant telephoned Maria but did not allow her to speak with S. In that conversation, the defendant blamed Maria for the family's separation and threatened to reenter the United States under an alias and kill her.

From December, 2001, until the summer of 2002, the defendant telephoned Maria at least twenty times. Only occasionally, however, did the defendant permit Maria to talk with S. When Maria was permitted to speak with S, their conversation focused on whether she would be "coming over." Maria repeatedly tried to comfort S by reassuring him that she would be visiting him soon. Although the defendant provided Maria with a telephone number that she could use to contact him in Egypt, Maria was not always able to get through to S when she used that number.

Maria stopped receiving telephone calls from the defendant in the summer of 2002. Maria also abandoned her efforts to communicate with S because the defendant had made it so difficult for her to do so, emotionally and otherwise. Meanwhile, in March, 2002, Maria's divorce from the defendant became final. The divorce decree awarded full custody of S to Maria.

Approximately one year after taking S from his home in Meriden and relocating to Egypt, the defendant returned to the United States. On December 24, 2002, the defendant was arrested at John F. Kennedy International Airport in New York. He did not, however, have S with him.

On one occasion following his arrest, the defendant, who was incarcerated in lieu of bail pending trial, placed a telephone call from prison to Esam Awad, a friend and former coworker. During that conversation, the defendant explained to Awad that he was concerned about S's well-being. In light of that concern, the defendant provided Awad with a Cairo telephone number and asked Awad to call it to find out if S was alright. The defendant also instructed Awad to inform the woman who answered the telephone that she was not to release S to anyone without the defendant's prior approval. Awad followed the defendant's instructions and was informed by the woman with whom he spoke that S was "good" and "feeling well. . . ."

Since his arrest, the defendant steadfastly has refused to disclose S's location. Despite efforts by the Federal Bureau of Investigation and the United States Department of State to locate S, his whereabouts remain unknown.⁶ With these facts in mind, we turn to the defendant's claim that the evidence was inadequate to support his conviction of risk of injury to a child.

The defendant's claim of evidentiary insufficiency is twofold: first, that the state presented no evidence concerning the actual status of S's health; and second that the state failed to establish that the defendant had created a situation likely to be harmful to S's health. We reject the defendant's first argument because the state was not required to present evidence of S's health. We also reject the defendant's second argument because the evidence amply supports the jury's finding that the defendant caused S to be placed in a situation likely to be detrimental to his health.

Our standard of review of the defendant's claim is well established. "In reviewing a sufficiency of the evidence claim, 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Jackson, 257 Conn. 198, 204-205, 777 A.2d 591 (2001).

"[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 jury's verdict of guilty.... Furthermore, [i]n [our] process of review, it does not...