State v. Gonzalez

• Decision Date: 12 March 2019
• Docket Number: AC 41512
• Citation: 188 Conn.App. 304,204 A.3d 1183
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jose Diego GONZALEZ

188 Conn.App. 304

204 A.3d 1183

STATE of Connecticut

v.Jose Diego GONZALEZ

AC 41512

Appellate Court of Connecticut.

Argued October 17, 2018

Officially released March 12, 2019

Kevin W. Munn, assigned counsel, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Stacey M. Miranda, senior assistant state's attorney, for the appellee (state).

Lavine, Keller and Bishop, Js.

LAVINE, J.

The defendant, Jose Diego Gonzalez,¹ appeals from the judgment of conviction, rendered after a jury trial, of one count of home invasion in violation of General Statutes § 53a-100aa(a)(1), three counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), and one count of risk of injury to a child in violation of General Statutes § 53-21(a)(2). On appeal, the defendant claims that there was insufficient evidence that he intended to commit sexual assault by force at the time he entered the victim's home.² He also claims that the prosecutor's closing argument was improper and (1) deprived him of his right to be heard by counsel during final argument, (2) deprived him of the right to a fair trial, and (3) entitled him to a new trial on the charge of home invasion. We disagree and, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following facts on the basis of the evidence presented at trial. The victim was ten years old on October 15, 2014, when the defendant entered her first floor apartment in a three-family house in Meriden at approximately 3:40 a.m. At that time, the victim, her mother, her mother's boyfriend, and the victim's younger siblings and stepsiblings were asleep in their respective bedrooms.³ The front door, a living room window, and the victim's bedroom window faced the front of the house above the porch that ran across the front of the house. The victim's brother had a bedroom in the rear of the apartment with a window above a hatchway that the defendant could have used to enter the apartment.

Earlier, at approximately 8 p.m., the victim had fallen asleep in her bed in the room that she shared with her stepsisters. The victim awoke shortly before 3:45 a.m. when she felt someone touch her lower back. She saw a black man with short dreadlocks leaning over her. She did not know him, asked him who he was, and what he was doing there. The defendant did not answer her but asked her how old she was. She stated that she was eight years old, hoping that he would leave her alone. The defendant touched the victim's buttocks beneath her shorts and underwear. The victim pushed herself against the wall to stop him. The defendant took hold of the victim's ankles and put one over each of his shoulders and told her that "this wouldn't hurt ...."

The defendant pulled the victim's shorts and underwear down to her knees and put a pillow over her face. He pulled down his own pants, and rubbed and licked the victim's vagina before penetrating it with his penis. The victim tried to get away from the defendant, but she could not free herself from his grip. When the defendant finished, he pulled up the victim's underwear and shorts and threatened to kill her if she told anyone what he had done. He covered her with a blanket and told her to go to sleep. The defendant walked out of the victim's bedroom and partially closed the door. The victim watched him walk through the kitchen toward her brother's bedroom. The window in her brother's room was wide open. No one else in the house was aware of the defendant's presence. The victim's sisters remained asleep, and her brother heard nothing.

The victim's mother had awakened at approximately 3:20 a.m., gone into the kitchen to get a bottle to feed her infant, and returned to her bedroom. She saw no one in the apartment at that time. Later, when the victim's mother went back to the kitchen, she saw the victim standing at her bedroom door. The victim, shaking with fright, ran into the kitchen and stated that there was a "black guy" in her room. When the victim and her mother entered the victim's bedroom, they saw the defendant peering in the window from the front porch. The victim's mother had never seen the man before. He had dark skin and a braid hanging out of his hoodie. The defendant ran toward the back of the house. The victim's mother tried to pursue him, but she could not keep up with him.

The victim told her mother what the defendant had done to her. When the victim went to the bathroom, she saw a clear, wet substance on her vagina and asked her mother if she could wash. The victim's mother, who was medically trained, recognized the presence of semen in her daughter's underwear. She instructed the victim not to wipe off anything. The police were summoned.

The victim was taken by ambulance to Midstate Medical Center in Meriden, but because Midstate Medical Center does not perform rape kits on children, she was transported to Yale-New Haven Hospital where Deborah Jane Gallagher, a nurse, administered a rape kit. Gallagher used swabs to obtain DNA samples from the victim's vagina and fourchette, which was torn. Gallagher also took a sample of the victim's blood that would be used to compare the victim's DNA with the DNA collected on the swabs. At the conclusion of the examination, the victim went to the Department of Children and Families' child sexual abuse clinic on Long Wharf Drive in New Haven, where she was interviewed. During the forensic interview, the victim described the perpetrator as having a scratch on his left cheek, clean shaven, and approximately forty years old. The defendant was twenty-three years old and had a full beard and mustache when he was arrested two days later.

The police searched the victim's apartment, focusing their attention on her bed and two windows in her brother's room. They were able to lift fingerprints from the windows, but some of the fingerprints were insufficiently defined to be evaluated. Other fingerprints did not match the defendant's or those of anyone in the police database.⁴

The police identified the defendant, an African-American man with short dreadlocks, as a suspect and arrested him in Waterbury on October 17, 2014. At the time of the defendant's arrest, the police obtained a sample of the defendant's DNA from the inside of his cheek.

Daniel T. Renstrom, a DNA analyst at the state forensics laboratory, testified about his analysis of the DNA samples that were sent to the laboratory. He developed profiles of the victim's and the defendant's DNA, and a profile of the DNA on the swabs of the victim's vagina and fourchette. Renstrom divided the DNA samples from the victim's vagina and fourchette into two components, an epithelial or nonsperm-rich fraction and a sperm-rich fraction. He compared the two fractions to DNA profiles of the victim and the defendant. The swab of the victim's fourchette contained a mixture of DNA, that is, DNA from more than one contributor. Renstrom determined that the victim was the source of the epithelial fraction from the DNA sample from her fourchette, but he could not identify the other contributor due to an insufficient amount of DNA. Pursuant to the laboratory's policy, Renstrom eliminated the defendant as a DNA contributor to the DNA mixture from the victim's fourchette.

The DNA profile obtained from the swab of the victim's vagina also produced a mixed DNA profile. The swab contained both saliva and spermatozoa. The victim was a contributor to the epithelial fraction. The sperm-rich fraction contained a mixture of DNA from both the victim and the defendant.⁵ The number of people who have the DNA profile that was identified as the defendant's is approximately one in 52 million in the African-American population, one in 37 million in the Hispanic population, and one in 66 million in the Caucasian population.

The defendant was charged in a long form information with home invasion in violation of § 53a-100aa(a)(1), three counts of sexual assault in the first degree in violation of § 53a-70(a)(2), and one count of risk of injury to a child in violation of § 53-21(a)(2). On December 15, 2016, a jury returned a verdict of guilty on all counts charged. Thereafter, the defendant filed a motion for a judgment of acquittal as to his conviction of home invasion⁶ and a motion for a new trial on the ground of prosecutorial impropriety.⁷ The court denied both motions. On February 24, 2017, the court sentenced the defendant to an effective term of sixty-five years imprisonment. The defendant appealed.

I

The defendant first claims that the state failed to present sufficient evidence for the jury to find that he intended to commit a sexual assault by force at the time he entered the victim's home, as was required to convict him of home invasion. We disagree.

The state alleged in count one of the long form information that on or about October 15, 2014, at approximately 3:41 a.m., the defendant "unlawfully entered a dwelling, while a person other than a participant in the crime (to wit: [the victim] ) was actually present in such dwelling, with intent to commit a crime therein (to wit: Sexual Assault in the First Degree [§] 53a-70[a][1] ),⁸ and, in the course of committing the offense: he committed a felony against the person of another person other than a participant in the crime who was actually present in such dwelling, said conduct being in violation of [§] 53a-100aa(a)(1) of the Connecticut General Statutes."⁹ (Footnote added.)

"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.... [P]roof beyond a reasonable doubt does not mean...