State v. Grant

• Decision Date: 30 November 1993
• Docket Number: No. 11421,11421
• Citation: 634 A.2d 1181,33 Conn.App. 133
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. James GRANT, Jr.

Page 1181

634 A.2d 1181

33 Conn.App. 133

STATE of Connecticut v. James GRANT, Jr.

No. 11421.

Appellate Court of Connecticut.

Argued Sept. 28, 1993.

Decided Nov. 30, 1993.

Herbert R. Scott, New Haven, for appellant (defendant).

Margaret Gaffney Radionovas, Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Cara F. Eschuk, Asst. State's Atty., for appellee (state).

Before FOTI, LAVERY and HEIMAN, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the second degree in violation of General Statutes § 53a-71, ¹ and four counts of risk of injury to a child in violation of General Statutes § 53-21. ² The defendant claims that the trial court improperly (1) permitted him to be tried jointly for offenses arising out of two different cases, (2) held that penetration of the vagina of a child with a finger or fingers constituted an act of sexual assault in the second degree, and (3) allowed the admission of certain photographic evidence. We affirm the trial court's judgment.

The jury could reasonably have found the following facts. The defendant and his wife were married in 1973 and separated in 1988. The defendant moved into the house of his mother and stepfather in Waterbury and a visitation schedule was agreed on allowing him to visit with his four children, a son and three daughters. Visitation included overnight stays on weekends at his parents' home.

Around Easter, 1988, the defendant began sexually molesting his daughter A, who was then seven years old. It began by the defendant taking A into his bedroom, alone, and tickling her between her legs while she was clothed. He told her she was all right when she told him to stop and began crying. A couple of weeks later, he called A into his bedroom, took her pants off and started playing with her vagina by putting his fingers inside. After the incident, A refused to go upstairs with the defendant when asked until he began yelling at her. Sometimes, she would resist further by going into the bathroom. The defendant would knock on the door and tell her to come out; when she did, he would take her into the bedroom, shut the door, and put his fingers inside her vagina. When he did this A would cry and tell him to stop and "that she did not like that." The defendant responded that "it was all right; that [she] was his little girl; [and] that he wasn't going to hurt her."

Thereafter, the defendant began inserting his penis inside A's vagina. A would sit on the bed and the defendant would tell her to lie down. When A complied, the defendant took off her pants, took down his own pants, and spread A's legs apart. The child would close her eyes; she knew her father was putting his penis inside her because "it was hard," "it hurt" and "it didn't feel like his fingers anymore." The defendant positioned himself above her, keeping himself up, pushing on the bed so he would not fall on her, and moved his penis back and forth. A could feel the bed move. She cried because it hurt, more than when the defendant put his fingers inside her. The defendant told A she was "a big girl" and that "everything was going to be all right." After about five minutes, the defendant pulled up his pants and went into the bathroom. A noticed that the bed was a little wet but she did not know why it was wet. After the defendant left the bathroom, A went in and cleaned herself up with a washcloth. Sexual attacks occurred on almost every visit until sometime in August or September, 1988.

On March 4, 1991, A gave a statement to a police officer about the sexual assaults. She had not told anyone about the episodes earlier because she did not want to talk about it and did not want anyone, including her mother, to know. She did not tell her mother because she did not "really think it was really any of her business."

The younger victim, T, testified about two incidents in which the defendant penetrated her vagina using a washcloth while he was bathing her. One of the incidents occurred while T and her siblings were visiting the defendant at his parents' home in Waterbury. T was six years old at the time. ³ On that occasion, the defendant touched her in the vagina with a washcloth. The defendant washed her and she complained that it hurt because he pushed the washcloth in her vagina. She told him that it hurt and the defendant responded that it was okay. T did not think he was just washing her because he pushed the washcloth "really hard."

I

The defendant first claims that the trial court improperly granted the state's motion to consolidate. He argues that combining the two cases, which were extremely detrimental to each other, so prejudiced the jury as to deprive him of his right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

General Statutes § 54-57 ⁴ and Practice Book § 829 ⁵ permit a defendant to be tried jointly on charges arising from separate cases. "When a defendant stands accused of two or more similar offenses, they may be joined at trial if they are based on related acts that evince a common scheme, intent or motive." State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988). The question of joinder or severance rests in the sound discretion of the trial court. State v. Boscarino, 204 Conn. 714, 720, 529 A.2d 1260 (1987); State v. Carpenter, 19 Conn.App. 48, 62, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). The defendant bears the heavy burden of showing that a denial of severance resulted in substantial injustice beyond the curative power of jury instructions. State v. Herring, 210 Conn. 78, 95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989). Whether a joint trial will be substantially prejudicial to the rights of the defendant means something more than that it will be less advantageous to the defendant. State v. Bell, 188 Conn. 406, 411, 450 A.2d 356 (1982)." State v. Rose, 29 Conn.App. 421, 429-30, 615 A.2d 1058, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992).

Evidence that the defendant had engaged in sexual activity with one daughter would have been admissible in a trial involving the other daughter for purposes of showing a common scheme or plan. See State v. Morowitz, 200 Conn. 440, 444, 512 A.2d 175 (1986); State v. Hart, 26 Conn.App. 200, 202-203, 599 A.2d 748 (1991). The incidents were sufficiently similar to demonstrate a pattern of action. See State v. Hart, supra. "Where evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial." (Emphasis in original.) State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987).

"A trial court will not have manifestly abused its discretion in denying severance if the state's orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly." Id. The evidence in this case was presented to the jury in an orderly fashion, distinguishing the acts involving each child in a logical and separate manner. The two cases were presented separately. Each of the seven counts was tendered independently, with separate instructions from the court to the jury as to the elements of each, and an indication as to which child a particular count referred. Our review of the record also discloses that the matters were not so complex, ⁶ nor so brutal or shocking, in the sense of being inordinately violent or callous, ⁷ as to have mandated severance.

The trial court did not manifestly abuse its discretion in granting the state's motion to consolidate; the defendant was not substantially prejudiced by joinder of the offenses for a single trial.

II

The defendant next claims that the evidence was insufficient to sustain a conviction for sexual assault in the second degree under General Statutes § 53a-71 because penetration of the vagina with a finger or fingers does not fall within the definitions of sexual intercourse as defined by General Statutes § 53a-65(2). ⁸ He argues that a finger cannot be an "object manipulated by an actor." ⁹ While the defendant concedes that a dictionary definition of "object" may include a finger, he argues that, within the meaning of the statute, the word "manipulated" causes the word "object" to mean something separate and apart from the hand. We do not agree.

"It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent." All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989); Green v. Warden, 178 Conn. 634, 637-38, 425 A.2d 128 (1979). A statute must be applied as its words direct. New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975). Words in a statute must be given their plain and ordinary meaning and be interpreted in their natural and usual sense unless the context indicates that a different meaning was intended. Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981).

The defendant urges us to adhere to a strict construction and to adopt a narrow and technical definition of "manipulate" to mean "operate or treat by the hand." In the context of the statute, the phrase "object manipulated by an actor" does not lead us to conclude that because a finger is part of the hand, it cannot be operated or treated by the hand. We do not go beyond the plain words of the statute. Even accepting the definition proposed by the defendant, since "manipulate" is not expressly defined in the penal code, we cannot conclude that an actor...