State v. Hector M.

• Decision Date: 25 February 2014
• Docket Number: AC 34642
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. HECTOR M.

STATE OF CONNECTICUT v. HECTOR M.¹

AC 34642

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued November 20, 2013

Officially released February 25, 2014

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(Appeal from Superior Court, judicial district of

Waterbury, Cremins, J.)

Mary Beattie Schairer, assigned counsel, for the appellant (defendant).

Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Catherine Brannelly Austin, senior assistant state's attorney, for the appellee (state).

Opinion

GRUENDEL, J. The defendant, Hector M., appeals from the judgment of conviction, rendered after a trial to the court, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2), two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and one count of risk of injury to a child in violation of § 53-21 (a) (1). On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to support his conviction of sexual assault in the second degree, sexual assault in the third degree, and risk of injury to a child, and (2) the conviction of risk of injury to a child under § 53-21 (a) (1) should be dismissed because the statute is void for vagueness.² We affirm the judgment of the trial court.

The following evidence supports the trial court's finding of guilt in the present case. The defendant and his biological daughter, Y, began living together in September, 2008, when she was thirteen years old.³ The defendant was in the military and spoke with Y about "one of his best friends," Estephan Elson, who he claimed had fought at war with him and who also had a daughter, Elizabeth. The defendant told Y that Elizabeth "was sixteen years old . . . and that she had a sexual relationship with her father." The defendant, under the guise of both Estephan Elson and Elizabeth Elson, began communicating with Y through e-mail on a daily basis.

In December, 2009, Y was first approached about her "destiny." The defendant and Y went to visit the grave of Y's grandmother, where the defendant told her, "your grandmother loved me a lot, and I remember one day she had [sat] me and your mother down, and she was telling me that this relationship wasn't going to last. . . . [S]he told me that your mother's going to bring the woman of his life into his life, take her away, and drop her off at his doorstep. And [the defendant] asked [Y] if [she] knew what that meant . . . . And he had told [her] that he was going to ask Elizabeth Elson and Estephan Elson if they understood what it meant. And that very day," Y testified, "Elizabeth Elson, Estephan Elson, had wrote to me in the e-mail, stating what the destiny was about, and the destiny was, it was me, that my mother brought me into his life, took me away, and dropped me off at his doorstep." According to Estephan Elson and Elizabeth Elson, Y's destiny was "to save [the defendant's] life, and his eight soldiers. And a part of that destiny was to be the woman of his life . . . taking care of him, and also having sexual intercourse with [him]."

Y did not want to accept her "destiny," but she testified that "in the e-mails [Estephan Elson and ElizabethElson] kept antagonizing me, saying that my dad was going to die, my sister was going to die and [Estephan Elson] was going to die . . . . [H]e was saying that I don't want that kind of blood on my hands . . . that I'm going [to] regret it for the rest of my life . . . ." Estephan Elson specifically told Y that he went to a priest about Y's destiny, to which the priest allegedly explained to Estephan Elson, who then wrote it in an e-mail to Y, about "the significance of the destiny and . . . how strong the destiny is, and that . . . [it] is going to basically end horribly." Y testified that because of "the way [the e-mail was] written and . . . having to do with God," it made her believe that her destiny was real and that she must fulfill it. It was after all of the e-mails that Y finally agreed to her destiny and to be her "father's woman" because she "did not want [her] little sister to grow up without a father. [She] did not want the eight soldiers . . . [or her] father to die because [she] trusted [the defendant] and [she] believe[d] that what [the defendant, Estephan Elson, and Elizabeth Elson were] saying was true."

Y was advised, by Elizabeth Elson and Estephan Elson, how to complete her destiny—by "rubbing" private parts with the defendant. As Y testified, she was told that "[w]e were to strip into our underwear, I had to wear my bra and my panties and he had to stay in his boxers. And he had to lay his penis on his stomach, and I had to lay on the side of him, and he had to . . . rub . . . my clitoris until I was to get wet and then I had to go on top of him and rub until we both had an orgasm."

On December 29, 2009, when Y was under the age of sixteen, the defendant brought Y and his other daughter to Coco Keys in Waterbury, a hotel and waterpark. On the way, the defendant stopped to purchase Smirnoff green apple and strawberry liquor as well as a box of condoms. After playing at the waterpark and putting the younger daughter to bed, the defendant opened the alcoholic beverages. He provided the Smirnoff to Y, and she testified that she had "a couple of sips" of hers. She did not continue to drink, she testified, because "it just felt weird." Y then put on a new outfit she received for her birthday, and the defendant took photographs of her in the hotel bathroom. He then said, "well, it's getting late, and let's do this already."

Y then "stripped down to [her] bra and panties, and [she] laid right on the side of [the defendant]," and he asked if she was ready. When she said no, the defendant stated, "well, we have to do this," and then he put his hands between her labia majora,⁴ rubbing her clitoris. The defendant "grabbed his penis, laid it right on his stomach, and [Y] got on top and [they] just started rubbing." The defendant's penis was, according to Y, touching her "clitoris and . . . between . . . [her labia majora]." Later, the defendant "took off [Y's] pant-ies and just stuck it in . . . at least two times" until Y pushed him off of her. The defendant ejaculated after touching his own penis while rubbing Y's clitoris. The next morning, the defendant told Y, "you saved us, baby, you saved us."⁵

The defendant thereafter was arrested and charged with the aforementioned crimes. A trial followed, at the conclusion of which the court found the defendant guilty. The court rendered judgment accordingly and sentenced him to a total effective term of twenty-six years imprisonment, execution suspended after fourteen years, with twenty-five years of probation.⁶ This appeal followed.

I

The defendant claims that there was insufficient evidence to support his conviction of sexual assault in the second degree, sexual assault in the third degree, and risk of injury to a child. These claims are unavailing.

"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. . . . In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury's factual inferences that support a guilty verdict need only be reasonable. . . .

"[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,...