State v. Hermann, 12328

• Decision Date: 23 May 1995
• Docket Number: No. 12328,12328
• Citation: 658 A.2d 148,38 Conn.App. 56
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Scott HERMANN.

Page 148

658 A.2d 148

38 Conn.App. 56

STATE of Connecticut v. Scott HERMANN.

No. 12328.

Appellate Court of Connecticut.

Argued Jan. 9, 1995.

Decided May 23, 1995.

Howard A. Lawrence, with whom was Lawrence S. Dressler, for appellant (defendant).

Marjorie Allen Dauster, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Gary Nicholson, Asst. State's Atty., for the appellee (state).

Before HEIMAN, SPEAR and FRANCIS X. HENNESSY, JJ.

FRANCIS X. HENNESSY, Judge.

The defendant, Scott Hermann, appeals from his conviction, following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), risk of injury to a child in violation of General Statutes § 53-21, and interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal, (2) denied his motion to sever the trial on interfering with an officer from the trial on sexual assault and risk of injury, (3) failed to declare a mistrial for the state's loss of potentially exculpatory evidence, (4) admitted into evidence a tape-recorded statement of the defendant for both substantive and impeachment purposes, (5) refused to allow the defendant to discredit his brother's testimony by questioning him as to his drug and alcohol use, and (6) failed to exclude evidence of domestic violence.

The jury could reasonably have found the following facts. In the spring of 1991, the eight year old victim lived with her mother, her older sister, her six year old brother, the defendant, and the defendant's fifteen year old brother. The defendant was the boyfriend of the victim's mother. On the evening of April 15, 1991, the victim's mother and the defendant argued, and the victim's mother told the defendant to leave the house. The defendant left, but returned before the victim's mother left for work. The victim's mother worked from 11 p.m. to 7 a.m. at a nursing home, and the defendant was usually responsible for the care of the children while the victim's mother was at work.

When the victim's mother left for work, the defendant remained in the house with the victim, the victim's six year old brother and the defendant's brother. The victim fell asleep on the couch while watching television. She was awakened when the defendant removed her clothing and laid on top of her. She told the defendant that she was cold and he dressed her and carried her into her bedroom. After looking in on her several times, the defendant gave the victim something to drink to help her get to sleep. Thereafter, when the victim was drowsy but still awake, the defendant returned to the room, taped the victim's mouth and hands, placed the victim on the bedroom floor and removed her pants and underwear. He placed himself on top of her and put his fingers into her vagina.

The victim's cries awakened her younger brother who came to the bedroom and saw the defendant on the floor on top of his sister. The boy returned to bed after being told to do so by the defendant. The defendant removed the tape from the victim's face and left the house for a few minutes. The victim went into the bathroom, examined herself and found that she was bleeding from the vagina. She then called her mother's place of employment but before the phone was answered she heard the defendant returning. She hung up, went to her bedroom, locked the door and eventually fell asleep. The next morning, when the victim's mother returned home from work, the victim's brother told his mother what he had seen and heard. The victim's mother awakened the victim and, after the victim told her what had happened, called the police.

I

The defendant initially claims that the trial court improperly denied his motion for judgment of acquittal because there was no evidence that he engaged in sexual intercourse with the victim as defined in General Statutes § 53a-65(2). ¹ The relevant portion of § 53a-65(2) provides that "penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim's body." The defendant argues that because Webster's Third New International Dictionary defines manipulate to mean "to treat, work or operate with the hands," and because a finger is a part of a hand, a finger cannot be "an object manipulated by the actor" under § 53a-65(2). The defendant would have us conclude that digital penetration of a victim's vagina does not constitute sexual intercourse as defined in s53a-65(2). We are not persuaded.

Our decision in State v. Grant, 33 Conn.App. 133, 634 A.2d 1181 (1993), is dispositive of this claim. In Grant, we held that "[t]he general purpose of the statute in question ² is to protect children from being sexually violated. The statute proscribes sexual intercourse--the act of penetration, however slight. Thus, the statutory purpose is met regardless of what particular object is used to accomplish that penetration. Further, the statute elsewhere specifically prohibits penetration using other parts of the actor's body. It would be unreasonable to conclude that penetration by the actor's tongue or penis constitutes sexual intercourse, while penetration by a finger does not. Statutes should be construed so as not to reach an absurd or unreasonable result. State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980)." Id., at 141, 634 A.2d 1181. The trial court was correct in denying the defendant's motion for judgment of acquittal. ³

II

The defendant next claims that the court improperly denied his motion for a separate trial on the charge of interfering with an officer. He argues that the trial court's refusal to sever the interfering charge from the charges of sexual misconduct resulted in substantial injustice and extreme prejudice to him. We disagree.

The following additional facts are necessary to dispose of this claim. The morning after the victim was assaulted, a surgical glove was found in the upper bunk of the bunkbed in the victim's room. Because of her job, the victim's mother had a box of surgical gloves to which the defendant had access. As part of the state's case-in-chief, Detective Paul Hemingway testified that the surgical glove found in the victim's bedroom possibly had been worn by the defendant when he assaulted the victim.

Following his arrest, after being transported to the police station and in the presence of police officers, the defendant reached into his trousers, removed a surgical glove and, despite the efforts of the officers to prevent him from doing so, flushed the glove down the toilet. This conduct by the defendant is the basis for the interfering charge.

The trial court, in accordance with Practice Book § 828, ⁴ is authorized to order separate trials if the joinder of offenses in a single trial will prejudice the defendant. " 'In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. State v. Greene, 209 Conn. 458, 463 551 A.2d 1231 (1988).' " State v. Jennings, 216 Conn. 647, 657, 583 A.2d 915 (1990). The trial court's role is to determine whether severance is required to avoid the risk that, although evidence admitted on one charge might not persuade the jury of the accused's guilt on that charge, the cumulative effect of all the evidence will persuade the jury of the accused's guilt on all the charges. State v. Boscarino, 204 Conn. 714, 721-22, 529 A.2d 1260 (1987).

The factors to be considered by the trial court in determining whether severance is necessary include: "(1) whether the charges involved discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part; and (3) the duration and complexity of the trial." (Internal quotation marks omitted.) 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). "If any or all of these factors are present, a reviewing court must decide whether the trial court's jury instructions cured any prejudice that might have occurred." State v. Jennings, supra, 216 Conn. at 658, 583 A.2d 915. Applying these factors to the present case, we find that the defendant was not prejudiced by the denial of his motion to sever.

First, the sexual assault and risk of injury counts involve activity between the defendant and an eight year old at the place where both resided. The interfering count involves an altercation between the defendant and police at the police station. The two sets of charges are separate and easily distinguishable. Second, we held in State v. Grant, supra, 33 Conn.App. at 138, 634 A.2d 1181, that counts involving sexual assault and risk of injury to children are not necessarily so brutal and shocking as to mandate severance, even from charges of a similar nature, if the jury is properly instructed to consider the counts separately. Third, the six day trial with testimony from eighteen witnesses was not so long or so complex that the charge of interfering could become confused with the sexual assault charges. See State v. Jennings, supra, 216 Conn. at 659-60, 583 A.2d 915 (trial of five days with fourteen witnesses not unduly long or complex); State v. Herring, supra, 210 Conn. at 97, 554 A.2d 686 (trial of eight days with twenty-three witnesses not unduly long or complex).

We also note that "where evidence of one incident can be admitted at the trial of the other incidents, separate trials would provide the defendant no significant benefit, and under such circumstances he would ordinarily not be substantially prejudiced by joinder." State v. Crosby, 36 Conn.App. 805, 810, 654 A.2d 371 (1995). The defendant's argument here is that the introduction of evidence concerning the disposal of the glove at the police station, combined with...