State v. HONG T.

Decision Date22 July 2004
Docket Number No. CR-02 563146S, No. CR-02 562000S.
Citation854 A.2d 827,48 Conn.Supp. 610
CourtU.S. District Court — District of Connecticut
PartiesSTATE of Connecticut v. HONG T.

Robin D. Cutuli, assistant state's attorney, for the state.

Michael A. Georgetti and Salvatore Bonanno, Hartford, for the defendant.

INTRODUCTION

KELLER, J.

On April 15, 2004, in these consolidated cases, a jury found the defendant guilty in Docket No. CR-02 563146S (the first information) of two counts of assault in the third degree pursuant to General Statutes § 53a-61(a)(1), one count of assault in the second degree with a dangerous instrument in violation of General Statutes § 53a-60(a)(2), and one count of injury or risk of injury to a child in violation of General Statutes § 53-21(a)(1). In Docket No. CR-02 562000S, (the second information) the jury found the defendant guilty of one count of injury or risk of injury to a child in violation of General Statutes § 53-21(a)(2) and one count of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1).2

The defendant has moved for a judgment of acquittal on all counts pursuant to Practice Book § 42-51 or, in the alternative, a new trial pursuant to Practice Book § 42-53. The defendant states three identical grounds for relief in each motion. First, that the evidence was insufficient to support the jury's findings of guilt on the following three counts: assault in the second degree in the first information and the risk of injury and sexual assault in the second degree counts in the second information.3 Second, that the convictions on the four counts in the first information, two counts of assault in the third degree, one count of assault in the second degree and one count risk of injury, violate the double jeopardy rule against multiple punishments for the same offense in a single trial. Third, and finally, that the risk of injury statute, § 53-21(a)(2), alleged in the third count in the second information, as applied to the facts of this case, is so vague and indefinite as to violate due process.

I

The defendant claims that the evidence was insufficient to support a verdict of guilty on the count of assault in the second degree in the first information and on the counts of risk of injury and sexual assault in the second degree in the second information.

In reviewing a claim for insufficiency of evidence, the evidence must be construed in the light most favorable to sustaining the verdict. If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. The question is whether a reasonable view of the evidence supports the jury's verdict of guilty. State v. Torres, 82 Conn.App. 823, 825-26, 847 A.2d 1022 (2004); State v. Leon-Zazueta, 80 Conn.App. 678, 681-82, 836 A.2d 1273 (2003), cert. denied, 268 Conn. 901, 845 A.2d 405 (2004).

With respect to the conviction on the count of assault in the second degree in the first information, the defendant claims that the evidence was insufficient to support the guilty finding. He points to the testimony of the medical director of the hospital emergency unit who examined the victim on June 28, 2002. James F. Wiley, II, M.D., testified in response to a defense hypothetical that striking someone in the genital area with the pointed part of an iron would cause lacerations and/or bleeding. The injuries he noted in the victim's genital area, which she attributed to being struck with a clothes iron by the defendant, were major swelling and extensive bruising, not lacerations or bleeding. The defendant argues that this renders the evidence insufficient to support a verdict for assault in the second degree with a dangerous instrument under § 53a-60(a)(2). Wiley, however, testified that the injuries he observed on the victim were consistent with her being struck in the vaginal area with an iron. He stated that the bruising and swelling he observed in the victim's genital area several days after the alleged assault would be consistent with an iron being rammed into that area, especially if the victim was moving and not being directly penetrated in the vaginal area with the iron. The jury could have reasonably and logically concluded that the injuries observed by the doctor were consistent with the way the victim testified the defendant struck her with the iron, especially given the fact that the victim said she was wearing shorts during the assault.

Moreover, the defendant's argument ignores the essential elements of assault in the second degree. The state does not have to prove bleeding or lacerations were caused by the dangerous instrument to prove the commission of assault in the second degree with a dangerous instrument. Rather, the state has to prove that physical injury, defined as any impairment of physical condition or pain, has been intentionally caused by an instrument capable of causing serious physical injury, defined as any impairment of physical condition, or pain, causing serious disfigurement, serious impairment of health, or serious loss or impairment of the function of any bodily organ. One witness, detective Jeffrey Glaude, testified that the defendant told him he picked up the iron in order to kill himself with it by hitting himself in the head. This evidence of the defendant's own statement, combined with Wiley's testimony, the victim's testimony as well as other evidence, supports the jury's finding of guilt on assault in the second degree.

The defendant next argues that the state's DNA expert, Carl Ladd, Ph.D., of the Connecticut state police forensic laboratory, testified that the small amount of male genetic material on the handle of the sexual aid used in the commission of the sexual assault in the second degree proves the defendant could not have handled the device the way the victim claims he did-repeatedly manipulating it in and out of her vagina.

There was no testimony by Ladd that inevitably calls for any such conclusion. There was testimony that the victim's DNA was present on all portions of the sexual aid, and that there were also smaller amounts of unattributed male DNA on the handle and the midsection of the aid. Ladd further testified that one would not expect extremely large amounts of DNA on an object as the result of a person's touching the device. In fact, he stated that if one were to touch a coffee cup, one might leave some skin cells suitable for a DNA sample, but it would not necessarily happen every time. Nothing about Ladd's testimony was so inconsistent with the other evidence supporting the allegation that the defendant sexually assaulted the victim with the sexual aid he purchased. The jury, viewing all the evidence introduced as to the sexual assault, could have reasonably and logically found that the defendant committed this offense.

Finally, the defendant argues that the evidence on the third count of the second information, risk of injury, was insufficient because the jury could not have found beyond a reasonable doubt that the defendant's inappropriate touching of the fourteen year old victim's intimate parts over the course of a year, on diverse dates between May, 2001 and June, 2002 was "likely to impair her morals," because she admitted that during some part of that same year, she also was having intimate relations with her eighteen year old boyfriend.

At the beginning of the trial, the defendant moved, pursuant to § 4-11(4) of the Connecticut Code of Evidence and General Statutes § 54-86f, for permission to admit evidence of the victim's sexual history with this boyfriend, claiming such evidence was necessary and relevant to the issue of intent in the nonsexual charges in the first information, the cause of the victim's injuries, the victim's credibility and the issue of the origin of fluids found on the sexual aid. The court agreed and granted the defendant's motion to admit such evidence. The defendant made no claim in his motion under § 4-11(4) of the Connecticut Code of Evidence or any argument during the trial that this evidence was admissible to prove either that the victim consented to any inappropriate touching by the defendant or that his inappropriate touching was unlikely to impair her morals. The defendant's trial strategy was to deny steadfastly that the conduct alleged to be in violation of the risk of injury statute in the third count of the second information ever occurred. In light of the statutory restrictions on the admission of such evidence of other sexual conduct of the victim, any suggestion of its use for these latter two purposes would have been ruled improper. "The rape shield statute excludes evidence of prior sexual conduct of the victim of a sexual assault, unless one of the statutory exceptions is satisfied." State v. Christiano, 228 Conn. 456, 459, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S.Ct. 83, 130 L.Ed.2d 36 (1994); State v. Rolon, 257 Conn. 156, 177-78, 777 A.2d 604 (2001); State v. Rinaldi, 220 Conn. 345, 354, 599 A.2d 1 (1991). "Our legislature has determined that, except in specific instances, and taking the defendant's constitutional right into account, evidence of prior sexual conduct is to be excluded for policy purposes." State v. Christiano, supra, at 469, 637 A.2d 382.

To suggest that because two actors were perpetrating sexual abuse on an underage girl, only the first perpetrator would be guilty of risk of injury is not persuasive. In the past, defense attorneys at times had unrestricted opportunity to pursue evidence of the entire sexual history of a sexual assault victim to suggest that a victim who was not "pure" consented to, or at least was not harmed by, the act. It is this kind of highly prejudicial assault on...

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