State v. HOWARD F.

• Decision Date: 28 December 2004
• Docket Number: No. 24281.,24281.
• Citation: 86 Conn.App. 702,862 A.2d 331
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. HOWARD F.

862 A.2d 331

86 Conn.App. 702

STATE of Connecticut v. HOWARD F.¹

No. 24281.

Appellate Court of Connecticut.

Argued October 22, 2004.

Decided December 28, 2004.

David V. DeRosa, special public defender, for the appellant (defendant).

Christine Collyer, special deputy assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Cara F. Eschuk, supervisory assistant state's attorney, for the appellee (state).

FOTI, DRANGINIS and FLYNN, Js.

FOTI, J.

The defendant, Howard F., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2)² and two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2).³ On appeal, the defendant claims that (1) his conviction of two counts of risk of injury to a child violated his due process rights under the double jeopardy clause and (2) the trial court deprived him of his right to a fair trial by commenting on and limiting his cross-examination of a witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was the victim's great uncle. In July, 2000, the victim, her mother and her three younger siblings moved into the defendant's house in Waterbury. The victim was ten years of age at the time.

At some point between July 1, 2000, and March 24, 2001, while the victim was asleep on the couch in the defendant's living room in the downstairs part of the house, the victim was awakened by the defendant, who was shaking her arm. Upon awaking, the defendant told the victim to remove her pants and underwear. The defendant then instructed the victim to bend over and assume a "prayer position." The defendant positioned himself behind the victim and inserted his penis into her vagina.

On another occasion during that same period of time, while the victim was asleep on the floor of an upstairs bedroom, she was again awakened by the defendant. The defendant told the victim "to do the whole process over again." The defendant touched the victim on her breasts, buttocks and groin area, both over and under her clothing. The defendant then had vaginal intercourse with the victim. While this occurred, the victim was scared and cried silently.

On March 24, 2001, the victim became ill at school, vomiting twice. The school nurse called the victim's aunt, who picked the victim up from school. After picking the victim up at school, the victim's aunt purchased a pregnancy test from a pharmacy. The pregnancy test revealed that the victim was pregnant. At that point, the victim told her mother and three relatives what the defendant had done to her. The victim was then taken to Waterbury Hospital, where it was confirmed that the victim was approximately fourteen weeks pregnant.

Because of her age and lack of physical development,⁴ the victim's pregnancy was terminated on March 28, 2004. The victim was eleven years old at that time. DNA testing of blood drawn from the victim and the defendant and of the fetus' tissue resulted in a finding consistent with the defendant being the paternal contributor to the fetal tissue.

The defendant subsequently was arrested and, following a jury trial, convicted of one count of sexual assault in the first degree and two counts of risk of injury to a child. The defendant was sentenced to a total effective term of thirty years imprisonment. This appeal followed.

I

The defendant first claims that his conviction of two counts of risk of injury to a child violated the prohibition against double jeopardy under both the federal and state constitutions.⁵ We disagree. The defendant did not preserve this claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁶ "A defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial ... even if the sentence for one crime was concurrent with the sentence for the second crime." (Citation omitted.) State v. Crudup, 81 Conn.App. 248, 252, 838 A.2d 1053, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004). Accordingly, we will review the defendant's claim. Because the defendant's claim presents an issue of law, our review is plenary. Id.

"The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.... This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment.... This constitutional guarantee serves three separate functions: (1) It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense [in a single trial]." (Citations omitted; internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 360-61, 796 A.2d 1118 (2002). The defendant's claim in this appeal implicates the last of these three functions.

"The double jeopardy analysis in the context of a single trial is a two part process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.... With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.... [T]he role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.... On appeal, the defendant bears the burden of proving that the prosecutions are for the same offense in law and fact." (Citations omitted; internal quotation marks omitted.) Id., at 361, 796 A.2d 1118.

It is the defendant's claim on appeal that his conviction of two counts of risk of injury to a child violated the prohibition against double jeopardy. The defendant's claim is premised on his belief that it would violate the double jeopardy clause if he were convicted of both sexual assault in the first degree and risk of injury to a child for the events that transpired downstairs in his living room. Therefore, the defendant argues that both risk of injury counts had to have been based on the events that transpired upstairs in the bedroom. Because the defendant claims that the actions underlying each count occurred during the same act or transaction, he argues that his conviction of two counts of risk of injury to a child violated the prohibition against double jeopardy. We disagree.

A

We initially note that the premise underlying the defendant's claim, that it would violate the prohibition against double jeopardy to be convicted of both sexual assault in the first degree and risk of injury to a child for the assault that occurred in the living room, was raised for the first time in the defendant's reply brief. "It is a well established principle that arguments cannot be raised for the first time in a reply brief.... Claims of error by an appellant must be raised in his original brief ... so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant's reply brief is to respond to the arguments and authority presented in the appellee's brief, that function does not include raising an entirely new claim of error." (Citations omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn.App. 146, 163-64, 783 A.2d 1226 (2001). Accordingly, we decline to review this aspect of the defendant's claim.⁷

B

It is the defendant's claim that both risk of injury counts arose from the same act or transaction, namely the events that transpired in the bedroom. The defendant contends that there was "no competent evidence placed before the jury to allow it to find that both counts of risk of injury to a [child] were for any conduct other than a series of acts or transaction[s] during a discrete period of time in the bedroom." The state counters that the first risk of injury count related to the events that transpired in the bedroom and that the second risk of injury count related to the events that transpired in the living room. We agree with the state.

As we have stated: "[T]o prevail on his claim, the defendant must show (1) that the charged offenses arose out of the same act or transaction, and (2) that the two convictions are in reality the same offense. Multiple punishments are forbidden only if both conditions are met.... For the first prong of the analysis of the defendant's claim, it is necessary to review the information and the bill of particulars." (Citation omitted; internal quotation marks omitted.) State v. Vasquez, 66 Conn.App. 118, 123-24, 783 A.2d 1183, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001).

Our review of the record leads us to the conclusion that the two risk of injury counts arose from two separate incidents, one occurring in the living room and one occurring in the bedroom. In the first risk of injury count, the state alleged that, between July 1, 2000, and March 24, 2001, the defendant had contact with the intimate parts of the victim in a sexual and indecent manner, specifically, the victim's breasts and genital area, thereby likely impairing the morals of the victim, who was a child under the age of sixteen. In the second risk of injury count, the state alleged that, between July 1, 2000, and March 24, 2001, the defendant subjected the victim to contact with his...