State v. Hufford

• Decision Date: 01 December 1987
• Docket Number: No. 12954,12954
• Citation: 205 Conn. 386,533 A.2d 866
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Steven H. HUFFORD.

Page 866

533 A.2d 866

205 Conn. 386

STATE of Connecticut v. Steven H. HUFFORD.

No. 12954.

Supreme Court of Connecticut.

Argued Oct. 1, 1987.

Decided Dec. 1, 1987.

Jon L. Schoenhorn, with whom was Dennis P. McMahon, for appellant (defendant).

Leah Hawley, Deputy Asst. State's Atty., with whom were James G. Clark, Asst. State's Atty., and, on the brief, Rosita Creamer, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and HEALEY, GLASS, COVELLO and HULL, JJ.

HULL, Associate Justice.

The defendant was charged by substitute information with the crimes of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(3), ¹ sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1), ² and sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1)(C) and/or (a)(2). ³ After a jury trial, the defendant was acquitted of sexual assault in the second degree and found guilty of sexual assault in the third degree and sexual assault in the fourth degree.

On appeal, the defendant claims that: (1) the state failed to prove the defendant guilty beyond a reasonable doubt of sexual assault in the third degree; (2) the state failed to prove the defendant guilty beyond a reasonable doubt of sexual assault in the fourth degree; (3) the trial court erroneously instructed the jury on circumstantial evidence; (4) the trial court erroneously refused to charge the jury on the element of intent necessary for a conviction of sexual assault in the fourth degree; and (5) the defendant's constitutional rights to confrontation and cross-examination of adverse witnesses were violated by the trial court's denial of his motion for disclosure of the complainant's psychiatric records. We find error.

The jury could reasonably have found the following facts. On October 15, 1984, the complainant and her husband, from whom she had filed for divorce, were engaged in an argument, at their East Hartford home, ⁴ over items allegedly missing from there. When the complainant became very excited and began to hyperventilate, her husband called the police. Upon their arrival with paramedics, her husband told them the complainant had threatened to commit suicide. Although the complainant was crying and upset and frightened, the police and paramedics saw no evidence that she had tried to harm herself. Based on their observations and the information given them by her husband, they decided she should be taken to the hospital for observation. They called Ambulance Service of Manchester and an ambulance responded with two emergency medical technicians, the defendant and Douglas Bearse. The complainant resisted going to the hospital and the police and paramedics decided she should be restrained. The defendant and Bearse tied pillow cases around the complainant's limbs and secured them to the stretcher with tape. She was placed in the ambulance and taken to the Hartford Hospital emergency room. The complainant remained in the hospital, in restraints, for more than two and one-half hours, shouting several times to attract attention to her situation. Eventually she was seen by a psychiatrist and released.

The sexual assault is alleged to have occurred during the ride to the hospital. The facts are in dispute. The complainant testified that during the ride, the defendant unbuttoned her blouse and unzipped her pants, and over her verbal protests fondled her breasts and massaged her vagina. The defendant testified that after the complainant was placed in the ambulance, he took her vital signs, that during the trip, he again took her vital signs, that he noticed that the top two buttons of the complainant's blouse were open and that he buttoned them, and that it was possible that he brushed up against her breast while taking her blood pressure, but did not actually recall doing so. He denied the complainant's assertion that he had intentionally touched her breasts and inserted his fingers in her vagina. Bearse, who was driving the ambulance, testified that he had a partial view of the rear compartment of the vehicle where the defendant and the complainant were, and that he could hear the complainant yelling that she did not want her belongings taken from her. He said he saw the defendant doing paperwork.

I

The defendant's first challenge is to the sufficiency of the evidence to prove beyond a reasonable doubt that he committed sexual assault in the third degree as charged in count two of the substitute information. He contends that the state presented no evidence that the defendant used force to compel the alleged sexual contact. At the close of the state's case and at the close of all the evidence, the defendant moved for judgment of acquittal on all charges. Both motions were denied. ⁵

In considering a challenge to the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Simino, 200 Conn. 113, 116, 509 A.2d 1039 (1986); State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76 (1985). In other words, this court must ascertain "whether, viewing the evidence favorably to sustaining the verdict, the trier could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt." State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985).

The state was required to prove beyond a reasonable doubt that the defendant used force to compel the alleged sexual contact. General Statutes § 53a-72a(a)(1)(A). General Statutes § 53a-65(7)(B) defines "use of force" as "use of actual physical force or violence or superior physical strength against the victim." The defendant argues that the state did not prove use of force as that term is defined by the statute. The state counters that by partially undressing the complainant and touching her, the defendant exerted all the force necessary to compel the complainant's submission to sexual contact. We agree with the defendant.

Penal statutes are to be construed strictly; State v. Paradise, 189 Conn. 346, 352, 456 A.2d 305 (1983); and not extended by implication to create liability that the legislature did not purport to create. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). Words and phrases, however, are to be understood according to the commonly approved usage of the language; General Statutes § 1-1(a); and words used in a criminal statute should not be accorded the narrowest technical meaning in disregard of their context and in frustration of the obvious legislative intent. State v. Roque, supra. We have previously acknowledged that the statutory definition of "use of force" is clear and that "it contains no words not commonly used which might not be understood in their ordinary meaning." State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982).

This court has not heretofore considered any case in which mere touching was alleged to be the force necessary to a sexual assault. Rather, where we have found use of force proven, the evidence demonstrated either violence or some other form of physical coercion. See, e.g., State v. Monk, 198 Conn. 430, 503 A.2d 591 (1986) (defendant forced victim into car, struggled with her, choked her and sexually assaulted her while another held her down); State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985) (defendant strangled victim into unconsciousness); State v. Rothenberg, 195 Conn. 253, 487 A.2d 545 (1985) (defendant took victim by the arms and pulled her, struggling, to the couch); State v. Green, 194 Conn. 258, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 964, 83 L.Ed.2d 969 (1985); (attempted sexual assault; when victim tried to get up, defendant held her down and struck her); State v. Kish, supra (defendant grabbed victim's wrists and dragged her into bedroom).

The evidence adduced at the trial of this case demonstrated that the defendant had no need to exert force to effect the sexual contact. The complainant had been legally rendered immobile for transport to the hospital and the defendant had only to open her blouse and pants to commit the sexual assault. We are unpersuaded by the state's argument that these actions constituted force. In this case, there was mere touching. Neither violence, nor physical coercion, nor use of superior strength was necessary to assault this complainant sexually. We decline to stretch the ordinary meaning of "use of force" to fit this particular case. We, therefore, hold that the defendant did not use force as contemplated by General Statutes § 53a-65(7)(B), and that the evidence does not support the jury's verdict of guilty of sexual assault in the third degree.

Our holding here is supported by a comparison of sexual assault in the third degree; General Statutes § 53a-72a(a)(1)(A); with sexual assault in the fourth degree. General Statutes § 53a-73a(a)(1)(C) and (a)(2). We agree with the state that these are separate crimes but disagree with the state's assertion that in this factual setting, the defendant can be found guilty of both. While both statutes proscribe nonconsensual sexual conduct, sexual assault in the third degree by use of force contemplates a will overborne by physical coercion, whereas sexual assault in the fourth degree addresses subjection to sexual contact upon a physically helpless person or without the victim's consent under circumstances not necessarily requiring physical force.

Prior to 1975, sexual contact by forcible compulsion and sexual contact with a person unable to consent by reason of being physically helpless were both considered sexual contact in the first degree and designated a class C felony. General Statutes (Rev. to 1975) § 53a-78. Sexual contact with a person without consent was sexual...