State v. Jimenez

• Decision Date: 17 December 2002
• Docket Number: (AC 23065)
• Citation: 74 Conn. App. 195,810 A.2d 848
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOSE JIMENEZ.

74 Conn. App. 195

810 A.2d 848

STATE OF CONNECTICUT v. JOSE JIMENEZ.

(AC 23065)

Appellate Court of Connecticut.

Argued October 15, 2002.

Officially released December 17, 2002.

Lavery, C. J., and West and Dupont, Js.

Carlos E. Candal, special public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Michael Dearington, state's attorney, and, on the brief, Michael A. Pepper, senior assistant state's attorney, for the appellee (state).

Opinion

DUPONT, J.

This criminal appeal concerns the judgments of conviction rendered against the defendant pursuant to two separate sets of charges that were consolidated for trial before a jury.¹ The first set of charges concerns allegations of sexual assault, kidnapping and risk of injury to a child (referred to herein as the assault charges); the second set concerns charges of tampering with a witness as an accessory and hindering prosecution. On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal, due to insufficient evidence, on the charges of accessory to tampering with a witness and hindering prosecution, and (2) charged the jury that it could consider the tampering and hindering prosecution charges as consciousness of guilt evidence as to the first set of charges. We affirm the judgments of conviction as to all charges.

The jury reasonably could have found the following facts.² In 1998, prior to the events giving rise to the assault charges, the defendant had a brief romantic relationship with the victim's mother, of which the victim was aware. The victim's mother terminated the relationship when she discovered that the defendant was married. In June, 1998, when the victim was eleven years old, the defendant called for the victim at her school. He told the victim that her mother had sent him. The victim got into the backseat of the defendant's motor vehicle. Instead of taking the victim home, the defendant drove to a deserted location and sexually assaulted the victim in the backseat of his vehicle. After forcing her to have sexual intercourse with him, the defendant warned the victim not to tell anyone what had happened or she and her mother would be in trouble. The victim previously had witnessed the defendant physically and verbally threaten to harm her mother. The defendant told the victim that he was going to take her to the home of one of her mother's friends because he claimed that the victim's mother was not at home.

Prior to meeting the victim at her school, the defendant had placed a telephone call to a friend of the victim's mother. He explained that the victim's mother was not at home and he wanted to bring the victim to the friend's home after school. The friend agreed to care for the victim until her mother returned from work. The defendant took the victim to the friend's home after his assault of the victim. Before the child got out of his vehicle, the defendant gave her $7. The victim did not tell anyone what the defendant had done to her until several months later. In September, 1998, the victim lived with her aunt temporarily. When the time approached for the victim to return to her mother's home, the victim asked her aunt to permit her to stay. The aunt questioned the victim, who revealed that she was fearful that her mother would resume a relationship with the defendant. She told her aunt that she was afraid of the defendant and why. When the victim returned to her home, the victim and aunt told the victim's mother of the defendant's assault. The victim's mother took the victim to the New Haven police department to report the incident.

On February 3, 1999, the defendant was due in court to respond to charges alleged in the assault information. On that date, while the victim was waiting to go into school, a man she knew as Cubano³ approached her. The victim recognized Cubano as the man who, in the past, had accompanied the defendant when he came to her home while the defendant was involved with the victim's mother. The mother of the victim described Cubano as the defendant's right-hand man, and the victim described Cubano as "like a brother" to the defendant. Cubano told the victim that if she said something when she went to court, he would kill her and her mother. He also gave her $25. During the school day, the victim was too afraid to tell anyone about the encounter; but when she got home, she reported the incident to her mother. The victim's mother contacted the police.

Robert Williams, a New Haven police officer, responded to the complaint by going to the victim's home. The victim explained her encounter with Cubano and described his clothing and appearance to Williams. The victim's mother suggested that Cubano could be found at the defendant's apartment. Williams then went to the address provided by the victim's mother to look for a male known to the victim and to her mother as Cubano. Williams knocked on the door of the defendant's apartment. The defendant opened the door and invited Williams inside. When he entered, Williams observed two men watching television. One of the men matched the description the victim had given of Cubano, including the clothes he was wearing. Williams asked the defendant if Cubano was present. The defendant said no and that he had never heard of Cubano. The defendant also told Williams that he had been in court that day and everything was settled. Until that moment, Williams had not known of any court appearance concerning the defendant. Williams inquired about the other two men in the apartment; the defendant replied that they were his friends who came to visit regularly. Williams pointed to the man who fit the victim's description of Cubano and asked if he was Cubano. The defendant shook his head no and gestured to the two men not to speak to Williams.

Williams had conducted his interview in English, but at no time did the defendant indicate that he did not understand Williams. Another New Haven police officer, who is bilingual, joined Williams and repeated in Spanish what Williams had asked. Again, the defendant indicated that Cubano was not in the apartment. Because one of the two men fit the description of Cubano and the defendant denied that either of the men was Cubano, the officers obtained permission to bring the victim and her mother to the apartment for an identification. When the victim and her mother arrived, the officers escorted the three men, one by one, outside. The victim identified one of the men as Cubano, the man who had threatened her that day. The victim's mother also identified Cubano. The victim and her mother also identified the defendant. Cubano was charged with tampering with a witness and pleaded guilty to the charge. At the defendant's trial, the defendant and the state stipulated that Cubano had pleaded guilty, and the stipulation was read to the jury.

I

The defendant's first set of claims concerns the court's denying his motion for a judgment of acquittal on the charges of tampering with a witness as an accessory in violation of General Statutes §§ 53a-8 (a)⁴ and 53a-151,⁵ and hindering prosecution in the second degree in violation of General Statutes § 53a-167.⁶ The defendant claims that the court improperly denied his motion because there was insufficient evidence to convict him of those crimes. We affirm the conviction of the defendant as to both charges, holding that the court correctly denied his motion for a judgment of acquittal.

The following facts are relevant to the defendant's claim. At the conclusion of the state's case-in-chief, the defendant orally moved for a judgment of acquittal on all counts against him. With respect to the charge of tampering with a witness on the theory of accessory liability, the defendant argued that the state had failed to produce any evidence that the defendant solicited, requested, commanded, importuned or intentionally aided Cubano in threatening the victim. As to the charge of hindering prosecution, the defendant claimed that there was insufficient evidence that he had rendered criminal assistance to Cubano. The court denied the defendant's motion.⁷

"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....

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... 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....

"Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citations omitted; internal quotation marks omitted.) State v. Meehan, 260 Conn. 372,...