State v. John O.

• Decision Date: 31 July 2012
• Docket Number: No. 32782.,32782.
• Citation: State v. John O., 137 Conn.App. 152, 47 A.3d 905 (Conn. App. 2012)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. JOHN O.

137 Conn.App. 152

47 A.3d 905

STATE of Connecticut

v.JOHN O.^*

No. 32782.

Appellate Court of Connecticut.

Argued April 11, 2012.

Decided July 31, 2012.

Alan Jay Black, for the appellant (defendant).

Rocco A. Chiarenza, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Michael W. Riley, senior assistant state's attorney, for the appellee (state).

BEACH, SHELDON and PETERS, Js.

SHELDON, J.

The defendant, John O., appeals from the judgment of conviction, rendered following a jury trial, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(1)(A)¹ and one count of risk of injury to a child in violation of General Statutes § 53–21(a)(2).² On appeal, the defendant claims that: (1) the trial court erred in denying his motion for a judgment of acquittal on both counts of the information; (2) the trial court erred in determining, after an in camera review, that certain records of the department of children and families (department) did not contain exculpatory information; and (3) § 53–21(a)(2) is unconstitutionally vague, as applied to this case, and thus violates the defendant's due process rights under the fifth and fourteenth amendments to the United States constitution.³ We disagree, and thus affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim's mother had a platonic relationship for many years. The defendant, a taxicab driver, would frequently drive the victim's mother to the local methadone clinic for her appointments. While the victim's mother attended her appointments, the defendant would wait in the car with her two children—a three year old daughter, the victim, and a five year old son.

On October 11, 2007, the defendant transported the victim's mother and her two children to the methadone clinic. Before exiting the taxicab, the victim's mother informed the defendant that her appointmentwould be longer than usual. The victim's mother then exited the taxicab and walked into the clinic. Mark Smith, a methadone patient, also had an appointment at the clinic. Earlier that morning, Smith had gone to another building located on the same premises as the clinic for a physical examination. After his examination, Smith walked to his vehicle, which was parked next to the defendant's taxicab, to drop off a newspaper. As Smith walked past the taxicab, he observed the victim in the backseat. He then saw the defendant recline his seat and reach into the backseat where the victim was located. Smith stopped walking and observed the defendant “reach his hand underneath the [victim's] butt and lift her up a little....” He also observed the defendant “physically, with his fingers, two fingers of the middle—the two middle fingers of his right hand manipulating or massaging the crotch ... of the [victim] that was in the car.” He “could see both of [the defendant's] middle fingers clearly massaging ... underneath the girl's behind, and there w [ere] two fingers up in between her thighs,” in her vaginal area. Smith watched the defendant for approximately forty-five seconds to verify that he was not misperceiving the defendant's actions. With no doubt as to what he had been witnessing, Smith walked directly to the clinic to inform a counselor about the defendant's conduct.

Upon entering the clinic, Smith encountered Chelsea Tuttle, a counselor. When Smith informed her about the defendant's conduct, Tuttle walked out to the parking lot to investigate. As she stood and watched the defendant, she saw that he had his hand between the victim's legs and “[h]e was moving his hand, his whole hand, up and down her bottom.” Tuttle then walked around the side of the taxicab and saw the defendant kiss the victim on her mouth with his mouth open. At this, Tuttle knocked on the taxicab window and asked the defendant why he was parked there and who he was waiting for. The defendant informed Tuttle that he was waiting for the victim's mother and that the two children in his taxicab were hers. Tuttle returned to the clinic and informed the victim's mother that she needed to remove her children from the defendant's taxicab.

Thereafter, the defendant was arrested and charged by an information with the crimes of sexual assault in the fourth degree in violation of § 53a–73a (a)(1)(A), and risk of injury to a child in violation of § 53–21(a)(2). Following a jury trial,⁴ the defendant was found guilty of both counts. The trial court subsequently imposed a total effective sentence of twenty-five years incarceration, execution suspended after fifteen years, followed by thirty-five years of probation. This appeal followed.

I

The defendant first claims that there was insufficient evidence to convict him of sexual assault in the fourth degree or risk of injury to a child. We disagree.

The standard of review we apply to a claim of insufficient evidence is well established. “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] reasonablycould 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 that it deems to be reasonable and logical....

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329–30, 929 A.2d 278 (2007).

A

The defendant argues that he is entitled to an acquittal on the charge of sexual assault in the fourth degree. A person is guilty of sexual assault in the fourth degree when he “intentionally subjects another person to sexual contact who is ... under thirteen years of age and the actor is more than two years older than such other person.” General Statutes § 53a–73a (a)(1)(A). “Sexual contact” is defined in General Statutes § 53a–65 (3) as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.” “Intimate parts” is defined in § 53a–65 (8) as “the genital area ... groin, anus ... inner thighs, buttocks or breasts.” Sexual contact with a victim's intimate parts can be indirect and through clothing as long as it occurs for the purpose of the actor's own sexual gratification or for the purpose of degrading or humiliating the victim. State v. Eric T., 8 Conn.App. 607, 613, 513 A.2d 1273 (1986).

The defendant here argues that the state's evidence was insufficient to convict him of sexual assault in the fourth degree because the state failed to establish beyond a reasonable doubt that he had contact with the victim for the purpose of his own sexual gratification. This court has concluded, however, that a defendant's intent to obtain sexual gratification from his contact with a victim can be based on “the fact that the defendant chose to touch [the victim's] vagina....” State v. Montoya, 110 Conn.App. 97, 103, 954 A.2d 193, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008); see also State v. Eric T., supra, 8 Conn.App. at 614, 513 A.2d 1273 (“[t]he choice of where the defendant touched his victim was unquestionably sexual in nature, and is evidence of his intent to commit a sexually gratifying act”).

Reviewing the facts in the light most favorable to sustaining the verdict, it is clear that the state met its burden of establishing that the defendant sexually assaulted the victim. Smith testified that he saw the defendant “reach his hand underneath the girl's butt and lift her up a little....” He also testified that he observed the defendant “physically, with his fingers, two fingers of the middle—the two middle fingers of his right hand manipulating or massaging the crotch ... of the young lady or the young girl that was in the car.” Smith...