State v. Joseph V.
| Decision Date | 31 March 2020 |
| Docket Number | AC 42295 |
| Citation | 196 Conn.App. 712,230 A.3d 644 |
| Parties | STATE of Connecticut v. JOSEPH V. |
| Court | Connecticut Court of Appeals |
Megan L. Wade, assigned counsel, with whom were James P. Sexton, assigned counsel, and, on the brief, Matthew C. Eagen, assigned counsel, and Emily L. Graner Sexton, assigned counsel, for the appellant (defendant).
Jennifer F. Miller, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Amy L. Sedensky and Don E. Therkildsen, Jr., senior assistant state's attorneys, for the appellee (state).
Keller, Bright and Flynn, Js.
The defendant, Joseph V., appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), risk of injury to a child in violation of General Statutes § 53-21(a)(2), and conspiracy to commit risk of injury to a child in violation of General Statutes §§ 53a-48(a) and 53-21(a)(2).1 The defendant claims that the trial court improperly (1) sanctioned a nonunanimous verdict and (2) denied his motion to preclude evidence that he was engaged in a sexual relationship with his coconspirator, T. We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The male victim has a half brother, T, and a first cousin, the defendant. T and the defendant, who are first cousins, were born two days apart. The victim is more than eight and one-half years younger than T and the defendant.
When the victim was four or five years of age, T began frequently abusing the victim in a sexual manner.2 This included T's taking advantage of moments alone with the victim to engage in a variety of sexual acts that included rubbing his penis between the victim's legs, causing the victim to touch his penis, performing oral sex on the victim, and causing the victim to perform oral sex on him. Later, T anally penetrated the victim with his penis.
Prior to 2006, the victim lived with his mother, father, and T In 2006, when the victim was approximately seven years of age, the victim's mother and father ended their relationship and decided to live separately. The victim's father moved to a new residence. T, at that time a sophomore in high school, lived at the new residence with his father. T had his own bedroom at the residence, as did his father. The victim, who continued to reside with his mother, frequently visited his father and stayed at the new residence for overnight visits. The victim, however, did not have his own bedroom at the new residence but slept on a sofa or in his father's bedroom. The defendant lived at the new residence for a period of time, but he did not have his own bedroom and slept on a downstairs sofa. T's abuse of the victim continued at the new residence.
Both prior to and following the time that the victim's father and T moved to the new residence, the defendant had a close relationship with T. The defendant and T spent a lot of time together while engaging in activities such as playing baseball, basketball, and video games. From a young age, the defendant and T had an ongoing sexual relationship, as well. After the victim's father and T moved to the new residence, when the defendant was fifteen years of age, the defendant began to sexually assault the victim. Frequent sexual abuse of the victim by the defendant, which often involved simultaneous sexual abuse of the victim by T, occurred until the victim was ten years of age.3
The first time that the defendant sexually abused the victim occurred in T's bedroom after the defendant, T, and the victim had been playing video games. After the gaming system was turned off, the victim was on T's bed. The defendant and T exchanged a knowing glance just before the defendant put his hand on the victim's hand and made the victim stroke
his penis.4 Thereafter, T and the defendant took turns rubbing their penises between the victim's legs, near his buttocks. At one point during this incident, T attempted to anally penetrate the victim with his penis while the defendant made the victim perform oral sex on him.
Another incident involving the defendant occurred when he and the victim were watching television in the bedroom of the victim's father. While the defendant and the victim were lying in bed, the defendant took the victim's hand and made the victim stroke his penis. Then, the defendant made the victim, who was fully clothed, perform oral sex on him. When the defendant heard someone approaching the bedroom, he quickly closed his pants to avoid detection by another person.
The defendant sexually abused the victim during another incident that occurred in T's presence, although T did not participate.5 This incident occurred at night, after the victim, the defendant, and T had been watching television in the living room, which was downstairs at the residence of the victim's father. The defendant partially undressed himself and partially undressed the victim before making the victim perform oral sex on him. The defendant also rubbed his penis between the victim's legs. The defendant quickly stopped his sexual activity when he heard the victim's father, who was on the second floor of the residence, walking toward the staircase that led to the living room.
In another incident involving the defendant, which occurred when the victim was ten years of age, the defendant and the victim were alone together at the residence of the victim's father after other family members had left to purchase food. The defendant, who was on the couch in the living room with the victim, partially removed his pants and the victim's pants and anally penetrated the victim with his penis. Thereafter, the defendant made the victim perform oral sex on him. When the defendant completed the assault, he closed his pants and instructed the victim not to tell the victim's father what had occurred.
Between the ages of ten and thirteen, the victim came to recognize that the sexual contact had been wrong, and he was left with many unanswered questions about what had occurred between him, T, and the defendant. The victim, however, did not yet feel comfortable telling anyone close to him about what had occurred. He first revealed the sexual abuse to a third party in 2013, when he was thirteen years of age. The victim visited a website that was operated by The Trevor Project, which, as testified to by its vice president of programs, is a California based "accredited, national suicide prevention and crisis intervention organization for lesbian, gay, bisexual, transgender and questioning youth."6 The victim sent a digital correspondence to the organization in which, among other things, he revealed that he had been sexually abused from a young age by his brother and his cousin, that he grappled with emotional issues, and that he sometimes thought about harming himself and about suicide. After he did not receive an immediate response, the victim visited the website once again and used an instant messaging feature to speak with a counselor. During the instant messaging conversation between the victim and the counselor, the victim reiterated that his brother and cousin had abused him sexually until he was ten years of age, stated that he previously had suicidal thoughts, and that he still had questions about what had occurred. At one point during the conversation, he questioned whether it was "[his] fault for letting it happen for all those years." The victim's goal in reaching out to the organization was to share his experiences with a third party who might be able to help him feel better, but he was afraid of the consequences of involving anyone who had the ability to take action against his abusers.
Unbeknownst to the victim, the counselor that he spoke with at The Trevor Project was required by law to report allegations of child sexual abuse to the California Department of Children and Family Services (department) in Los Angeles. After the counselor concluded his conversation with the victim, he reported the abuse to the department. The department contacted the police department for the Connecticut municipality in which the victim resided and provided information that led the police to the residence of the victim and his mother. Thus, within hours of the victim's instant messaging conversation with a counselor, police officers were at his residence to investigate the representations of sexual abuse, at which time the victim admitted that he had been sexually abused by the defendant and T. The arrests of the defendant and T followed.
First, the defendant claims that the court improperly sanctioned a nonunanimous jury verdict in violation of his constitutional right to a unanimous jury verdict.7 We disagree.
The following additional facts are relevant to this claim. On November 2, 2015, during a prior trial related to the events underlying the charges of which the defendant stands convicted,8 the state filed a substitute information, which consisted of four counts, against the defendant.9 On December 15, 2015, following a mistrial in the prior action and before the commencement of the present trial, the defendant filed a motion for a bill of particulars, as provided for in Practice Book § 41-20.10 Essentially, the motion sought to compel the state to provide additional information with respect to each of the charges.11 On September 2, 2016, before the court heard argument on the defendant's motion, the state filed a substitute information that was the operative information at the time of the present trial. This information consisted of three counts.12
On September 6, 2016, the defendant filed a memorandum of law in support of his motion for a bill of particulars. On September 14, 2016, the court heard argument on the motion. Consistent with the arguments set forth in the memorandum of law, defense counsel, relying ...
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