State v. Kish

Citation443 A.2d 1274,186 Conn. 757
CourtSupreme Court of Connecticut
Decision Date27 April 1982
PartiesSTATE of Connecticut v. Zoltan KISH.

Richard T. Meehan, Jr., Bridgeport, with whom, on the brief, were James J. Gentile and Mark T. Altieri, Bridgeport, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (state).


ARTHUR H. HEALEY, Associate Justice.

After a trial to the jury, the defendant was found guilty of sexual assault in the first degree in violation of General Statutes § 53a-70(a). 1 On appeal, he claims that the trial court erred: (1) in denying his motion for judgment of acquittal claiming that the state failed to prove that he committed sexual assault in the first degree; (2) in admitting certain testimony offered under the "constancy of accusation" exception to the hearsay rule; (3) in failing to instruct the jury on the limited purpose of such testimony as to all four witnesses through whom such testimony was offered; (4) in its jury instruction concerning the defendant's interest in the outcome of the trial; and (5) in failing to instruct the jury that they might draw an adverse inference from the state's failure to call the victim's husband as a witness.

From the evidence presented at the trial, the jury could reasonably have found the following: 2 On April 14, 1980, the victim and her husband resided in Monroe. At about 10 p. m. on that date, the victim received a telephone call at her home in response to an advertisement placed by her in the Bargain News offering a baby carriage for sale. The caller, who identified himself as Zoltan, said he would be coming from Fairfield and asked her if it would be all right if he came to examine the carriage. After she spoke to her husband, who indicated that it was all right, she told him that he could come and she gave him directions to her house. The victim waited for the defendant while her husband went to bed. He arrived at 11:30 p. m. saying that he had trouble finding her house. She showed him the carriage and he told her that he was buying the carriage for a friend of his girlfriend.

He asked her for a drink of water and then asked to sit in the living room so he could rest his eyes. After informing her that he wanted the carriage but that he did not have his wallet, he said he would like to come back the next morning to buy the carriage. This was agreeable to her but she told him that she had an appointment at 10 a. m., that she would be home about noon and that he was to call first. After the defendant left, she spoke to her husband telling him that the defendant was very strange and gave her the "creeps."

The next morning the victim arose at 6 a. m. and, after her husband left for work at 7 a. m. and her older child had gone to school, she called a neighbor, Sandy Baccash, at about 8 a. m. She told Baccash that a man was coming to pick up the baby carriage and for Baccash to come to her house around noon to be with her because she thought the man was weird. After putting her baby daughter in her crib in the master bedroom for a nap, she took a shower.

At approximately 10 a. m., the victim was setting her hair in the master bedroom, where the baby was asleep, when the doorbell rang. Attired in a maternity blouse and maternity slacks, she looked out a bedroom window and saw the defendant's car. She went to the kitchen, which is across from the front hall and front door, where the telephone is located, to call Baccash. As she was about to dial, she saw the defendant looking through the window in the front door. She put the phone down and opened the front door admitting the defendant. After telling him that he was not expected until noon, she began to disassemble the carriage when he told her, "Never mind. Don't bother. Make me a cup of coffee." He followed her into the kitchen as she went to make the coffee. She was nervous and started shaking because she "knew he was going to pull something on me." She made the coffee and she knew "right then and there (she) had to make that phone call before he tried something." She picked up the phone, walked into the parlor with it and dialed Baccash's number. After asking Baccash to come over right away, she went back into the kitchen and hung up the phone.

Upon her return to the kitchen the defendant got up, approached the victim and put his hand on her left shoulder. She told him "to take his hand off (her)." He then grabbed her wrist and "just forced (her) into the bedroom. He had a grip on (her)." 3 At that time she said, "Please don't hurt me," and he said, "I won't hurt you." In the bedroom he made her lie down on the bed and told her to take her pants off. At that time the baby started to wake up and began crying and she asked him not to hurt the baby. He said, "I won't hurt the baby, just take your pants off." She then took off her pants. She was on her back and he was standing next to the bed. He then removed her panties. On this day the victim was in the middle of her menstrual cycle and the sanitary pad she had on did not come off when her panties were removed but remained on her body. He removed the pad from her vagina. He lifted her blouse and bra, put his hand on her left breast and his mouth on her nipple.

After doing this, which lasted only a few seconds, he put his hand down on her vagina and "his mouth on the lips of (her) vagina." She never actually saw him put his lips on her vagina, but she "felt them" and "saw his head there." Before he did this he asked her to open her legs; she said she would not and she froze. He then told her that if she didn't open up her legs, he would hurt her.

The doorbell rang and the defendant told her to get dressed and quiet the baby. He then walked out of the bedroom. She checked the baby, put her slacks on and then got her husband's .45 caliber handgun which was between the mattress and the box spring. When she came out of the bedroom, she saw Baccash and the defendant in the hallway. 4 She cocked the gun and yelled to Baccash, "Sandy, he tried to rape me. Call the cops. Hurry up." 5 The defendant saw the gun, went to the door and left the house. The first policeman, Officer Anthony J. Pucci, arrived at her residence approximately five to seven minutes after he got called to go there. 6 A Monroe detective, one Bernard Halapin came shortly thereafter. 7 Later the same day, the victim saw her family physician, Dr. John Gulash, and he testified at the trial.

In claiming that the state failed to prove the offense of sexual assault in the first degree beyond a reasonable doubt, the defendant argues that the state failed to prove two fundamental elements of the charge: (1) the fact that sexual intercourse had taken place and (2) that the defendant had compelled the victim to engage in the act by the use of force. 8 The defendant's plea of not guilty put in issue every essential element of the crime charged thus requiring the state to prove every such element beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978).

This claim first requires us to determine whether "sexual intercourse," as charged, in fact could be found to have been proven. General Statutes § 53a-65(2) defines "sexual intercourse" as meaning "vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen.... Its meaning is limited to persons not married to each other." The state, having particularized its accusation to cunnilingus by the use of force was limited to proving that the defendant committed the offense charged in substantially the manner described. See State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976). Our penal code does not define "cunnilingus." It is commonly defined as the "stimulation of the vulva or clitoris with the lips or tongue." Webster, Third New International Dictionary. "Vulva" means "the external parts of the female genital organs." Id. In its charge to the jury, the court instructed, without exception by defense counsel, as follows: "Cunnilingus is sexual stimulation of the clitoris or vulva by the lips or tongue. The vulva consists of the external parts of the sex organs." Had the statute contained a specific definition of the term, the court would have been bound to accept it. State v. Mason, supra; International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974); First Federal Savings & Loan Assn. v. Connelly, 142 Conn. 483, 115 A.2d 455, appeal dismissed, 350 U.S. 927, 76 S.Ct. 305, 100 L.Ed. 811 (1955). Otherwise, the words of the statute "are to be given their commonly approved meaning, unless a contrary intent is clearly expressed." Holmquist v. Manson, 168 Conn. 389, 393, 362 A.2d 971 (1975); Antrum v. State, --- Conn. ---, ---, 440 A.2d 839 (43 Conn.L.J., No. 4, pp. 20, 21) (1981); General Statutes § 1-1. The court properly defined the term "cunnilingus."

In arguing that the crime charged was not proven, the defendant argues that "the trial testimony is void of any element demonstrating penetration." This claim is without merit. We conclude that penetration is not required under our statutory scheme for the commission of cunnilingus. The rule of statutory construction is that "(a) statute should not be construed as altering the common law rule, farther than the words of the statute import, and should not be construed as making any innovation upon the common law which the statute does not fairly express. Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1950); see Shaw v. Railroad Co., ...

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