State v. Lemoine, 11701

• Decision Date: 07 July 1994
• Docket Number: No. 11701,11701
• Citation: 33 Conn.App. 743,641 A.2d 131
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kenneth LEMOINE, Jr.

Page 131

641 A.2d 131

33 Conn.App. 743

STATE of Connecticut v. Kenneth LEMOINE, Jr.

No. 11701.

Appellate Court of Connecticut.

Argued Jan. 14, 1994.

Decided March 15, 1994.

Certification Denied June 30, 1994.

Certification Granted Limited to the Following Issues July 7, 1994.

Paul T. Edwards, Sp. Public Defender, for appellant (defendant).

Marjorie Allen Dauster, Asst. State's Atty., with whom, on the brief, were Michael Dearington State's Atty., and Maxine Wilensky, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and LANDAU and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1)(B), ¹ risk of injury to a child in violation of General Statutes § 53-21, ² and two counts of assault of a peace officer in violation of General Statutes § 53a-167c(a)(1). ³ On appeal, the defendant claims that the trial court improperly (1) denied his motions for a directed verdict and judgment of acquittal on the count of sexual assault in the third degree, (2) instructed the jury by failing to relate the issues of law to the facts of the case, and (3) instructed the jury on the crime of risk of injury to a child. Because we agree with the defendant's second claim, we reverse the judgment of the trial court. ⁴

The jury could reasonably have found the following facts. On June 20, 1991, the victim, his mother, the defendant, Barbara Tirado and her daughter went to a lake. The victim was eight years old at the time. After staying at the lake, they drove to the home of the defendant's mother, then to the home of his sister and then to Tirado's home located on Maple Street in Meriden. The victim's father later joined the group and the adults all began drinking. The victim fell asleep on the couch in Tirado's home wearing his pants, shirt and underpants. The victim's father was asleep on a chair near the couch and the victim's mother was asleep in another room. The victim awoke to find the defendant placing his hands between the victim's legs on the outside of the victim's pants. The defendant was attempting to pull down the victim's pants. The defendant was behind the victim on the couch and the victim was facing away from the defendant. The defendant told him to be quiet. The victim took off his pants while the defendant continued to touch the outside of the underpants between the legs and then the defendant cut the victim's underpants. The victim was scared and ran to his mother's room and told her what had just occurred.

The victim's mother ran into the living room to wake the victim's father. In the meantime, the defendant, who was wearing only a tee shirt, ran down the stairs and out the backdoor. Tirado caught the defendant outside and asked him "why he did it" and the defendant responded that he was sorry and the drugs made him do it. Tirado brought the defendant back upstairs. The victim's father and the defendant then fought while the victim's mother took off the victim's underpants and dressed him. ⁵ The victim then went downstairs with his parents and got into a van. The victim's father began to drive on Main Street in Meriden to the police station when he observed the defendant driving a truck with Tirado as a passenger on Maple Street. The victim's father blocked the defendant's vehicle and the two vehicles collided. The victim and his mother exited the van and proceeded to the side of the road.

Officers Michael Merrigan, Mark Masse and Grant Treiber of the Meriden police department arrived at the scene in uniform shortly thereafter. Merrigan approached the father and was informed by him about the events that occurred at Tirado's home. Masse and Treiber approached the defendant's vehicle and asked him to exit it. As they attempted to open the door of the defendant's vehicle and take the keys, the defendant hit Treiber in the face and drove the vehicle in reverse. The officers at that point were hanging onto the doors of the vehicle. The truck veered to the right and almost hit a building on Maple Street. Treiber fell off the side of the truck and Masse hit a door attached to the building with sufficient force to break a hole in the door. Masse sustained lacerations to his right hand, right forearm, shoulder and back. Treiber sustained bruises and injured his right hand. Treiber then placed the defendant under arrest.

At the crime scene, Robert Pocobello, a Meriden police detective, seized a pair of scissors and underpants. He discovered the scissors on a coffee table near the couch and the underpants on the couch. Pocobello processed the scissors for fingerprints. The processing revealed the presence of fingerprints that were not clear enough to be identified.

Ted Standish, another Meriden police detective, employed by the department's sexual assault unit, interviewed the victim on June 21, 1991. The victim stated that after arriving at Tirado's home, she told him to sleep on the couch, where the defendant was already sleeping. The victim further told Standish that he awoke when the defendant placed his hands on the victim's "dinky" ⁶ and that the defendant pulled at the victim's pants. The victim also told Standish that the defendant told the victim to take off his pants and keep quiet. The victim then told Standish that the defendant tried to make him take off his underpants and when he refused, the defendant cut the underpants with scissors.

The defendant disputed the facts. He testified on his own behalf that he, the victim, Tirado and the victim's mother arrived at Tirado's home after they had spent the day at the lake. The defendant also testified that he left Tirado's at 11 p.m., just after the victim's father arrived, returned at around 4:30 or 5 a.m., and found Tirado and the victim's father drinking and the victim asleep on the couch. The defendant also stated that he fell asleep on the couch, "opposite the victim" and awoke to find the victim's father with his hand in the pocket of the defendant's pants, which the defendant had on, and thought that the victim's father was attempting to steal money. The defendant then testified that he tried to get up and that the victim's father jumped on him and hit him in the face. The defendant then testified that Tirado offered to drive him to the hospital and that he accepted Tirado's offer. He further testified that as she drove him to the hospital, the victim's father forced their vehicle to a stop on Maple Street. The defendant then testified that he moved into the driver's seat, placed the truck in reverse and police officers tried to grab him, causing the truck to move in reverse.

I

The defendant first asserts that the trial court improperly denied his motions for directed verdict and judgment of acquittal on the count of sexual assault in the third degree. ⁷ The defendant posits that the state failed to present sufficient evidence of the threat of use of force as discussed in State v. Hufford, 205 Conn. 386, 533 A.2d 866 (1987). We disagree.

"The record discloses that the defendant made a motion for judgment of acquittal at the close of the state's case pursuant to Practice Book § 884. The trial court denied this motion. The defendant then proceeded to offer evidence on his own behalf. Under the existing rules, when a defendant elects to put on evidence after a denial of his motion for judgment of acquittal at the end of the state's evidence, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the completion of the state's case. State v. Booker, 28 Conn.App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Kari, 26 Conn.App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992). ⁸ Thus, the defendant's claim with regard to the sufficiency of the evidence at the completion of the state's case is not reviewable. State v. Booker, supra, 41." State v. Wolff, 29 Conn.App. 524, 527-28, 616 A.2d 1143 (1992). The defendant, however, is entitled to a review of the sufficiency of the evidence as presented in the entire case. State v. Booker, supra, 42.

In Hufford, the defendant did not 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." State v. Hufford, supra, 393. Here, the jury could have reasonably found from the evidence that the victim removed his pants after the defendant physically attempted to remove them forcibly and then the defendant cut the victim's underwear. "The force used or threatened to be used in the course of committing sexual assault in the ... third [degree] is that necessary to compel the victim to engage in sexual intercourse or to submit to sexual contact. State v. Rogers, 198 Conn. 53, 62, 502 A.2d 360 (1985)." State v. Jackson, 30 Conn.App. 281, 289, 620 A.2d 168, cert. denied, 225 Conn. 916, 623 A.2d 1026 (1993). We conclude that the defendant's claim that the evidence was insufficient is without merit. We are satisfied that the evidence was sufficient to warrant the jury's returning a verdict of guilty. If the case had been submitted to the jury under proper instructions, the verdict of guilty of sexual assault in the third degree involving the victim would have been proper. See State v. Wolff, supra, 529.

II

The defendant next claims that the trial court improperly instructed the jury by failing to relate the issues of law to the facts of the case. The defendant concedes that he failed to object to the jury charge. See Practice Book § 852. ⁹ The defendant nevertheless claims that he is entitled to review under the doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree.

Certain additional facts are necessary for a proper resolution of this appeal. The defendant...