State v. Mancinone

• Decision Date: 19 July 1988
• Docket Number: No. 5046,5046
• Citation: 15 Conn.App. 251,545 A.2d 1131
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John MANCINONE.

Page 1131

545 A.2d 1131

15 Conn.App. 251

STATE of Connecticut v. John MANCINONE.

No. 5046.

Appellate Court of Connecticut.

Argued March 2, 1988.

Decided July 19, 1988.

J. Daniel Sagarin, with whom was Thomas E. Farver, Milford, for appellant (defendant)

Patricia A. King, Deputy Asst. State's Atty., and Maureen Keegan, Certified Legal Intern, with whom, on the brief, were John A. Connelly, State's Atty., and Bradford J. Ward, Asst. State's Atty., for appellee (State).

Before BORDEN, EDWARD Y. O'CONNELL and FOTI, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of risk of injury to a minor in violation of General Statutes § 53-21, ¹ and illegal possession of marihuana in violation of General Statutes § 21a-279(c). ² The jury found him not guilty of two counts of sexual assault in the second degree in violation of General Statutes (Rev. to 1983) § 53a-71, ³ and, with respect to these two counts, found him not guilty of the lesser included offenses of sexual assault in the fourth degree in violation of General Statutes § 53a-73a. ⁴ The court imposed concurrent sentences of six years and eight years on each of the convictions of risk of injury to a minor, and one year on the conviction of possession of marihuana, for a total effective sentence of eight years.

The defendant claims that the judgment of conviction must be reversed on the following grounds: (1) the state's failure sufficiently to particularize the dates of the risk of injury charges violated his constitutional right adequately to present a defense; (2) the evidence regarding the risk of injury charges was insufficient; (3) several evidentiary rulings of the trial court were erroneous; (4) the court committed several errors in instructing the jury; and (5) the court committed several errors in imposing sentence. We find no error.

The jury could reasonably have found the following facts. The defendant was a successful businessman, age sixty-seven at the time of the trial in 1986, who lived with Judy Grice and her children in the defendant's house on Whittemore Road in Middlebury. He also had an apartment on Grand Street in Waterbury. The two victims, who were referred to throughout the trial proceedings as Juvenile One (J1) and Juvenile Two (J2), were age sixteen at the time of trial and approximately ages thirteen and fourteen at the time the crimes were committed.

Between August, 1982, and November, 1984, the defendant engaged in the following ongoing course of conduct with the two victims, at his house in Middlebury and apartment in Waterbury: on numerous occasions, the defendant gave the two victims beer, wine and marihuana, and offered them money and marihuana in exchange for sexual activities. On several occasions, the defendant asked them if he could see and touch their breasts and vaginas, and the defendant paid them money to show him their breasts. There was a hot tub in the defendant's house. The defendant was nude in the hot tub with J1 and J2, and permitted J2 and her friend, Andrea Keeley, to use the hot tub in the basement of his house, provided that they were nude. While J2 and Keeley were nude in the hot tub, he tried to grab their breasts, and he gave them marihuana in exchange for permitting him to be nude with them in the hot tub. On numerous other occasions the defendant kissed the victims, and tried to touch their breasts. Furthermore, the defendant There was also evidence, the significance of which we discuss later in this opinion, that on several occasions the defendant had sexual intercourse with the victims, in both his house and his apartment. With respect to the possession of marihuana count, the jury could reasonably have found that on January 4, 1985, the defendant possessed approximately three and three-quarters ounces of marihuana at his house in Middlebury.

gave J1 and J2 the key to his apartment and permitted them to have a party there with their friends, at which alcohol and marihuana were used.

I PARTICULARITY OF THE INFORMATION

The defendant first claims that the state's charging documents were so vague regarding the dates on which the state claimed he violated General Statutes § 53-21 that he could not properly prepare and present a meaningful defense. He also claims that the court erred in refusing to require the state to make the charging documents more specific. We disagree.

After several motions and requests by the defendant, the state filed an amended bill of particulars and statement of essential facts. The first count of the amended bill of particulars and statement of essential facts alleged that the defendant "violated Connecticut General Statutes Section 53-21, risk of injury to children, in that he placed Juvenile # 1, a person under age 16, in a situation where her health was likely to be injured and her morals likely to be impaired by engaging in sexual activity with said juvenile and by providing said juvenile with alcohol and illegal drugs. It is further alleged that these violations occurred at 182 Grand Street, Waterbury, and 106 Whittemore Road, Middlebury, CT, on divers dates between August 1982 and November 1984." The second count was identical to the first count, except that it referred to J2 rather than J1. ⁵

The defendant argues that, because he was charged with having committed the offenses between August, 1982, and November, 1984, he could not effectively defend by establishing defenses of alibi and impossibility, and by establishing that the conduct of the victims, on whose testimony the state's case largely rested, on or about particular dates was inconsistent with their testimony. We conclude, however, that under the circumstances of this case the bill of particulars and statement of essential facts were constitutionally sufficient.

In order to enable the defendant to prepare his defense, the state must inform him, within reasonable time limits, when " 'the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment to the United States constitution nor article first, § 8, of the Connecticut constitution requires that the state choose a particular moment as the time of an offense when the best information available to the state is imprecise....' " State v. Evans, 205 Conn. 528, 536, 534 A.2d 1159 (1987), quoting State v. Stepney, 191 Conn. 233, 242, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984). This is particularly true where there is no indication that the state could with reasonable certainty provide " 'a narrower time frame than that provided in the bill of particulars....' " Id. Although the date of the alleged crime is material to the defense when an alibi defense is raised, "the effectiveness of the alibi claim is a factual question that is best left to the trier for determination after all the evidence has been presented." Id., 205 Conn. at 535, 534 A.2d 1159. Where the In order for a defendant who is convicted on the basis of an imprecise information to prevail on appeal, he must establish "a clear and specific showing of prejudice to the defense...." State v. Hauck, supra, 172 Conn. at 151, 374 A.2d 150; see State v. Laracuente, 205 Conn. 515, 518-21, 534 A.2d 882 (1987). Such a showing amounting to a deprivation of his constitutional right to adequate notice of the charges against him is not made, however, merely by establishing that the "presentation of his ... defense may be more burdensome and difficult." State v. Evans, supra, 205 Conn. at 536, 534 A.2d 1159; State v. Saraceno, supra, 15 Conn.App. 222, 545 A.2d 1116.

                offense is of a continuing nature, it may be impossible to provide specific dates in the charging documents.   State v. Hauck, 172 Conn. 140, 150, 374 A.2d 150 (1976).   Generally in such cases, "as long as the information provides a time frame which has a distinct beginning and an equally clear end, within which the crimes are alleged to have been committed, it is sufficiently definite to satisfy the requirements of the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.   See, e.g., [15 Conn.App. 258] United States v. Roman, 728 F.2d 846, 851 (7th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984) (crimes committed over eleven year period);   United States v. McCown, 711 F.2d 1441, 1450 (9th Cir.1983) (crimes committed over five month period);   People v. Baugh, 145 Ill.App.3d 133, 99 Ill.Dec. 241, 495 N.E.2d 688 (1986) (crimes committed over nine month period)."   State v. Saraceno, 15 Conn.App. 222, 237, 545 A.2d 1116 (1988)
                

The theory of the state's case, as disclosed by the charging documents, was that between August, 1982, and November, 1984, the defendant placed the victims in a situation likely to injure their health and impair their morals, by giving them illicit substances and by engaging in sexual activities with them. Thus, the offenses charged were continuing in nature. Furthermore, it is clear from this record that the state could not supply more specific dates with reasonable certainty, because the best information available to it, namely the statements and testimony of the victims, was imprecise. Finally, although the defendant's defense was made more burdensome and difficult by the imprecision of the charging documents, those "burdens and difficulties ... [were] not of the kind and magnitude to warrant" reversal of the conviction. State v. Evans, supra, 205 Conn. at 536, 534 A.2d 1159. The defendant did not claim that he was never with the victims within the time period and at the places alleged. He testified that he never engaged in the alleged conduct, whatever the dates. In this connection, he had ample opportunity to impeach the credibility of the state's witnesses, both by cross-examination and by introduction of...