State v. Martin

• Decision Date: 04 January 1983
• Citation: 189 Conn. 1,454 A.2d 256
• Parties: STATE of Connecticut v. John A. MARTIN.
• Court: Connecticut Supreme Court

Page 256

454 A.2d 256

189 Conn. 1

STATE of Connecticut v. John A. MARTIN.

Supreme Court of Connecticut.

Argued Oct. 25, 1982.

Decided Jan. 4, 1983.

Marcia B. Smith, Deputy Asst. State's Atty., for appellant (state).

Louis S. Avitabile, Sp. Public Defender, for appellee (defendant).

Before PETERS, ARTHUR H. HEALEY, PARSKEY, SHEA and GRILLO, JJ.

SHEA, Associate Justice.

The defendant was charged with assault in the third degree; General Statutes § 53a-61; risk of injury to a minor; General Statutes § 53-21; and interference with a police officer; General Statutes § 53a-167a; as the result of an incident with a neighbor's child. The jury returned a verdict of not guilty on the assault charge, but found the defendant guilty on the other two counts. The trial court imposed sentence on the count charging interference with a police officer but set aside the guilty verdict on the risk of injury charge and rendered a judgment of acquittal on that charge. The state has appealed from that judgment. ¹ The state claims the trial court erred in setting aside the verdict, whether the basis for the court's decision was that the evidence was insufficient to support the verdict or that an acquittal on the assault charge was inconsistent with a guilty verdict on the risk of injury charge. The defendant argues that the trial court's decision to set aside the verdict should be upheld because the evidence was insufficient to support a guilty verdict. In the alternative, the defendant claims that the complaining witness, who was six years old at the time of trial, lacked competency to testify, and that the trial court erred in admitting his testimony, without which there would be insufficient evidence to convict the defendant of risk of injury to a minor. The defendant also claims that the guilty verdict should not be reinstated, because the trial court improperly instructed the jury on the general intent element of the crime of risk of injury. He claims also that a new trial is prohibited because it would subject him to double jeopardy.

The defendant, John Allen Martin, lived with Louise Evon, who had an arrangement to care during working hours for the child of a neighbor who lived in another apartment in the building. Under the arrangement Louise supervised the child, Jonathan, in her own apartment from the time he returned home from school until his mother returned home from work late in the evening. On the afternoon in question, the defendant and other adult relatives of Louise were in the apartment when a squabble broke out between Jonathan and another child. Although the exact sequence of events is unclear, a brief scuffle then ensued in which the defendant allegedly pushed Jonathan into a wall and then to the floor. Jonathan's mother had not yet left for work and, upon hearing noise of a disturbance, went to the defendant's apartment and retrieved her son. The child had sustained a bloody nose, a split lip, a lump on his head, facial bruises, and red marks on his arm. A later hospital examination revealed welts and scratches on the child's chest and back.

The trial court set aside the verdict on the risk of injury count because it viewed this conclusion of guilt as inconsistent with the jury's finding of not guilty on the charge of assault in the third degree. Its ruling was also based upon the insufficiency of the evidence to support the guilty finding.

"Consistency in the verdict is not necessary." Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). Our cases are in accord with this principle which has been accepted by most jurisdictions. State v. Rosado, 178 Conn. 704, 708-709, 425 A.2d 108 (1979); State v. Manning, 162 Conn. 112, 122, 291 A.2d 750 (1971); see annot., 18 A.L.R.3d 259, 16 A.L.R.3d 866. It continues to be reaffirmed by the United States Supreme Court. Hamling v. United States, 418 U.S. 87, 101, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590 (1974); United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48 (1943), reh. denied, 320 U.S. 815, 64 S.Ct. 367, 88 L.Ed. 492.

In State v. Rosado, supra, we recognized the inconsistency between a guilty verdict upon a count of sale of a narcotic substance, where the information alleged that the defendant had personally handed the narcotic to the informant, and a verdict of not guilty on a count of possessing the narcotic based upon the same incident. We concluded that the many possible explanations for the acquittal on one charge did not necessarily indicate that the jury had acted improperly in convicting the defendant on the other. Id., 178 Conn. 709, 425 A.2d 108.

The trial court erred to the extent that it relied upon inconsistency as a ground for setting aside the verdict of guilty on the risk of injury charge. ²

The trial court also erred in concluding that there was insufficient evidence to support the verdict. The crime of risk of injury in this case required proof beyond a reasonable doubt of the following elements: (1) that the victim was less than sixteen years old; (2) that the defendant had perpetrated an act upon the victim; (3) that this act was likely to be injurious to his health; and (4) that the defendant had a general criminal intent to perform such act. See General Statutes § 53-21; State v. Pickering, 180 Conn. 54, 64, 428 A.2d 322 (1980). In reviewing the sufficiency of the evidence supporting a jury verdict, this court must construe that evidence in the most favorable manner reasonably possible to support the jury verdict. Josephson v. Meyers, 180 Conn. 302, 313, 429 A.2d 877 (1980); State v. Avcollie, 178 Conn. 450, 461, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 667, 62 L.Ed.2d 645 (1980). State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978).

From the evidence presented the jury could have reasonably found beyond a reasonable doubt the following facts: The child, Jonathan, was five years old when the incident occurred. On the day in question Jonathan and the defendant were both in the apartment of Louise Evon. The defendant had recently returned from picking up a paycheck from a job which he had recently lost. Jonathan had been squabbling with another child and was crying. The defendant, believing Jonathan was misbehaving, grabbed the child by the arm and pushed him face first into the kitchen wall. Then the defendant threw the child down onto the floor in the adjoining room. Louise attempted to stop the defendant. As the result of these actions the child sustained superficial injuries to his face, head and arm. Shortly after the incident the defendant gave two conflicting descriptions of the incident to the investigating police officer, one admitting he had thrown the child and the other blaming Louise for the child's injuries.

Testimony controverting this version of the incident was provided by the defendant, Louise Evon and her adult relatives present in the apartment at the time. The resolution of conflicting testimony, however, "is properly within the province of the jury who determine the credibility of the witnesses and the weight to be accorded to their testimony." Kubeck v. Foremost Foods Co., 179 Conn. 486, 487, 427 A.2d 391 (1980); see State v. Spates, 176 Conn. 227, 238, 405 A.2d 656 (1978); DeLuca v. C.W. Blakeslee & Sons, Inc., 174 Conn. 535, 547, 391 A.2d 170 (1978); Dulski v. Appel, 172 Conn. 187, 192, 374 A.2d 177 (1976).

We find that as a matter of law the jury had a reasonable basis for concluding that the defendant was guilty of risk of injury. The court set aside the verdict erroneously.

As an alternative ground for sustaining the judgment of acquittal for insufficiency of the evidence, the defendant argues that the testimony of the child-complainant, Jonathan, should be stricken as incompetent. The defendant maintains that although the trial court has wide discretion in competency determinations, the court failed to follow State v. Rodriguez, 180 Conn. 382, 429 A.2d 919 (1980), which requires a court to inquire whether a proposed witness possesses an "ability to recollect and narrate intelligently." Id., 180 Conn. 389, 429 A.2d 919; State v. Siberon, 166 Conn. 455, 457, 352 A.2d 285 (1974); and an "intelligent comprehension of the facts sought to be developed." State v. Rodriguez, supra, 389, 429 A.2d 919; State v. Segerberg, 131 Conn. 546, 548, 41 A.2d 101 (1945). After reviewing the transcripts of the preliminary hearing and the trial testimony of Jonathan, we do not find that the court abused its discretion in admitting the child's testimony. See State v. Rodriguez, supra, 180 Conn. 389, 429 A.2d 919. During the competency hearing the trial court did not permit either counsel to elicit a complete narrative of the incident from the child, ruling that the child had sufficiently demonstrated his intelligent recollection of the incident by describing the persons present, the individual who hit him and some of the surrounding circumstances. The child's trial testimony demonstrated an ability to narrate the crucial elements of the incident consistently and intelligently, although his memory of the actions of persons other than the defendant during the incident and of events immediately following is somewhat vague and limited. Such shortcomings, however, are not unusual in the testimony of victims of a traumatic experience and are properly considered as going to the weight of the testimony rather than its admissibility.

The defendant has advanced an additional reason for affirming the action of the trial court in setting aside the verdict on the risk of injury count. He claims that the trial court erred in failing to instruct the jury properly on the element of the general criminal intent required for a conviction. The trial court rejected this ground when it was first urged by the defendant in support of his motion to set aside.

The defendant testified, in effect, that if he had caused any injury to the complainant it was...