State v. Martin

• Decision Date: 25 May 1982
• Citation: 445 A.2d 585,187 Conn. 216
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jerome MARTIN.

Page 585

445 A.2d 585

187 Conn. 216

STATE of Connecticut v. Jerome MARTIN.

Supreme Court of Connecticut.

Argued Jan. 7, 1982.

Decided May 25, 1982.

F. Mac Buckley, Hartford, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Herbert G. Appleton, Asst. State's Atty., for appellee (State).

Before SPEZIALE, C. J., and PETERS, HEALEY, PARSKEY and WRIGHT, JJ. WRIGHT, Associate Justice.

The defendant in this appeal was charged with the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70, and unlawful restraint in the first degree in violation of General Statutes § 53a-95. The defendant was tried to a jury and was acquitted on the unlawful restraint charge at the conclusion of the state's case. After all the evidence had been presented, the court charged the jury that it might consider not only first degree sexual assault but also what the court termed the "lesser included offenses" of sexual assault in the third and fourth degrees. The jury acquitted the defendant of the first degree charge but found him guilty of sexual assault in the third degree. The court thereupon denied the defendant's motion for acquittal.

The defendant's appeal is grounded on six claims of error. As one claim of error is dispositive of this appeal, we need not discuss the other claims.

The alleged assault arose out of a relationship which was evidently, at least in part, consensual. The events giving rise to the charges occurred at the end of an extended evening of drinking and dalliance, first at a Hartford "singles" bar and later at the victim's apartment, to which she had invited the defendant and another couple in the early morning hours. From the testimony of the other couple, the jury could have concluded that the victim was a willing participant in various sexual activities. These activities culminated in acts of intercourse giving rise to a claim that penetration had occurred as a result of the defendant's use of force. This claim was the basis for the state's charge of sexual assault in the first degree, in violation of General Statutes § 53a-70. ¹ The defendant now appeals his conviction of the offense of sexual assault in the third degree; General Statutes § 53a-72a; on the ground that that offense is not a lesser offense included within the crime of sexual assault in the first degree; General Statutes § 53a-70; with which he was charged. ²

If this assertion is correct, the defendant was convicted of an offense for which he was not on trial. In such a case the conviction would be improper, and the verdict could not stand. As we noted in State v. Rodriquez, 180 Conn. 382, 399 n.10, 429 A.2d 919 (1980), a defendant convicted of an offense of which he was never given notice has been deprived of a fundamental constitutional right and of a fair trial.

If sexual assault in the third degree is a lesser offense included within sexual assault in the first degree, the defendant has had notice of the lesser charge because the statement of the principal charge constitutes notice as to all offenses necessarily included therein. See State v. Jacobowitz, --- Conn. ---, ---, 438 A.2d 792 (42 Conn.L.J No. 30, pp. 8, 9) (1981), which reads as follows: "The constitutional right to notice is satisfied as to lesser included offenses because, 'where one or more offenses are lesser than and included within the one charged, notice of the one charged constitutes notice of any lesser included offenses. See Paterno v. Lyons, 334 U.S. 314, 320-21, 68 S.Ct. 1044, 1047, 92 L.Ed. 1409 (1948).' "

Connecticut's general test for lesser included offenses was recently set forth in complete form in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), and was clarified in State v. Tinsley, 181 Conn. 388, 435 A.2d 1002 (1980). ³

Because Whistnant was decided after the decision under review was rendered, we will test the propriety of the instruction against the earlier rules which are reflected in the Whistnant conditions. ⁴

The leading case on lesser included offenses prior to Whistnant was State v. Brown, 163 Conn. 52, 301 A.2d 547 (1972). In Brown the court focussed on the information as the starting point for an inquiry into possible lesser included offenses. The threshold question was "whether it is possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser." (Emphasis added.) Id., 62, 301 A.2d 547.

In the present case, the information merely charged "sexual intercourse" in violation of General Statutes § 53a-70. Section 53a-65 ⁵ provides the definitions applicable to sexual offenses. Under subsection (2) of that statute, " '[s]exual intercourse' means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete ... intercourse ...." " 'Sexual contact,' " the offense of which sexual assault in the third degree consists, is defined in subsection (3) as "any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor." Subsection (8), in turn, defines " '[i]ntimate parts' " as "the genital area, groin, anus, inner thighs, buttocks or breasts." Under subsection (8), a victim's mouth is not an intimate part. Thus, it is clearly possible to compel a victim to engage in fellatio, a form of intercourse under § 53a-70, without compelling the victim to submit to a nonconsensual touching of her intimate parts, the definition of sexual contact under § 53a-72a. Accordingly, under the information as worded in this case, a violation of § 53a-72a is not included within the violation of § 53a-70.

The Brown court (pp. 60-62, 301 A.2d 547) rejected an earlier approach, appropriate to short form informations, in which the court was free to examine the evidence for any crimes suggested therein. See State v. Mele, 140 Conn. 398, 100 A.2d 570 (1953). Our decision in State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977), stated the rule that a court is to "look only to the information and bill of particulars--as opposed to the evidence presented at trial--to determine what constitutes a lesser included offense of the offense charged." In the present case the trial court evidently adopted the Mele approach, rather than the more restrictive examination of the information required by Brown.

If the examination of the information, and bill of particulars, if any, revealed that a lesser offense could be included in the offense charged, the court had next to consider whether the evidence would support a conviction of that lesser offense. In State v. Brown, supra, 163 Conn. at 61 n.2, 301 A.2d 547, the evidence test is phrased as requiring a rational basis for an acquittal on the charge and a conviction on the lesser included offense.

Applied to the present case, the rule would permit a lesser included instruction only if the evidence would support a conclusion that the victim had consented to intercourse but had objected to other sexual contact. The record before this court suggests no rational basis for such a conclusion, confirming that the lesser included instruction was erroneous.

We therefore conclude that the defendant was deprived of a fair trial. State v. Rodriquez, supra, 180 Conn. at 399 n.10, 429 A.2d 919. It is clear, however, that there can be no review of the judgment of acquittal on the first degree charge even though errors may underlie that judgment. State v. Jacobowitz, supra, --- Conn. at ---, 438 A.2d 792. Nor can there be a new trial on the third degree offense under the present information which does not charge that offense. ⁶

There is error, the judgment is set aside, and the case is remanded with direction to render judgment that the defendant is not guilty of sexual assault in the first degree and ordering that he be discharged.

In this opinion the other Judges concurred.

1 "[General Statutes] Sec. 53a-70. SEXUAL ASSAULT IN THE FIRST DEGREE: CLASS B FELONY. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person."

Cf. "[General Statutes] Sec. 53a-72a. SEXUAL ASSAULT IN THE THIRD DEGREE: CLASS D FELONY. (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such person to fear physical injury to such...