State v. Mezrioui
| Decision Date | 21 January 1992 |
| Docket Number | No. 9836,9836 |
| Citation | 602 A.2d 29,26 Conn.App. 395 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Essaid MEZRIOUI. |
Martin Zeldis, Asst. Public Defender, for appellant (defendant).
Julia DiCocco Dewey, Asst. State's Atty., with whom, on the brief, were John Bailey, State's Atty., and Edward Narus, Asst. State's Atty., for appellee (State).
Before LAVERY, LANDAU and CRETELLA, JJ.
After a jury trial, the defendant was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70(a) and sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1)(B). In this appeal, the defendant claims (1) that there was insufficient evidence presented at trial to prove beyond a reasonable doubt that he violated either of the sexual assault statutes charged, (2) that both § 53a-70(a) and § 53a-72a(a)(1)(B), as applied to the facts of this case, are unconstitutionally vague, (3) that the prohibition against double jeopardy was violated by his trial and punishment for both § 53a-70(a) and § 53a-72(a)(1)(B), and (4) that the trial court's instructions to the jury unfairly marshalled the evidence and misstated important evidentiary facts, thus depriving him of a fair trial. We affirm the judgment of the trial court.
The jury could reasonably have found the following facts. On the evening of October 4, 1989, the victim and several female friends went to a Manchester bar to celebrate the upcoming marriage of one of the women. The bar featured male dancers, who gradually disrobed while dancing for the all female audience. At the conclusion of the performance, at approximately 10 p.m., the bar was opened to male patrons as well.
The defendant arrived at the bar at approximately 11 p.m. A short time after his arrival, the defendant began dancing with one of the victim's female friends. During this time, the victim and her friends discussed the possibility of getting some marihuana. Later, the defendant offered the victim some marihuana.
The victim informed her friends that she would return shortly and followed the defendant to his car. The two entered the car, where the defendant told the victim that he did not want to give her the marihuana because the police patrolled the area. He then told her that he did not have any marihuana with him, but that he could get some at a nearby house.
After driving for approximately ten minutes, the defendant began making sexual advances toward the victim and threatened to beat her. The victim tried to dissuade the defendant by telling him that she was infected with the AIDS virus. When the defendant persisted, the victim attempted to discourage him by telling him that she was menstruating. The defendant again threatened her. After the defendant demanded that the victim remove her clothing, he fondled her breasts, and then engaged in intercourse with her. The victim testified that she had submitted due to fear of bodily harm.
After the assault, the victim left the car to get dressed. When she returned to the car, she told the defendant she knew where they could get some drugs, and directed him to the home of a close friend in East Hartford. Upon their arrival, the victim entered the house while the defendant waited outside in his car. The victim had hidden her brassiere in the car as proof of the incident. The victim told her friend that she had been raped and called the police, indicating that her assailant was parked in the car in front of the house. Shortly thereafter, East Hartford police officers arrived, arrested the defendant, and, after determining that the incident had taken place in Manchester, contacted the Manchester police department. Throughout this period, the victim alternated between being calm and being agitated. After the victim's husband arrived, he took her to Manchester Memorial Hospital where a physical examination was performed.
The defendant first asserts that there was insufficient evidence presented at trial to prove beyond a reasonable doubt that he violated either General Statutes § 53a-70(a) or § 53a-72a(a)(1)(B). State v. Montanez, 219 Conn. 16, 19, 592 A.2d 149 (1991). The inquiry on appeal is whether the evidence is sufficient to prove the elements of the crimes. In the present case, the elements involved are (1) sexual intercourse; § 53a-70(a); and sexual contact; § 53a-72a(a)(1)(B); and (2) the use or threat of force.
The defendant concedes that he had sexual intercourse and sexual contact with the victim but contends that the victim consented, or that he reasonably believed that the victim's conduct, under all the circumstances, indicated her consent. In State v. Smith, 210 Conn. 132, 142, 554 A.2d 713 (1989), our Supreme Court stated that "whether a complainant should be found to have consented [in a sexual assault case] depends on how her behavior would have been viewed by a reasonable person under the surrounding circumstances." The defendant maintains that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the victim's conduct indicated a lack of consent. We disagree.
At trial, the victim testified that she did not want to engage in sexual activity with the defendant. She attempted to dissuade the defendant from continuing his sexual advances by making two separate statements. First, she told him that she was infected with the AIDS virus. When the defendant persisted, she told him that she was menstruating. Despite her statements, the defendant insisted that they engage in sexual activity, threatening her with physical violence. At that point, the victim submitted to the defendant's demands.
We are unpersuaded by the defendant's contention that the jury could not have found the victim's lack of consent beyond a reasonable doubt. Although the victim never said "no" or "stop," such an explicit verbal rejection of unwanted sexual advances is not required by State v. Smith, supra. Similarly, it is not necessary that the victim physically resist the unwanted sexual advances. State v. Mastropetre, 175 Conn. 512, 522-23, 400 A.2d 276 (1978). The fact that the victim eventually submitted to the defendant's demands after he threatened the use of force does not amount to consent on her part. Indeed, "where forcible compulsion is proven beyond a reasonable doubt, a lack of consent is implicit." State v. Clinkscales, 21 Conn.App. 411, 419, 574 A.2d 243 (1990). Therefore, when, as here, a victim submits to unwanted sexual advances after being subjected to force or a threatened use of force, such submission does not pardon the use of force. See State v. Rogers, 198 Conn. 53, 61, 502 A.2d 360 (1985). In the present case, we conclude that the cumulative force of the evidence presented at trial was sufficient to support the jury's verdict on each of the sexual assault charges.
The defendant's second claim is that General Statutes §§ 53a-70(a) 1 and 53a-72a(a)(1)(B) 2 are unconstitutionally vague as applied to the facts of this case. This claim is raised for the first time on appeal, and the defendant seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).
"State v. Golding, supra, establishes that a defendant cannot prevail on an unpreserved constitutional claim unless all four conditions are met, any one of which may be considered first." 3 State v. Shaw, 24 Conn.App. 493, 497, 589 A.2d 880 (1991). Under the third Golding condition, the defendant can prevail only if the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823.
A penal statute must be sufficiently defined to enable a person to know what conduct must be avoided. State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980). Unless first amendment freedoms are involved, a claim that a statute is void for vagueness is determined by its applicability to the particular facts presented. Id., 57, 428 A.2d 322. The defendant contends that the victim chose not to resist his advances, and was intimidated solely by the size of the defendant and the unfamiliarity of the surroundings, rather than by the use of force or threat of the use of force. The victim, however, was not wholly passive in that she attempted to dissuade the defendant by telling him that she was infected with the AIDS virus and was menstruating. Nor was the victim intimidated solely by the size of the defendant and the unfamiliarity of the surroundings. The victim submitted to the defendant's demands only after he threatened her.
Our Supreme Court in State v. Smith, supra, on facts similar to those here, rejected the same vagueness claim. The language of the challenged statutory provisions is perfectly clear when applied to the facts of this case. We conclude that the defendant has thus failed to meet the third Golding condition and his claim must necessarily fail. State v. Tweedy, 219 Conn. 489, 511, 594 A.2d 906 (1991); State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823.
The defendant's next claim is that he committed only one sexual act, and may not be convicted twice on the basis of that act. He bases his argument on the fifth and fourteenth amendments to the United States constitution. We disagree.
It is well established that the double jeopardy clause of the fifth amendment prohibits multiple punishments for the same offense. State v. Snook, 210 Conn. 244, 264, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106...
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