State v. Michael G.

• Decision Date: 06 May 2008
• Docket Number: No. 27665.,27665.
• Citation: 107 Conn.App. 562,945 A.2d 1062
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. MICHAEL G.<SMALL><SUP>1</SUP></SMALL>

945 A.2d 1062

107 Conn.App. 562

STATE of Connecticut v. MICHAEL G.¹

No. 27665.

Appellate Court of Connecticut.

Argued February 21, 2008.

Decided May 6, 2008.

Cameron R. Dorman, special public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Dawn M. Gallo, assistant state's attorney, for the appellee (state).

McLACHLAN, HARPER and BEACH, Js.

BEACH, J.

The defendant, Michael G., appeals from the judgment of conviction, rendered after a jury trial, of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and four counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) determined that there was sufficient evidence to support the jury's verdict of guilty, (2) instructed the jury on expert witness testimony and (3) admitted into evidence photographs of his residence and testimony by a state police trooper who executed a search of the defendant's residence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In early 1998, when the victim, M, was eight years old, she moved to northwestern Connecticut with her mother, C, her two brothers and her father, the defendant. She entered second grade at the local school. Five or six months after the move to Connecticut, the defendant began to assault her sexually. M testified that one day, the defendant called her into his bedroom, removed her clothes and positioned her on her back on the side of the bed, with her legs dangling over the edge. He then inserted his penis into her vagina. When he was finished, the defendant ejaculated into a washcloth.

M testified that the defendant had vaginal intercourse with her on at least a weekly basis through the sixth grade, unless the family was on vacation or M had her menstrual period. Before engaging in intercourse, the defendant sometimes would give M alcoholic beverages and show her pornographic movies or images. During intercourse, the defendant occasionally used petroleum jelly as a lubricant. The defendant also would enter the shower with M and have her wash his body, including his penis.

When M was twelve years old, in 2001, the family moved to Massachusetts, where she resided with her immediate family, as well as her paternal uncle and his wife and their three children. Approximately two years after moving to Massachusetts, in August, 2003, M's mother, C, moved to upstate New York to care for her ailing father and returned to Massachusetts on the weekends. M's brothers had gone to New York to live with their grandparents in June, 2003. M and the defendant were planning to join them in New York at some point in the near future and were preparing to move in October, 2003. On October 27, 2003, M called her mother in New York and left a message. When C returned the call, M told her that the defendant had been assaulting her and that she "couldn't take it anymore." The day before M called C, the defendant had told her that he wanted to have sex with her, but she had refused. In response, the defendant hit her in the face. Upon hearing this news, C told her daughter to pack her bags secretly and to tell her aunt what had happened. The police arrived shortly thereafter and took M to the police station, where she gave a statement. The defendant was arrested and charged accordingly.

A trial was held in December, 2005. Ann Burgess, an expert in child sexual abuse, testified at the trial. Burgess, who did not treat M, described general symptoms of sexually abused children, including common delayed reporting of such abuse. John Dellenbach, a pediatrician with expertise in the examination of children for sexual assaults, testified about a sexual abuse video colposcopy he performed on M on November 13, 2003. At trial, Dellenbach compared photographs of a normal prepubescent female hymen with photographs of M's hymen, which had a distinctive notch and scar tissue indicative of a tear that had healed. He testified that his finding was consistent with a history of repetitive vaginal intercourse and that, although he did not know how the hymen was injured, it had to have been caused by at least one incident of penetration by a ridged, blunt instrument. He noted, however, that the injury could not have been caused by masturbation or a tampon.

At trial, family members testified about questionable behaviors on the part of the defendant, such as his propensity to position M on his lap, directly over his genital area, while dressed only in underwear. The defendant also slept with M in the marital bed while C was away in New York. M's older brother testified that when M was six or seven, he walked into the defendant's bedroom and found the defendant naked with M, who was not wearing a shirt or pants. The defendant explained to M's older brother that M had "messed her pants." M's older brother also testified that M and the defendant were often alone in the marital bedroom and that the defendant often angrily insisted that the brother make his presence known when he was near the bedroom. M's uncle, who resided with M in Massachusetts, testified that the defendant spoiled M and bought her makeup and jewelry.

On December 20, 2005, the jury returned a guilty verdict on four counts of sexual assault in the first degree and four counts of risk of injury to a child. On March 10, 2006, the defendant was sentenced to a total effective term of eighty years imprisonment, execution suspended after forty years, followed by six years of special parole and twenty years probation. This appeal followed.

I

The defendant first claims that the evidence was insufficient to support the conviction as to the sexual assault and risk of injury charges stemming from his conduct in 1998.² Specifically, he contends that M's testimony contained inconsistencies such that the jury could not have found that any assaults occurred in 1998. We disagree.

When reviewing sufficiency of the evidence claims we apply a two part test. "First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

The defendant argues that the evidence was insufficient to demonstrate that he assaulted M in 1998. In support of his argument, the defendant cites portions of M's testimony when her memory was faulty. In particular, the defendant notes that "she claimed that the assaults began five to six months after the family moved to Connecticut. She also claimed that she was in the second grade when the assaults began.... Since the victim moved to Connecticut in January, 1998, it would be impossible for the sexual assaults to occur while she was in second grade because she would not have been in school, but on summer break at the time she claims the sexual assaults began." (Citation omitted.) The defendant concludes that the jury therefore had to engage in speculation to find that the assaults began in 1998.

The defendant's claim, although clothed in sufficiency of the evidence language, in reality challenges the credibility of M's testimony. His attack on M's credibility is exemplified by his description of her testimony as "clearly improbable and unconvincing," as well as "unreliable and impossible." "Our task is to view the evidence in the light most favorable to sustaining the verdict before determining if the jury reasonably could have concluded that such evidence established guilt beyond a reasonable doubt.... We assume that the jury credited the evidence that supports the conviction if it could reasonably have done so. Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses.... Our review of factual determinations is limited to whether those findings are clearly erroneous.... We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude." (Citation omitted; internal quotation marks omitted.) State v. Osoria, 86 Conn.App. 507, 514-15, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005). On the record before us, the jury reasonably was free to credit M's testimony. Because we cannot decide issues of credibility, the defendant's first claim fails.

II

The defendant next claims that the court improperly instructed the jury. Specifically, the defendant claims that pursuant to Nash v. Hunt, 166 Conn. 418, 352 A.2d 773 (1974), "the trial court's charge to the jury failed to (a) delineate specifically the subordinate facts and (b) adequately advise and caution the jury regarding the proof and completeness of the facts used in opinions based on hypothetical questions." We agree that the court should have given the requested instruction but conclude that the error was harmless.

The following additional facts are necessary to our resolution of the defendant's claim. During her testimony at trial, the state's expert on child sexual abuse, Burgess, answered several hypothetical questions posed by the state. Following the court's instruction to the jury, the defendant preserved his claim by taking exception to the court's failure to instruct the jury with his requested charge concerning expert testimony and hypothetical questions.³

"Although [a] request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given ... [a] refusal to charge in the...