State v. Michael H.

• Decision Date: 26 May 2009
• Docket Number: No. 18195.,18195.
• Citation: 291 Conn. 754,970 A.2d 113
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. MICHAEL H.<SMALL><SUP>*</SUP></SMALL>

970 A.2d 113

291 Conn. 754

STATE of Connecticut v. MICHAEL H.^*

No. 18195.

Supreme Court of Connecticut.

Argued November 19, 2008.

Decided May 26, 2009.

Ira B. Grudberg, with whom was Trisha M. Morris, New Haven, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, senior assistant state's attorney, for the appellee (state).

KATZ, PALMER, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

SCHALLER, J.

The defendant, Michael H., appeals¹ from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a(a)(1)(A), and risk of injury to a child in violation of General Statutes (Rev. to 2005) § 53-21(a)(2). On appeal, the defendant claims that: (1) the trial court improperly deprived him of his right to a fair trial when it denied his pretrial motion for a "taint hearing" to assess the reliability and admissibility of the testimony of the victim; and (2) there was insufficient evidence to convict him of both counts. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. The male victim, E, was four years old during the summer of 2005. The defendant, who was married to E's paternal grandmother, was E's stepgrandfather. During that summer, E and his sister, C, occasionally visited the home of their grandmother and the defendant. On at least one occasion, while the defendant and E were seated on the couch, the defendant placed his hand over E's genital area and fondled him.

On August 10, 2005, while using the toilet, E spontaneously told his mother that "sometimes [the defendant] touches my pee-pee." After his mother asked when this occurred, E responded that it occurred when he and the defendant "were watching TV on the couch" at his grandmother's house. The mother then told E that it was not okay for the defendant to touch him in that manner. Immediately after this conversation, the mother went upstairs to question her daughter, C, who was asleep. After informing C about E's disclosure, the mother asked C whether the defendant had touched her private area. C nodded in the affirmative. When the mother asked if the defendant had touched her on the vagina, C indicated in the affirmative. After additional questioning, C indicated to her mother that the touching had occurred while she was sitting on the defendant's lap at his computer and that it had occurred on more than one occasion. As with E, the mother informed C that it was not appropriate for the defendant to touch her private area. After her conversation with C, the mother located E and asked him additional questions. Specifically, she asked where the defendant had touched him and E responded by placing his hand over his penis and moving his hand in a rubbing motion.

Thereafter, the mother contacted the police who, in turn, contacted the department of children and families (department). On August 11, 2005, Jennifer Benzie, a social worker with the department interviewed both E and C. Benzie interviewed each child separately and conducted the interview pursuant to a method commonly used to interview children who may have been the victims of abuse.² Although Benzie interviewed E on two separate occasions, he did not make any disclosures regarding the abuse. C, on the other hand, indicated to Benzie that the defendant had touched her on her vagina on more than one occasion.

Prior to trial, the defendant moved for a "taint hearing" in order to preclude the testimony of E and C, which the defendant argued was unreliable due to allegedly suggestive and coercive questioning by the mother and Benzie. Although the defendant did not take issue with the mother's initial questioning of E after his spontaneous statement,³ the defendant argued that the mother's questioning of C and her subsequent questioning of E was unduly suggestive because it vilified the defendant and obtained information that was simply E and C assenting to their mother's statements, rather than providing their own independent recollections. Likewise, the defendant argued that Benzie's interview corrupted the reliability of the children's testimony because two aspects of the method that she used — namely, advisements at the beginning of the interview about good touches versus bad touches, and the use of anatomical drawings — lead to false positive accusations of child abuse. After hearing oral argument, the trial court denied the motion on the grounds that there was no showing that the testimony of either E or C had been the product of suggestive or coercive questioning, and that Connecticut courts have not recognized pretrial taint hearings. The jury acquitted the defendant with respect to the offenses related to C,⁴ but convicted the defendant of the charges related to E. The defendant filed a motion to set aside the verdict and render judgment of acquittal, which was denied by the trial court. This appeal followed.

I

We first address whether there was sufficient evidence to support the defendant's conviction of sexual assault in the fourth degree in violation of § 53a-73a(a)(1)(A), and risk of injury to a child in violation of § 53-21(a)(2). The defendant principally claims that the evidence was insufficient because: (1) E's testimony was the product of suggestive and coercive influence and was, therefore, unreliable; (2) E's testimony was internally inconsistent; and (3) E failed to identify the defendant in the courtroom. In addition, the defendant claims that the observations made by the mother and E's teacher, Janet Lamarre, about E's behavior were not indicative of abuse. The state contends that the evidence was sufficient to support the conviction on the basis of E's testimony alone. In addition, the state argues that the evidence regarding E's subsequent behavior coupled with the evidence adduced during the defendant's case-in-chief further support the conviction. We agree with the state.

"The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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.... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict....

"While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt....

"On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty." (Citations omitted; internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667-69, 804 A.2d 810 (2002).

A

We first address whether the evidence was sufficient to support the defendant's conviction of sexual assault in the fourth degree. General Statutes (Rev. to 2005) § 53a-73a(a)(1) provides in relevant part that a person is guilty of sexual assault in the fourth degree when "[s]uch person intentionally subjects another person to sexual contact who is (A) under fifteen years of age...." General Statutes § 53a-65(3) defines "`[s]exual contact' " as "any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person...." General Statutes (Rev. to 2005) § 53a-65(8) defines "`[i]ntimate parts'" as "the genital area...." Accordingly, the state was required to present sufficient evidence to prove beyond a reasonable doubt that the defendant had contact with E's genital area for the purpose of sexual gratification or for the purpose of degrading or humiliating him.

We conclude that there was sufficient evidence to support the conviction. At trial, E testified that he and C no longer visited his grandmother's house because the defendant "was doing bad things." When asked what those things were, E responded that the defendant had touched him in his private area.⁵ He testified that the touching had occurred on more than one occasion. E further was able to recall approximately how old he was at the time of the abuse, and that the abuse occurred while he was seated on the couch next to the defendant. He also testified that the touching had occurred on top of his clothes and demonstrated how the touching had occurred, namely, that the defendant had rubbed his hands over E's genital area in a back and forth motion. Finally, E testified that sometimes the touching had occurred while his grandmother was in another room.⁶ From this testimony alone, there was sufficient evidence that the defendant had contact with the intimate parts of E for the purposes of sexual gratification.⁷ State v. Whitaker, 215 Conn. 739, 757 n. 18, 578 A.2d 1031 (1990), citing State v. Hodge, 153 Conn. 564, 573, 219 A.2d 367 (1966) (testimony of single witness sufficient to support finding of guilt beyond reasonable doubt); see also State v. Montoya, 110 Conn.App. 97, 103, 954 A.2d 193 (2008) (that defendant chose to touch victim's vagina...