State v. Michael A.
| Decision Date | 23 January 2007 |
| Docket Number | No. 25834.,25834. |
| Citation | 99 Conn.App. 251,913 A.2d 1081 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. MICHAEL A.<SMALL><SUP>1</SUP></SMALL> |
Donald D. Dakers, special public defender, for the appellant (defendant).
Harry Weller, senior assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Mary M. Galvin, former state's attorney, for the appellee (state).
DiPENTIMA, ROGERS and PELLEGRINO, Js.
The defendant, Michael A., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1)2 and risk of injury to a child in violation of General Statutes § 53-21(a)(2).3 The defendant raises the following four claims on appeal: (1) he was denied his constitutional right to notice of the charges against him when the trial court improperly instructed the jury that it could consider the crime of sexual assault in the second degree as a lesser offense included within sexual assault in the first degree; (2) the court improperly instructed the jury on the elements of risk of injury to a child; (3) the court improperly permitted the state to introduce evidence of the defendant's prior misconduct; and (4) the court improperly admitted expert testimony concluding that a sexual assault actually had occurred.4 We agree with the defendant on his first instructional claim, and therefore reverse the judgment of the trial court only as to his conviction of sexual assault in the second degree.
The jury reasonably could have found the following facts. The victim, a fourteen year old high school freshman, resided across the street from the defendant's family and knew the defendant as her boyfriend's father. On the evening of November 29, 2000, the victim encountered the defendant standing outside his apartment building. He called her over, ostensibly for the purpose of talking to her about his son. The victim followed the defendant into an apartment rented by the defendant's sister, which was vacant but for a mattress in the middle of the living room. The defendant positioned himself between the victim and the front door and asked her what she would do if he kissed her, to which the victim replied, "stop playing, Mike." The defendant then proceeded to kiss the victim and to remove her jacket, her pants and her underpants. The victim testified that she did not want this to happen but that she did not fight the defendant or try to stop him because she was very frightened. The defendant laid the victim on the mattress and had sexual intercourse with her. The victim said no, told the defendant that it hurt her and told him to stop, but he did not stop. She could not move because the defendant overpowered her with his weight. After the defendant was finished, he walked the victim to the door and said, "you aren't going to tell anybody, right?" The victim returned home and called the defendant's son. She also told her best friend, T, other friends at school and, eventually, the school authorities, including the police officer at her school. Thereafter, the state charged the defendant with sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1)5 and risk of injury to a child in violation of § 53-21(a)(2). On May 26, 2004, the state filed a substitute part B information charging the defendant with being a persistent serious felony offender as provided in General Statutes § 53a40(c).6 In June, 2004, the jury found the defendant not guilty of sexual assault in the first degree but guilty of sexual assault in the second degree and risk of injury to a child. Following the jury verdict, the defendant pleaded nolo contendere to the part B information, which was conditioned on his right to challenge the underlying conviction. On August 23, 2004, the court, Cremins, J., rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective term of twenty-four years imprisonment followed by ten years special probation and lifetime registration as a sex offender.7 This appeal followed. Additional facts will be set forth as needed.
The defendant raises two instructional claims. (Internal quotation marks omitted.) State v. Romero, 269 Conn. 481, 488, 849 A.2d 760 (2004).
The defendant first claims that the court improperly instructed the jury that it could find him guilty of sexual assault in the second degree as a lesser offense included within sexual assault in the first degree. We agree with the defendant.
The defendant was charged by substitute long form information with one count of sexual assault in the first degree in violation of § 53a-70(a)(1) and one count of risk of injury to a child in violation of § 53-21(a)(2). With respect to the first count, the information charged that the defendant had "engaged in sexual intercourse, to wit: vaginal intercourse, with another person, by the use or threat of use of force against such other person which reasonably caused such person to fear physical injury to such person...." With respect to the second count, the information charged that the defendant "had contact with the intimate parts of a child under the age of sixteen years, or subjected a child under sixteen years of age to contact with his intimate parts, in a sexual or indecent manner likely to impair the health or morals of such child...."8 At the close of evidence, the state filed a request to charge on the lesser included offense of sexual assault in the second degree, which the court granted. During its final argument, the state presented the lesser included offense as an alternative to sexual assault in the first degree, to which defense counsel did not object. The court then instructed the jury on sexual assault in the second degree, to which defense counsel did not take an exception. The jury ultimately found the defendant not guilty of sexual assault in the first degree but found him guilty of sexual assault in the second degree and risk of injury to a child.
Although the defendant concedes that his claim is unpreserved, he seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).9 We agree that the claim is reviewable because the record is adequate, and if the defendant was convicted of a crime for which he was not given proper notice, he was deprived of due process of law. See State v. Tomlin, 266 Conn. 608, 616, 835 A.2d 12 (2003).
The question of whether sexual assault in the second degree is a lesser offense included within the crime of sexual assault in the first degree is a question of law and therefore subject to de novo review. Id., at 615-16, 835 A.2d 12. We begin our analysis of the defendant's claim by reviewing the law regarding lesser included offenses.
"A criminal defendant has a constitutional right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial." (Internal quotation marks omitted.) State v. Ward, 76 Conn. App. 779, 787, 821 A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003); see also State v. Rosario, 82 Conn.App. 691, 695, 846 A.2d 926, cert. denied, 270 Conn. 902, 853 A.2d 521 (2004). This notice is accomplished through the state's charging documents and, particularly, the information. "The information serves the very important function of informing the defendant of the nature and cause of the accusation as required by our federal and state constitutions." (Internal quotation marks omitted.) State v. Ward, supra, at 787, 821 A.2d 822. A court, however, may instruct the jury to consider lesser included offenses of crimes alleged in the charging document because it is assumed that (Internal quotation marks omitted.). State v. Rosario, supra, at 695, 846 A.2d 926.
The test governing lesser included offenses is well settled. For one offense to be included within another, it must not be "possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser...." State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980); State v. Greene, 274 Conn. 134, 158, 874 A.2d 750 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2981, 165 L.Ed.2d 988 (2006). This inquiry is governed by the cognate pleadings approach. State v. Tomlin, supra, 266 Conn. at 618, 835 A.2d 12. (Internal quotation marks omitted.) Id.
The defendant argues that sexual assault in the second degree is not a lesser offense included within sexual assault in the...
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