State v. Milardo

• Decision Date: 12 January 1993
• Docket Number: No. 14311,14311
• Citation: 618 A.2d 1347,224 Conn. 397
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. William J. MILARDO.

Page 1347

618 A.2d 1347

224 Conn. 397

STATE of Connecticut v. William J. MILARDO.

No. 14311.

Supreme Court of Connecticut.

Argued Sept. 22, 1992.

Decided Jan. 12, 1993.

Berdon, J., filed dissenting opinion.

Thomas W. Ude, Jr., Sp. Public Defender, for the appellant (defendant).

Marjorie Allen Dauster, Deputy Asst. State's Atty., with whom, on the brief, were John T. Redway, State's Atty., and Bernadette Conway, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

CALLAHAN, Associate Justice.

This appeal concerns several issues arising out of the criminal trial of the defendant, William Milardo. The state charged the defendant in a two part information. The first part charged the defendant with the crimes of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-70 and 53a-49(a)(2), ¹ kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), ² unlawful restraint in the first degree in violation of General Statutes § 53a-95, ³ and two counts of assault in the third degree in violation of General Statutes § 53a-61(a)(1). ⁴ The second part of the information charged the defendant with being a persistent serious felony offender pursuant to General Statutes § 53a-40(b). ⁵ A jury returned verdicts of guilty of attempted sexual assault in the first degree, unlawful restraint in the first degree and unlawful restraint in the second degree in violation of General Statutes § 53a-96 as a lesser included offense of kidnapping. The jury then convicted the defendant of being a persistent serious felony offender. Following the defendant's convictions, the court sentenced him to a term of imprisonment of twenty years. He appeals to this court pursuant to General Statutes § 51-199(b)(3). ⁶ We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On May 4, 1990, at approximately 12 p.m., the victim, a student at Wesleyan University in Middletown, was in her bedroom located on the second floor of the two-story house that the defendant, the victim and three others rented. The victim was awake, lying in bed under the covers. At that time, the defendant opened her bedroom door, and, while standing in her doorway, inquired as to the whereabouts of one of their other housemates. The defendant then walked toward the victim, whispering, "Shuh, shuh, shuh," as he approached her. He then got onto the victim's bed, pulled her covers off, lay on top of her, and said, "Kiss me." The victim struggled and the defendant pinned her arms down and placed his hand over her mouth to prevent her from screaming. The defendant also put his hands under the victim's shirt, grabbed her breasts, and put his hand down her pants and underneath her underpants.

During the encounter another young woman, a friend of the victim, who also lived in the house, returned home. Upon entering, she heard muffled screams. Startled, she went to the victim's bedroom, opened the door, and saw the defendant lying on top of victim. Seeing the victim's friend, the defendant climbed off the victim and moved to the edge of the bed. Alarmed, the victim's friend yelled, "What the hell is going on here?" The defendant responded, "Nothing, nothing." The victim's friend then went to her own bedroom and attempted to call campus security.

The defendant entered the bedroom of the victim's friend and attacked her, grabbing her neck and holding her in a headlock. The victim heard her friend cry out and went to her aid. The victim struggled with the defendant, trying to free the other woman. The two women then screamed and advised the defendant that if he did not leave they would call the police. Eventually, the defendant left the house.

On appeal, the defendant claims that: (1) there was insufficient evidence from which a jury could reasonably have concluded that the defendant attempted to commit sexual assault in the first degree; (2) the trial court improperly instructed the jury on his alibi defense; (3) the trial court failed to instruct the jury properly that in order to convict the defendant of attempted sexual assault in the first degree it must find proven beyond a reasonable doubt that the defendant intended to compel sexual intercourse; (4) the trial court improperly instructed the jury on the charge of sexual assault in the first degree by reciting the entire statutory definition of sexual intercourse; (5) the trial court improperly denied the defendant's request to instruct the jury that the attempted third degree sexual assault was a lesser included offense of attempted first degree sexual assault; and (6) the trial court's instruction regarding the persistent serious felony statute denied the plaintiff due process of law.

I

The defendant first claims that there was insufficient evidence from which a jury could have concluded beyond a reasonable doubt that he acted with the intent to commit the crime of attempted sexual assault in the first degree. We disagree.

When reviewing a claim of insufficiency of evidence, our task is twofold: "We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt." State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112 L.Ed.2d 413 (1990).

Every element of the crime charged must be established by proof beyond a reasonable doubt. The basic facts underlying the elements of the crime charged, however, may be reasonably inferred by the factfinder. State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). "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." State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992); State v. Grant, 219 Conn. 596, 604-605, 594 A.2d 459 (1991).

In order to convict the defendant of attempted sexual assault in the first degree in violation of §§ 53a-70 and 53a-49(a)(2), the state must have proven beyond a reasonable doubt that "the defendant acted with the specific intent to commit sexual assault in the first degree which in turn included the intent to have sexual intercourse "; (emphasis added) State v. Green, 194 Conn. 258, 273, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 964, 83 L.Ed.2d 969 (1985); and that the defendant took a "substantial step in a course of conduct planned to culminate in his commission of the crime." General Statutes § 53a-49(a)(2).

Intent may be inferred from the conduct of the accused. State v. Carpenter, 214 Conn. 77, 82, 570 A.2d 203 (1990); State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381 (1972). The intent of the actor is an issue to be determined by the trier of fact. State v. Carpenter, supra, 214 Conn. at 83, 570 A.2d 203. Likewise, what constitutes a "substantial step" in any given case is a matter of degree and a "question of fact" for the jury. State v. Green, supra, 194 Conn. at 275, 480 A.2d 526. The substantial step must be "at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the actor at least to be possible of commission by the means adopted." Id., at 272, 480 A.2d 526; State v. Mazzadra, 141 Conn. 731, 736, 109 A.2d 873 (1954).

The jury heard evidence that the defendant, believing that he was alone in the house with the victim, entered the victim's bedroom without invitation and, despite her resistance, lay on top of her, muffled her screams, kissed her, placed his hands under her shirt and pants, and forcibly touched her breasts and genital area. The jury could reasonably have found from this evidence that the defendant intended to compel the victim to engage in sexual intercourse, had he not been interrupted by the victim's friend soon after the assault had begun. The jury also could reasonably have found from the evidence of his actions that the defendant had taken a substantial step toward the commission of the crime of sexual assault in the first degree, and that the substantial step evinced the defendant's specific intent to commit that crime.

The defendant also argues that there was insufficient evidence to prove that he had the requisite intent to commit sexual assault in the first degree because the evidence of intent to compel sexual intercourse cannot be distinguished from intent to compel sexual contact, an element of the crime of sexual assault in the third degree in violation of General Statutes § 53a-72a(a). ⁷ We disagree.

We have held that even if a jury could infer from a given set of facts that a defendant might have intended to commit a crime other than that charged, the jury is not precluded from reasonably finding that he intended to commit the crime with which he was charged. State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). That holding has application here. After the defendant had pinned down the victim, muffled her screams, and began forcibly touching her breasts and genital area, the defendant's assault was cut short only when the victim's friend entered the bedroom and confronted him. The jury could reasonably have inferred that the defendant intended his actions to culminate in compelled sexual intercourse rather than the sexual contact that had already occurred before the...