State v. Montoya

• Decision Date: 02 September 2008
• Docket Number: No. 28164.,28164.
• Citation: 110 Conn.App. 97,954 A.2d 193
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Leonardo MONTOYA.

954 A.2d 193

110 Conn.App. 97

STATE of Connecticut v. Leonardo MONTOYA.

No. 28164.

Appellate Court of Connecticut.

Argued May 28, 2008.

Decided September 2, 2008.

Mary H. Trainer, special public defender, for the appellant (defendant).

Tamara A. Grosso, special deputy assistant state's attorney, with whom were Michael E. O'Hare, supervisory assistant state's attorney, and, on the brief, Jonathan

C. Benedict, state's attorney, and Pamela J. Esposito, assistant state's attorney, for the appellee (state).

BISHOP, BEACH and FOTI, Js.

BISHOP, J.

The defendant, Leonardo Montoya, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(2). On appeal, the defendant claims that he is entitled to a judgment of acquittal because the evidence adduced at trial was insufficient to sustain the conviction and that the prosecutor engaged in a pattern of impropriety that deprived him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was a Roman Catholic seminarian in Colombia who came to the United States to continue his religious studies. He became friendly with the sixteen year old victim, T,¹ her father and her stepmother when he assisted with the baptism of T's stepbrother. The defendant often visited the family at the home of T's father in Bridgeport and had, at one point, counseled T via e-mail about dreams she was experiencing.

T lived in Waterbury with her mother and stepfather but sometimes spent weekends with her father in Bridgeport. On Saturday, November 29, 2003, T wanted to attend a small farewell party at her father's house in honor of the extended vacation that her father and stepmother were planning on taking to Colombia the following Friday. As her father was still working, he asked the defendant to drive to Waterbury to bring T to Bridgeport.

The defendant agreed and, accompanied by T's stepmother and her young son, drove to Waterbury, picking up T from her mother's home around 5:30 p.m. On the return trip, T's stepmother sat in the rear seat with her sleeping son, leaving T in the front passenger seat with the defendant driving. During the trip, the defendant touched T's knee. While T did not like this contact, she was not scared and did not mention it to her parents.

When they arrived in Bridgeport, they went to the kitchen where T's stepmother prepared food. Shortly thereafter, three adult female friends of the family and a boy arrived. T's father came home around 7 p.m. After eating dinner, T went upstairs with her stepbrother and the other boy while the adults remained downstairs drinking Colombian liquor until about 9 or 10 p.m. At this point, the female guests and the boy left. T took a shower and went to bed in her room alone.

Around 1 a.m., the defendant entered T's room and woke her by pulling at her bedsheets and telling her she had pretty eyes. T yelled at the defendant, who smelled of alcohol, telling him to go away. When the defendant just giggled, T got up and pushed him out the door. T then went back to sleep.

At approximately 5:45 a.m., T awoke again because her cellular telephone alarm began ringing. T picked it up, opened it and saw that there was a message from her boyfriend. By the light of her telephone, T noticed that the defendant was asleep in the other twin bed in her room. T then rolled over and went back to sleep. The next time she woke up, she heard the wooden floorboards creak as someone walked out of her bedroom and used the bathroom. She then heard the door shut as the person came back into her room. T took the comforter off her face and saw a man standing over her bed. Thinking it was her father, as he had mentioned he wanted to talk to her the previous night, she rolled away and pulled the covers over her head again.

At this point, she felt the mattress sink and the comforter move as if someone was trying to lift it. Next, she felt a tingling sensation on her upper thigh. The tingling sensation moved up, and she felt her "private area," or vagina, being rubbed from behind. Though the comforter was still over her head, T could hear breathing over her. When T realized that the defendant was touching her, she sprang from the bed and ran to her father's and stepmother's room where she started yelling about what had happened to her. T and her stepmother then went to T's room where they saw the defendant, awake, lying on top of the covers of his bed looking at the ceiling. T began shouting at the defendant and accusing him of touching her. This woke her father, who came running into the room. When T told her father that the defendant had touched her, he ordered the defendant to leave. In response, the defendant replied, "It's a lie."

T went downstairs with her stepmother and had a glass of water. When the defendant came downstairs, T threw the water at him. After the defendant left, T told her father and stepmother that she wanted to go home. They called her mother, who instructed them to bring T home so that she could take her to the police station to file a report. Upon arriving home, T went to the police station with her mother and filed a report about the incident.

The day after the incident, T was very upset. She felt suicidal and threatened to kill one of her teachers at school. T was checked into the psychiatric wing of a hospital where she remained for four days. Upon her release from the hospital, T was prescribed medicine, and she was still taking antidepressants at the time of the trial. T had no history of such episodes before the incident in question.

At the conclusion of the state's case-in-chief, and again after the close of evidence, the defendant moved for a judgment of acquittal on the basis that there was insufficient evidence to find him guilty of sexual assault. The court denied both motions. Thereafter, the defendant was convicted and sentenced to the custody of the commissioner of correction for a total effective sentence of one year incarceration, execution suspended after ninety days, with three years probation. This appeal followed.

I

The defendant claims that there was insufficient evidence to convict him of sexual assault in the fourth degree. Specifically, the defendant argues that he is entitled to an acquittal both because T's testimony was inconsistent and, therefore, not credible and because the state failed to prove that he was the perpetrator of the sexual assault. We disagree.

"In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] 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....

"Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence that it deems to be reasonable and logical....

"Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal.... 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 [finder of fact's] verdict of guilty." (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007).

With this standard in mind, we turn now to the elements of sexual assault in the fourth degree. General Statutes § 53a-73a(a) provides in relevant part: "A person is guilty of sexual assault in the fourth degree when ... (2) such person subjects another person to sexual contact without such other person's consent...." For the purposes of this case, the term "sexual contact" means "any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor...." General Statutes § 53a-65(3). "Intimate parts" as applicable here means the genital area. See General Statutes § 53a-65(8). Sexual contact can be indirect and through clothing as long as it occurs for the purpose of sexual gratification. State v. Eric T., 8 Conn.App. 607, 613, 513 A.2d 1273 (1986).

When reviewing the facts in the light most favorable to sustaining the verdict, it is plain that the state met its burden of establishing that T was sexually assaulted. T testified that she saw the defendant sleeping in...