State v. Morales

• Decision Date: 29 March 2016
• Docket Number: No. 37121.,37121.
• Citation: 136 A.3d 278,164 Conn.App. 143
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ronaldo MORALES.

164 Conn.App. 143

136 A.3d 278

STATE of Connecticut

v.Ronaldo MORALES.

No. 37121.

Appellate Court of Connecticut.

Argued Oct. 19, 2015.

Decided March 29, 2016.

John L. Cordani, Jr., assigned counsel, New Haven, for the appellant (defendant).

Emily D. Trudeau, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Ann F. Lawlor, senior assistant state's attorney, for the appellee (state).

KELLER, MULLINS and SCHALLER, Js.

MULLINS

, J.

The defendant, Ronaldo Morales, appeals from the judgment of conviction, rendered after a jury trial, of strangulation in the second degree in violation of General Statutes § 53a–64bb

, unlawful restraint in the first degree in violation of General Statutes § 53a–95 (a), threatening in the second degree in violation of General Statutes § 53a–62 (a)(1), and assault in the third degree in violation of General Statutes § 53a–61 (a)(1).¹ On appeal, the defendant claims the following: (1) his conviction of unlawful restraint, assault, and strangulation violate his constitutional right against double jeopardy; (2) his jury trial and due process rights were violated when the trial court found at sentencing that the state had proven that the unlawful restraint, assault, and strangulation charges were based on distinct and separate incidents; (3) his constitutional rights were violated when the state introduced at trial evidence of unwarned statements and other conduct; and (4) the trial court erred in admitting prior uncharged misconduct evidence on the issue of intent. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. In October, 2012, after having been in a romantic relationship since earlier that year, the defendant and the victim began living together at the victim's uncle's house at 704 Garfield Avenue in Bridgeport. They lived there with the victim's son, the victim's uncle, and the uncle's friend. In December, 2012, their relationship began to sour. Consequently, in early July, 2013, the defendant began sleeping in a room in the basement instead of in the victim's bedroom.

In the early evening of July 17, 2013, the defendant and the victim were alone at home. The defendant went upstairs and knocked on the victim's bedroom door. After knocking at the door for some time, the defendant demanded that she let him in. She eventually complied.

Once inside the victim's bedroom, the defendant sat next to the victim on the side of her bed, and they discussed their relationship. At some point in the conversation, the defendant punched the victim on the side of her face. After he punched her, he then began choking her, and she lost consciousness. When she regained consciousness, he was on top of her. He expressed surprise that she was not dead and told her that he would have to kill her to prevent her from calling the police. He produced a knife and held it to her back. He then gave the knife to her and told her to kill him. She threw the knife out of reach and begged him to leave.

Then, the victim tried to leave the house. She reached the front door, which was at the bottom of the stairs leading up to her bedroom, but the defendant leapt down the stairs, intercepted her, and prevented her from leaving the house. He then dragged her back upstairs. He forced her back into the bedroom, where she offered him money in exchange for leaving but told him that she did not have the money with her in the house. He replied that he would take her to the bank. The defendant took the victim's keys to her car and drove them to the bank.

When they arrived at the bank, which was closed, the defendant accompanied the victim to the automated teller machine. After she withdrew cash from the machine, he demanded that she give it to him, but she replied that she would give it to him in the car. When they returned to the car, she pretended to climb in until she saw that he was in the car. Once she saw that he was inside the car, she fled to a nearby Walgreen's pharmacy where an employee called the police at her request. The defendant drove away in the victim's car and was arrested thereafter.

The record also reveals the following relevant facts and procedural history. The state charged the defendant by way of an eight count substitute long form information. At the conclusion of the defendant's jury trial, he requested and received a jury instruction as to the lesser included offense of strangulation in the second degree. The jury returned a verdict of guilty on the charges of strangulation in the second degree, unlawful restraint, threatening, and assault.

At the defendant's sentencing hearing, the court, sua sponte, raised the issue of the propriety under § 53a–64bb (b)²

of the jury's guilty verdict on the strangulation, unlawful restraint and assault charges. In response, the state summarized the evidence presented at trial, arguing that it established three separate incidents out of which the charges respectively arose. The defendant countered that the verdict on those charges could not be sustained without knowing whether the jury actually found that each charge arose from a separate incident.³ The court concluded that there was “enough evidence to support jury verdicts on each of these counts as separate and discrete incidents.” In accordance with the jury's verdict, the court imposed a total effective sentence of eight years imprisonment. This appeal followed. Additional facts will follow as necessary.

I

The defendant first claims that his conviction of and punishment for strangulation in the second degree, assault, and unlawful restraint violated his constitutional right against double jeopardy. He argues that his conviction of assault and unlawful restraint must be vacated because (1) those charges arose from the same act or transaction as the charge of strangulation in the second degree, and (2) § 53a–64bb (b)

expresses the legislature's intent to treat strangulation in the second degree as the same offense as assault and unlawful restraint for double jeopardy purposes. We disagree.

Before discussing the merits of this claim, we note that the defendant never raised a double jeopardy challenge in the trial court, and, therefore, his double jeopardy claim was not preserved for appellate review. State v. Thompson, 146 Conn.App. 249, 259, 76 A.3d 273

(“[i]t is well settled that [o]ur case law and rules of practice generally limit this court's review to issues that are distinctly raised at trial” [internal quotation marks omitted] ), cert. denied, 310 Conn. 956, 81 A.3d 1182 (2013)

. He also has not sought review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).⁴ Nevertheless, we will consider his double jeopardy claim because the record is adequate for our review and the claim is of constitutional magnitude. State v. Elson, 311 Conn. 726, 754–55, 91 A.3d 862 (2014) (no need for affirmative request for Golding review if record is adequate and claim is of constitutional magnitude); State v. Chicano, 216 Conn. 699, 704–705, 584 A.2d 425 (1990) (double jeopardy claim reviewable under Golding ), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991), overruled in part on other grounds by State v. Polanco, 308 Conn. 242, 248, 261, 61 A.3d 1084 (2013).

“A defendant's double jeopardy challenge presents a question of law over which we have plenary review.... The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment.... This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial....

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met....

“Traditionally we have applied the Blockburger⁵ test to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy: [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.... This test is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial....

“Our analysis of [the defendant's] double jeopardy [claim] does not end, however, with a comparison of the offenses. The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.... Thus, the Blockburger test creates only a rebuttable presumption of legislative intent, [and] the test is not controlling when a contrary intent is manifest.... When the conclusion reached under Blockburger is that the two crimes do not constitute the same offense, the burden remains on the defendant to demonstrate a clear legislative intent to the contrary.” (Citations omitted; footnote added; internal quotation marks omitted.) State v. Wright, 319 Conn. 684, 689–90, 127 A.3d 147 (2015)

.

Finally, “[o]n appeal, the defendant bears the burden of proving that the [convictions] are for the same offense in law and fact.” (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 361, 796 A.2d 1118 (2002)

.

The defendant argues that in assessing whether multiple charges arose from the same act or...