State v. Morris, 16144

• Decision Date: 14 July 1998
• Docket Number: No. 16144,16144
• Citation: 49 Conn.App. 409,716 A.2d 897
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. William MORRIS.

Page 897

716 A.2d 897

49 Conn.App. 409

STATE of Connecticut v. William MORRIS.

No. 16144.

Appellate Court of Connecticut.

Argued April 29, 1998.

Decided July 14, 1998.

Donald Dakers, Special Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Dennis O'Connor, Assistant State's Attorney, for appellee (State).

Before FOTI, LAVERY and SULLIVAN, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2), two counts of risk of injury to a child in violation of General Statutes § 53-21, and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a)(1)(A). ¹ The defendant claims that the trial court improperly (1) failed to vacate his conviction of sexual assault in the first degree because it was a lesser included offense of sexual assault in the second degree, (2) permitted the state to amend the information, and (3) instructed the jury on the charge of risk of injury to a child. ² The defendant also claims that his conviction of both risk of injury to a child and sexual assault in the fourth degree, based on a single act, constitutes multiple punishment for the same offense in violation of his constitutional right against double jeopardy. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, a female child born on March 5, 1979, lived with her mother and stepfather. The defendant is the biological father of the victim. The defendant worked with the victim's stepfather and often drove him to and from work. Sometime between June, 1991, and March, 1992, the defendant was visiting at the home of the victim and had occasion to be alone with her. The defendant fondled the victim's breast, placing his hand both over and under her shirt. He told her that was what boys would do when she got older. The victim did not report the defendant's conduct at that time.

Approximately one to two weeks later, the defendant approached the victim while she was playing outside her home. He asked her to come closer, and when she did, he unzipped his pants, took out his penis and placed the victim's hand on it. He then put his hand inside the victim's pants and inserted his finger in her vagina. Shortly thereafter, he removed his finger and placed his penis against her pubic area. The victim was frightened and did not call out. The defendant asked her to sleep with him and said it would be all right because he could not impregnate her. He also told her she would get into trouble if she told anyone what he had done with her. ³

I

The defendant first claims that his conviction of sexual assault in the first degree should have been vacated because, under the statutes in effect at the time of the alleged sexual assault, sexual assault in the first degree is a lesser included offense of sexual assault in the second degree. He argues that the provisions of § 53a-70 (a)(2) prohibit sexual intercourse with a person under thirteen years of age and that, because, at the time of the alleged sexual assault, the provisions of General Statutes (Rev. to 1991) § 53a-71 (a)(1) prohibited sexual intercourse with a person under sixteen years of age, including a person under thirteen years of age, § 53a-71 (a)(1) clearly included within its provisions the crime envisioned by § 53a- 70 (a)(2). In charging the defendant, the state's attorney charged in the alternative because the victim could have been either twelve or thirteen years of age when the crime occurred. ⁴

The defendant concedes that this claim was not properly preserved and seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). A defendant can prevail on a claim of constitutional error not preserved at trial only by satisfying the four conditions of Golding. ⁵ Id., at 239-40, 567 A.2d 823. We are free, however, to dispose of an unpreserved claim by focusing on the condition that appears most relevant under the circumstances of the case. State v. Jenkins, 40 Conn.App. 601, 604, 672 A.2d 969, cert. denied, 237 Conn. 918, 676 A.2d 1374 (1996).

"There is no fundamental constitutional right to a jury instruction on every lesser included offense; State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980); rather, the right to such an instruction is purely a matter of our common law. A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. Id., [at] 588 ." (Internal quotation marks omitted). State v. Tomasko, 238 Conn. 253, 260, 681 A.2d 922 (1996).

Because there is no fundamental constitutional right to a jury instruction on every lesser included offense, the defendant's claim fails to satisfy the second requirement of Golding. ⁶ We, therefore, do not review this claim.

II

The defendant next claims that the trial court improperly allowed the state's attorney, during jury deliberations, to amend the information regarding the time of the offenses. The defendant claims that his case "is unique and readily distinguishable from the line of cases which find no prejudice resulting from an amendment which alters the alleged time of an offense after commencement of trial."

The facts relevant to this claim are as follows. Prior to trial, the defendant was charged by information with offenses committed between January, 1992, and March, 1992. During the course of the trial, the victim testified that both incidents occurred before her thirteenth birthday, which fell on March 5, 1992. There was, however, conflicting testimony on that point.

During its deliberations, the jury requested to have some testimony reread. Thereafter, the jury informed the court by note that it had found the offenses did not take place within the time frame alleged in the information. The jury requested guidance from the court. Because the defense put forth by the defendant at trial was that the offenses had not occurred, the state requested that the jury be instructed that time was not an essential element. The court suggested that the state amend the information. The state agreed and the trial court overruled the defendant's objection, concluding that the amendment was proper pursuant to Practice Book § 624, now Practice Book (1998 Rev.) § 36-18, and that the defendant was not prejudiced by the amendment.

The state then amended the information to allege that the offenses occurred sometime between June 21, 1991, and March, 1992. The jury resumed its deliberations and subsequently declared itself deadlocked. After receiving further instructions from the court and having more testimony reread, the jury reached its verdict.

Once a trial has started, the prosecutor's broad authority to amend an information is constrained by the provisions of Practice Book § 624, now Practice Book (1998 Rev.) § 36-18. ⁷ State v. Snead, 41 Conn.App. 584, 590, 677 A.2d 446 (1996). "Practice Book § 624 is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend." State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993). It is the defendant's burden to "provide a specific showing of prejudice resulting from the state's delay in providing notice of the charge against which [he] must defend." State v. Mazzetta, 21 Conn.App. 431, 438, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990). The sole limiting requirement under § 624, is that no additional or different offense may be charged in an amendment and no substantive rights of the defendant may be prejudiced by an amendment.

A trial court may, within its discretion, permit the state, after the trial has commenced, to amend the information to conform to the evidence, provided the defendant's due process rights are not prejudiced. State v. Adams, 38 Conn.App. 643, 649, 662 A.2d 1327, cert. denied, 235 Conn. 908, 665 A.2d 902 (1995). The trial court's decision to allow an amendment to the information to conform to the evidence is subject to reversal only for an abuse of discretion. State v. Ramos, 176 Conn. 275, 276, 407 A.2d 952 (1978).

We conclude that the defendant has not shown that the amended information prejudiced him or that the trial court's ruling was an abuse of discretion. The amendment was permissible under § 624, and adequately notified the defendant of the charges against which he was required to defend.

III

The defendant finally claims that to subject him to punishment for both risk of injury to a child and sexual assault in the fourth degree, for the single act of fondling the victim's breast, is a violation of his fifth amendment right against double jeopardy. ⁸

The defendant concedes that in State v. Perruccio, 192 Conn. 154, 162, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S.Ct. 55, 83 L.Ed.2d 6 (1984), our Supreme Court found no double jeopardy bar to the conviction of a defendant at a single trial of both risk of injury to a child and sexual assault in the fourth degree, based on conduct identical to that alleged in this case, i.e., the touching of a female child's breast. The defendant also...