State v. Orhan

• Decision Date: 16 March 1999
• Docket Number: (AC 17003)
• Citation: 52 Conn. App. 231,726 A.2d 629
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. CELAL ORHAN

52 Conn. App. 231

726 A.2d 629

STATE OF CONNECTICUT v. CELAL ORHAN

(AC 17003)

Appellate Court of Connecticut.

Argued September 21, 1998.

Officially released March 16, 1999.

Lavery, Hennessy and Sullivan, JS. Richard T. Meehan, Jr., with whom, on the brief, were Richard T. Meehan, Sr., and Edward J. Gavin, for the appellant (defendant).

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and John C. Smriga, supervisory assistant state's attorney, for the appellee (state).

Opinion

LAVERY, J.

The defendant, Celal Orhan, appeals from the judgment of conviction, following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2)¹ and risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21.² We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On a Friday evening in July, 1995, the victim, who was then nine years old, and her older sister, S, spent the night with their younger cousin, M, at his home to celebrate his birthday. M lived in Bridgeport with his mother and the defendant in a two bedroom apartment. The children slept in M's bedroom. S slept on a mattress, the victim slept on a box spring, and M slept in a sleeping bag on the floor.

The victim, who was wearing a T-shirt and underwear, was sleeping on her stomach when the defendant came into the room, leaned over the sleeping bag and touched the victim's buttocks by putting his hand inside her underwear. He then moved his hand between the victim's legs, touched her vagina and put his finger into her vagina, at which time the victim moved. When the victim moved, the defendant removed his hand and left the room.

The next morning, the victim told S what the defendant had done to her during the night. During the day, the victim and S attempted to reach their mother by telephone. When the victim was finally able to talk to her mother, she insisted that her mother come and get her and take her home despite the fact that the victim and S had originally planned to spend another night at M's home. After she picked them up, the girls' mother asked them why they did not want to spend another night at M's house. At that time, the victim told her mother what the defendant had done to her. The victim's mother contacted the Bridgeport police department later that night and took the victim to the police station on Sunday.

Three days after the defendant learned of the victim's accusations, he fled to Florida where he remained until he was arrested on charges stemming from the incident. Following his conviction, the defendant appealed, claiming that the trial court improperly (1) denied his motion for judgment of acquittal on the count of sexual assault in the first degree because there was insufficient evidence of penetration to support a guilty verdict beyond a reasonable doubt, (2) ruled on evidentiary matters by (a) permitting constancy of accusation testimony in violation of State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996), (b) restricting the defendant's cross-examination of the victim and (c) refusing to permit the defendant to testify as to the hearsay statement of his brother-in-law and (3) instructed the jury on the constancy of accusation testimony. We disagree.

I

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal on the count of sexual assault in the first degree, specifically that there was insufficient evidence of penetration to support the allegation of sexual intercourse. The defendant claims that, because the victim testified on direct examination but not on cross-examination that the defendant put his finger into her vagina,³ there was a dispute as to whether there was penetration sufficient to constitute sexual intercourse. We are not persuaded. "When reviewing sufficiency of the evidence claims, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993); State v. Salz, supra, 31." (Internal quotation marks omitted.) State v. Watson, 50 Conn. App. 591, 604, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998).

"`[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.' State v. Sivri, 231 Conn. 115, [132] 646 A.2d 169 (1994). `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 jury's verdict of guilty.' Id., 134." State v. Rogers, 50 Conn. App. 467, 473, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998).

"A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age...." General Statutes § 53-70 (a). "`Sexual intercourse' means vaginal intercourse.... Penetration, however slight, is sufficient to complete vaginal intercourse .... Penetration may be committed by an object manipulated by the actor into the genital ... opening of the victim's body." General Statutes § 53a-65 (2). The defendant concedes that digital penetration, however slight, is sufficient to constitute sexual intercourse. See State v. Hermann, 38 Conn. App. 56, 60, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995); State v. Grant, 33 Conn. App. 133, 141, 634 A.2d 1181 (1993). On direct examination, the victim testified that the defendant put his finger into her vagina. The defendant argues that because the victim did not repeat those words on cross-examination, there was insufficient evidence from which the jury could conclude that there was penetration. The defendant's argument is not persuasive. Defense counsel controlled the scope of his cross-examination, which he limited, in part, to the defendant's touching the victim's buttocks and vagina and to the length of time of such touching. Although he was free to ask the victim about any part of her direct testimony, defense counsel did not question the victim about the defendant's having inserted his finger into her vagina. The defendant cannot now complain, therefore, that because the victim did not repeat her testimony as to the full extent of his unlawful touching that there was insufficient evidence by which the jury could have found the defendant guilty beyond a reasonable doubt.

The jurors are the arbiters of fact, and it is their duty to pass upon the credibility of a witness, even when there is inconsistent testimony. See New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 99, 709 A.2d 14 (1998). Here, the testimony was not inconsistent. The victim merely did not testify more than once that the defendant placed his finger into her vagina. Our laws do not require her to do so. See State v. Dabkowski, 199 Conn. 193, 199-203, 506 A.2d 118 (1986). If the defendant wanted to discredit the victim's testimony, he was free to question her about the specifics of her prior testimony on cross-examination. See id., 202. He made the tactical decision not to do so. The trial court, therefore, properly denied the defendant's motion for a judgment of acquittal.

II

Next, the defendant claims that the trial court improperly ruled on evidentiary matters because it (1) permitted the victim's mother to testify as a constancy of accusation witness and permitted S and the victim's mother to testify as to the substance of the victim's complaints in violation of State v. Troupe, supra, 237 Conn. 284, (2) refused to permit the defendant to testify as to certain hearsay statements made by his brotherin-law and (3) restricted the defendant's cross-examination of the victim. We do not agree.

"Our standard of review regarding challenges to a trial court's evidentiary rulings is that these rulings will be overturned on appeal only where there is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) State v. Cole, 50 Conn. App. 312, 330-31, 718 A.2d 457, cert. granted on other grounds, 247 Conn. 937, 722 A.2d 1217 (1998). "It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court's rulings will not be disturbed on appellate review absent abuse of that discretion.... Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court's ruling." (Internal quotation marks omitted.) Wright v. Hutt, 50 Conn. App. 439, 445, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998). "Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 247 Conn. 24, 37, 718 A.2d 425 (1998). "It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional...