State v. Reed

• Decision Date: 05 October 1999
• Docket Number: (AC 17543)
• Citation: 55 Conn. App. 170,740 A.2d 383
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JERMYN REED

55 Conn. App. 170

740 A.2d 383

STATE OF CONNECTICUT v. JERMYN REED

(AC 17543)

Appellate Court of Connecticut.

Argued June 7, 1999.

Officially released October 5, 1999.

Landau, Schaller and Sullivan, Js. James B. Streeto, special public defender, for the appellant (defendant).

Frederick W. Fawcett, assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Cornelius P. Kelly, assistant state's attorney, for the appellee (state).

Opinion

SULLIVAN, J.

The defendant, Jermyn Reed, appeals from the judgment of guilty, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2)¹ and three counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21.² The defendant claims that the trial court improperly (1) denied his motions for judgment of acquittal because there was insufficient evidence to support his convictions of sexual assault in the first degree beyond a reasonable doubt, (2) exercised jurisdiction with respect to the sexual assault charges because the information was defective, (3) expanded and amended the information and (4) instructed the jury on reasonable doubt and the presumption of innocence. We affirm the trial court's judgment.

The jury reasonably could have found the following facts. During July and August, 1995, R, who lived in New York, visited his cousins, L and J, at their home in Connecticut. L, the son of the defendant's sister, was seven years old and J, her daughter, was nine. R, the son of the defendant's cousin, also was seven years old. The defendant often visited the home and babysat for the victims. The defendant came to the attic room where R and L slept and, as R testified, "sucked our Tilly [penises]," "licked our butts" and "[stuck] his Tilly [penis] in my, in our butts." As L testified, the defendant "[sucked] on [L's] private," "[p]ut his private in my butt" and "[told] me to suck [R's] private." The sexual assaults continued after R returned to New York. The defendant warned L that if he told anyone about the assaults "he was going to give [L] a whopping." The defendant also "tried to put his private into [J's] bottom and he licked [J's] private." The victims told their parents about the incidents. The defendant admitted to his sister that he had sexually assaulted the children.

I

The defendant first claims that there was insufficient evidence to find him guilty of sexual assault in the first degree. He argues that the state failed to prove an essential element of the crime, namely, that he was more than two years older than the victims, because there was no direct evidence of his birth date. We disagree.

"Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... State v. Radzvilowicz, 47 Conn. App. 1, 16, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

"The evidence must be construed in a light most favorable to sustaining the jury's verdict. State v. Carter, [196 Conn. 36, 44, 490 A.2d 1000 (1985)]. It is within the province of the jury to draw reasonable and logical inferences from the facts proven. Id.; State v. Williams, 169 Conn. 322, 336, 363 A.2d 72 (1975). The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. State v. Williams, 202 Conn. 349, 355, 521 A.2d 150 (1987); State v. Carter, supra, 44-45; State v. Gabriel, 192 Conn. 405, 425, 473 A.2d 300 (1984) .... Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989). State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. State v. Perez, supra, 227.... [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence ... established guilt beyond a reasonable doubt.... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992)." (Internal quotation marks omitted.) State v. Rozmyslowicz, 52 Conn. App. 149, 152-53, 726 A.2d 142 (1999).

The ages of the victims at the time of the assaults in 1995 were seven, seven and nine. The state, therefore, had to prove that the defendant was at least twelve years old at the time.³ The defendant's sister testified that in 1994 the defendant was enrolled in Miles College in Alabama. The defendant's mother testified that in 1994 he was employed by the state of Connecticut at its emissions testing station in Stratford. Viewing this evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have determined beyond a reasonable doubt that the defendant was at least twelve years old. Indeed, this evidence would support a finding that he was substantially older than twelve.

II

The defendant next argues that the trial court lacked jurisdiction because the information failed to charge the defendant properly with sexual assault in the first degree. We disagree. Although the defendant raises this issue for the first time on appeal, a jurisdictional challenge based on a defective information nonetheless is reviewable. Practice Book § 41-5;⁴State v. McMurray, 217 Conn. 243, 249, 585 A.2d 677 (1991).

Additional facts are necessary to our resolution of this claim. The state initially charged the defendant in 1996 in a short form information with violations of "Sec. 53a-70." Before the defendant filed a motion for a bill of particulars, however, the state on April 9, 1996, filed a long form information, charging that the defendant "engaged in sexual intercourse with another person and such other person was under thirteen (13) years of age, in violation of section 53a-70 (a) (2) of the Connecticut General Statutes."

"When reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state. See Hagner v. United States, 285 U.S. 427, 433, 52 S. Ct. 417, 76 L. Ed. 861 (1932); United States v. Hooker, 841 F.2d 1225, 1228-29 (4th Cir. 1988); United States v. Previte, 648 F.2d 73, 80 (1st Cir. 1981); United States v. Fistel, 460 F.2d 157, 161 (2d Cir. 1972). Under the applicable standard of review, a conviction based upon a challenged information is valid unless the information is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had. United States v. Fistel, supra, 161, quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S. Ct. 1591, 16 L. Ed. 2d 675 (1966)." (Internal quotation marks omitted.) State v. McMurray, supra, 217 Conn. 250.

"When the state's pleadings have `informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.' State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979). We have held that `[u]nder our practice, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense.' State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); State v. Sumner, supra, 167; State v. Davis, 141 Conn. 319, 320-21, 106 A.2d 159 (1954); Practice Book §§ 618, 830-833 [now §§ 36-13, 41-20 through 41-22]. While a more detailed information might have been salutary, there was no constitutional infirmity in the state's practice here, nor in the requirement that the defendant request a more particularized allegation if he desires one. State v. Davis, supra, 321; see also State v. Brown, 163 Conn. 52, 61, 301 A.2d 547 (1972)." State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984).

Neither information in this case specifically articulated each of the elements required to prove sexual assault in the first degree. The long form information, however, provided the defendant with the exact section and subsection of the statute under which he was charged. The information also undisputedly states the time and place that the alleged events occurred. That information was filed almost one year before trial. We conclude that a reasonable construction of the information shows...