State v. Ritrovato
| Decision Date | 19 October 2004 |
| Docket Number | No. 23189.,23189. |
| Citation | 858 A.2d 296,85 Conn.App. 575 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Leo F. RITROVATO. |
G. Douglas Nash, special public defender, with whom, on the brief, were Christopher Duby and Joseph Danielowski, certified legal interns, for the appellant (defendant).
Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, and David J. Smith, assistant state's attorney, for the appellee (state).
BISHOP, WEST and PETERS, Js.
The defendant, Leo F. Ritrovato, was charged in a nine count information stemming from two separate incidents involving a fifteen year old girl. As to the first incident, which occurred on August 2, 2000, the defendant was convicted of sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1) (count two), sale of a hallucinogenic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278(b) (count four), sale of a controlled substance to a person younger than eighteen years of age in violation of General Statutes § 21a-278a (count five), and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21(1) (count six) and (2) (count three).1 He was acquitted of all charges related to an incident alleged to have occurred on August 13, 2000.2
The defendant appeals from the judgment of conviction, claiming that (1) the evidence was insufficient to support his conviction on counts four, five and six concerning his having given a hallucinogenic substance to the fifteen year old victim, T,3 (2) the prosecutor violated the defendant's federal due process rights4 to a fair trial as a result of misconduct in closing argument and in the questioning of a witness, (3) the court improperly precluded impeachment evidence in violation of the defendant's sixth amendment right to confront witnesses and to present a defense,5 and (4) the court improperly instructed the jury that to find the defendant guilty of risk of injury to a child, it had to find that his conduct was "likely to impair the child's health or morals" and that the term "likely" was to be understood as meaning that in all "probability or possibility" the defendant's conduct had impaired the victim's health or morals.6 We affirm the judgment of the trial court.
The record reveals the following procedural facts and evidence relevant to our discussion of the issues on appeal. In July, 2000, T moved from New Mexico to Connecticut to live with her cousin, M. Approximately two weeks later, T began baby-sitting for the defendant's three daughters at the defendant's home. On the morning of August 2, 2000, the defendant arrived at M's home to pick up T and to bring her to his home to babysit. At trial, T testified that the defendant told her that he was going to get some "acid." T then asked if she could have some, stating that she had "never done acid before." According to T, after she and the defendant arrived at the defendant's house, he told her that he had twelve "hits" of "acid" on a strip of thin paper. T also testified that the defendant asked her if she had ever had sex before because "acid made him horny, and it made sex more better, more intensified." The defendant then "cut up the acid" by slicing the paper into twelve strips and offered T one "hit." T asked the defendant to put it on her tongue because she "didn't know what [she] was doing." T ingested one piece of the paper that the defendant placed on her tongue. Approximately thirty minutes to one hour later, T began to see "unusual things" such as a cat singing to her and a rug waving to her. T testified that the effects of the substance she ingested lasted for several hours. In addition, T testified that the defendant told her that the paper he placed in her mouth was LSD7 and that he uses the terms "acid" and LSD interchangeably. She also stated that the defendant told her that he would give her the LSD as payment for the hours she watched his children.
Later in the evening of August 2, 2000, the defendant and his wife, Janine Ritrovato, went to a movie, leaving T to watch the children. The couple returned approximately four hours later and watched a movie with T. About halfway through the movie, Janine Ritrovato went to bed, leaving the defendant and T to finish watching the movie. The defendant then asked T to go for a walk. While walking, the defendant pulled T close to him. T objected to that and walked ahead of the defendant. The defendant then grabbed T from behind and led her to a secluded spot where they engaged in vaginal intercourse. Following the incident, T and the defendant returned to the defendant's home. There, she wrote on her calendar, "My day! 1st Leo." T testified that this meant that it was her first time having sexual intercourse.
Not long after that incident, T was forced to move out of M's leased home, as the landlord had expressed concerns about T's occupancy. The defendant and his wife let T stay with them until the problem was resolved. T testified that on August 13, 2000, the defendant again forced her to have vaginal intercourse with him. The following day, T informed her mother and M that she wanted to return to New Mexico. When asked why, T told her mother that she had been "touched in a way that [she] didn't like." Later, on August 18, 2000, T told M about both incidents. After hearing T's story, M took her to the police station where T gave a statement. Eventually, T also went to Planned Parenthood of Connecticut, Inc., for a physical examination. There she spoke to counselor Janet St. Jean about the incidents.
After the defendant was arrested and taken into custody at his home on October 6, 2000, he provided Officer Mark Pilcher of the Norwich police department with a written statement in which he stated that he had obtained LSD and given it to T on different occasions. According to the defendant's statement, which was admitted into evidence during trial, T asked him to get LSD, and he received M's permission to give it to her. The defendant's statement also contained a denial of any sexual contact with T.
Trial began on February 26, 2002. On March 13, 2002, the jury found the defendant guilty of sexual assault in the second degree, two counts of risk of injury to a child, sale of a hallucinogenic substance by a person who is not drug-dependent and sale of a controlled substance to a person younger than eighteen years of age. All of those offenses stemmed from the events of August 2, 2000. The defendant was sentenced to a term of twenty-two years imprisonment, execution suspended after seventeen years, and ten years of probation. On appeal, the defendant advances four arguments, which we address in turn. Additional facts will be recited as appropriate to our resolution of the issues on appeal.
The defendant's initial contention is that the state's evidence at trial was insufficient to warrant a guilty verdict on counts four, five and six.8 Specifically, he argues that the state failed to prove beyond a reasonable doubt that the substance he gave T was, in fact, LSD, a hallucinogenic substance. The defendant claims that the only evidence offered to prove that the substance was LSD was his representation as such, T's description of the medium by which she ingested the substance and the effect that it had on her. We disagree.
In reviewing the defendant's claim, the principles that guide our inquiry are not novel. We construe the evidence, direct and circumstantial, in the light most favorable to sustaining the verdict and decide whether that evidence, including the inferences reasonably drawn therefrom, enabled a rational jury to conclude that the cumulative force of the evidence established the defendant's guilt beyond a reasonable doubt. See State v. Nunes, 260 Conn. 649, 659, 800 A.2d 1160 (2002). "Each essential element of the crime charged must be established by such proof... and although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture." (Internal quotation marks omitted.) State v. Cosgrove, 181 Conn. 562, 585, 436 A.2d 33 (1980).
With those familiar principles in mind, we turn to the merits of the defendant's claim. Because the defendant challenges his conviction of three separate offenses, each of which required the state to prove different essential elements, we split the defendant's claim into separate arguments, examining each sequentially.
In count four of the information, the state charged the defendant with the crime of sale of a hallucinogenic substance by a person who is not drug-dependent, namely, LSD, in violation of § 21a-278 (b), which provides in relevant part: "Any person who ... sells ... any narcotic substance, hallucinogenic substance9 other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . ." Thus, in the present case, the state had to prove beyond a reasonable doubt that the substance the defendant gave to T actually was a hallucinogenic substance, namely, LSD. Cf. State v. Gayle, 64 Conn.App. 596, 601, 781 A.2d 383 ( , cert. denied, ...
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