State v. Rocco

• Decision Date: 04 July 2000
• Docket Number: (AC 19344)
• Citation: State v. Rocco, 754 A.2d 196, 58 Conn.App. 585 (Conn. App. 2000)
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JAMES ROCCO

58 Conn. App. 585

754 A.2d 196

STATE OF CONNECTICUT v. JAMES ROCCO

(AC 19344)

Appellate Court of Connecticut.

Argued January 21, 2000.

Officially released July 4, 2000.

Spear, Hennessy and Mihalakos, JS. Michael L. Moscowitz, special public defender, for the appellant (defendant).

Rita M. Shair, assistant state's attorney, with whom were Michael Dearington, state's attorney, and David J. Strollo, senior assistant state's attorney, for the appellee (state).

Opinion

SPEAR, J.

The defendant, James Rocco, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and kidnapping in the second degree in violation of General Statutes § 53a-94.¹ He claims that (1) § 53a-70 (a) (1) is unconstitutionally vague as applied to the facts of this case and (2) the court improperly denied his motion for judgment of acquittal on the charge of kidnapping in the second degree because the evidence of an abduction was insufficient to support his conviction on that charge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim had a romantic relationship with the defendant for five months. On March 25, 1995, the couple traveled to Mystic during the day and at 8 p.m. stopped at a bar in Branford. After the victim told the defendant that she wanted to leave, the defendant became upset and left the victim at the bar. The victim then left the bar and returned to her apartment in New Haven.

Shortly after 9 p.m., the victim went out with a male friend. She returned to her apartment between 1 a.m. and 1:30 a.m., where, unbeknownst to her, the defendant was waiting.² When the victim entered her living room, the defendant slammed the door, picked up the victim by her hair and threw her across the room, over a couch and into an entertainment center. The defendant cursed at the victim, demanded to know where she had been, accused her of "fooling around" and threatened to kill her. He then hit her with a hammer about twenty times on her forehead and temple and kicked her legs, poured soda on her head, ripped off her necklace, bracelet and earrings, and took all of the telephones off their receivers so that the victim could not make any calls. The victim eventually urinated on her carpet because the defendant repeatedly refused to allow her to go to the bathroom.

The defendant then took a knife and cut off the victim's clothes, ripped off her brassiere and left her sitting in the middle of the floor. He then ordered the victim to take a shower because she was "dirty, scummy, crummy." When she told him that she had finished showering, he told her, "You're not done, clean up with this," and he handed her an old enema bag that had been in the garage. The victim refused to use the enema bag, but the defendant filled it with water and forced the tube into her vagina. After the water had completely drained out of the bag, the defendant filled it again with ice cold water and repeated the process. The victim slept in the bathroom for part of the night. When she awoke the next morning, she asked the defendant if she could call her children. He permitted her to do so, but told her to tell them that she had been in a car accident. He also told her that she was not to invite the children to her apartment. Although the victim felt sick and dizzy, the defendant refused to allow her to seek medical attention. He eventually left the apartment that afternoon at 1 p.m., and the victim went to Yale-New Haven Hospital.

The defendant was subsequently arrested and charged with sexual assault in the first degree, kidnapping in the second degree, attempt to commit assault in the first degree, assault in the second degree and tampering with a witness. The defendant was convicted of all of the charges except tampering with a witness. This appeal followed.

I

The defendant claims that his conviction of sexual assault in the first degree under § 53a-70 (a) (1) should be vacated because the statute is unconstitutionally vague as applied to the facts of this case. Specifically, he claims that he was not given fair warning that his conduct was violative of the statute. We disagree.³

Although the defendant's claim was not raised at trial, we will review it pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, our Supreme Court held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) Id.

The first two prongs of Golding are satisfied. First, the record is adequate to review the defendant's claim because it reflects both that he was convicted under § 53a-70 (a) (1) and the basis of his conviction. See State v. Indrisano, 228 Conn. 795, 800, 640 A.2d 986 (1994). Second, a claim that a statute is unconstitutionally vague implicates a defendant's fundamental due process right to fair warning. See State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988). The defendant, however, has failed to meet the third requirement of Golding that a constitutional violation clearly exists and clearly deprived him of a fair trial.

To demonstrate that the statute is unconstitutionally vague as applied to him, the defendant "must... demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the [victim] of arbitrary and discriminatory enforcement." (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 322, 732 A.2d 144 (1999). "As a matter of the due process of law required by our federal and state constitutions, a penal statute must be sufficiently definite to enable a person to know what conduct he [or she] must avoid.... [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law." (Citation omitted; internal quotation marks omitted.) State v. Ehlers, 252 Conn. 579, 584, 750 A.2d 1079 (2000).

We conclude that the defendant had fair warning that § 53a-70 (a) (1) prohibited his conduct.⁴ Section 53a-70 (a) provides in relevant part: "A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person...." General Statutes § 53a-65 (2) defines "sexual intercourse" as "vaginal intercourse ... between persons.... Penetration may be committed by an object manipulated by the actor into the genital ... opening of the victim's body."

The defendant contends that he was not given fair warning that his conduct violated the statute because "the insertion of the end of the hose from the enema bag was for the purpose of cleaning the victim" and was not sexual in nature. Whatever purpose motivated the defendant's conduct, § 53a-70 (a) (1) makes it clear to a person of common intelligence that forcible penetration of the vagina with an object is prohibited. See State v. Faria, 47 Conn. App. 159, 168, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998) ("[t]he intent required for sexual assault is not sexual gratification but the intent to use force"). Accordingly, the defendant should have known that forcing a tube into the victim's vagina was violative of the statute.

II

The defendant next...