State v. Romero

• Citation: 849 A.2d 760,269 Conn. 481
• Decision Date: 08 June 2004
• Docket Number: (SC 17082)
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. ELICIO ROMERO.

269 Conn. 481

849 A.2d 760

STATE OF CONNECTICUT v. ELICIO ROMERO.

(SC 17082)

Supreme Court of Connecticut.

Argued February 19, 2004.

Officially released June 8, 2004.

Borden, Norcott, Katz, Palmer and Zarella, Js.

Martin Zeldis, senior assistant public defender, for the appellant (defendant).

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

Opinion

NORCOTT, J.

The defendant, Elicio Romero, appeals¹ from the trial court's judgment of conviction, rendered after a jury trial, of one court of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2).² On appeal, the defendant claims that the trial court improperly: (1) instructed the jury that, in order to convict the defendant of risk of injury to a child, it had to find that the defendant's conduct was "`likely to impair the health or morals'" of the victim, and that the term "likely" was to be understood as meaning that it was "`possible'" that the defendant's conduct had impaired the victim's health or morals; (2) admitted evidence of certain prior uncharged sexual misconduct by the defendant; and (3) instructed the jury that the state had to demonstrate that the crimes had been committed prior to the date of the information within the relevant statute of limitations, but not necessarily on the dates as alleged in the information. We affirm the judgment of the trial court.

The state had charged the defendant with three counts of sexual assault in the first degree, one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) and 53a-70 (a) (2), two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2), and three counts of risk of injury to a child. During the trial, all of the counts, except for one count of sexual assault in the first degree and two counts of risk of injury to a child, either were dismissed or withdrawn. Following jury deliberations, the defendant was convicted on the three remaining counts, and the trial court rendered judgment thereon. The defendant then was sentenced to a term of twenty years imprisonment, execution suspended after thirteen years, with fifteen years probation, and mandatory lifetime sex offender registration. This appeal followed.

The jury reasonably could have found the following facts. At the time of trial in May, 2002, D, the victim, was a ten year old boy living in Waterbury with his mother, E.³ From October, 1999, until March, 2000, the time period of the defendant's sexual abuse of D, he occasionally had traveled to Bridgeport in order to visit the defendant, believing him to be his grandfather.⁴ While visiting the defendant's home, there were occasions on which D was left alone with the defendant. On three such instances during the relevant time period, the defendant had led D into the defendant's bedroom and, in D's words, had done "something that [D] didn't like."

On these occasions, the defendant had locked his bedroom door and had told D that if he loved the defendant, he would not reveal what transpired in the bedroom because if D did tell someone, the defendant would go to jail. The defendant then had removed D's pants and underwear, as well as his own, and had applied a product that the defendant used in his hair to his "private part." Subsequently, while both were on the defendant's bed and the defendant was behind D, the defendant had inserted his private part into D's "behind" and had begun "moving."

During these encounters, the defendant also had touched D's private part and had forced D to touch the defendant's private part. Beyond this physical abuse, while D was alone with the defendant, the defendant also had played "nasty movies" on the television in his bedroom, repeating his instructions to remain silent regarding the activities. Ultimately, in March, 2000, D revealed the defendant's sexual abuse to his babysitter, L, and to E.

At trial, the defendant denied abusing D and advanced a theory of defense that E had fabricated the allegations in retaliation for the defendant's previous threats to inform the department of children and families of E's physical abuse and neglect of D. In that regard, Carmen Rivera⁵ and the defendant testified that the defendant had confronted E about her treatment of D, expressing his concerns over her degree of discipline, and that E had responded by threatening that, if the defendant went to the authorities, E would ensure that the defendant also faced jail time. It was after this confrontation, the defendant testified, that the allegations of his sexual abuse of D had arisen. Following its deliberations, the jury convicted the defendant of one count of sexual assault in the first degree and two counts of risk of injury to a child.⁶

I

The defendant first claims that certain of the trial court's instructions to the jury improperly defined the term "likely" in § 53-21 (2) as meaning "possible or probable," thereby diluting the state's burden of proof as to whether the defendant's conduct was "likely to impair" D's health or morals and violating the defendant's constitutional right to due process of law.⁷ (Emphasis added.) In the defendant's view, the commonly understood meaning of the term "likely" is probable, and the trial court's definition of "possible" improperly lessened its meaning for the jury.

The state, to the contrary, first contends that the trial court's instruction as to the meaning of the term "likely," which apparently was derived from the model jury instructions found in J. Pellegrino & R. Fracasse, Connecticut Selected Jury Instructions: Criminal (3d Ed. 2001) § 7.9 B, pp. 355-57, was proper. Alternatively, the state claims that, even if the instruction was improper, it was harmless because, in considering the entire charge, it is not reasonably possible that the jury was misled by the impropriety. We conclude that the trial court improperly instructed the jury that the term "likely" in § 53-21 (2) was to be understood as having a meaning of "possible." We agree with the state, however, that there is no reasonable possibility that this instructional impropriety, when evaluated in light of the entire charge, misled the jury.

Preliminarily, we note that the defendant neither filed a request to charge nor objected to the jury instructions that ultimately were given by the trial court. "It is well established that [t]his court is not bound to review claims of error in jury instructions if the party raising the claim neither submitted a written request to charge nor excepted to the charge given by the trial court." (Internal quotation marks omitted.) State v. Davis, 261 Conn. 553, 562, 804 A.2d 781 (2002). Accordingly, the defendant now seeks to prevail on this claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁸ The defendant's claim is reviewable⁹ because he has satisfied the first two prongs of Golding in that the record is adequate for our review and the defendant's claim that the trial court improperly instructed the jury as to an element of a charged offense is of constitutional dimension. See State v. DeJesus, 260 Conn. 466, 472-73, 797 A.2d 1101 (2002). We conclude, however, that the defendant's claim fails under the third prong of Golding.

We set forth the standard that governs our analysis of the defendant's claim. "The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established ...." (Internal quotation marks omitted.) State v. Davis, supra, 261 Conn. 563. "When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety ... and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party ...." (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999). In this inquiry we focus on the "substance of the charge rather than the form of what was said" not only in light of the entire charge, but also within the context of the entire trial. (Internal quotation marks omitted.) State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). Moreover, as to unpreserved claims of constitutional error in jury instructions, we have stated that "under the third prong of Golding, [a] defendant may prevail ... only if ... it is reasonably possible that the jury was misled ...." (Internal quotation marks omitted.) State v. Schiappa, 248 Conn. 132, 176-77, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).

In its final charge, the trial court stated: "Ladies and gentlemen, the state does not have to prove that the defendant actually did impair the health or morals of the child. Rather, the state must show that the defendant's behavior was likely to impair the health or morals of the child. Likely means in all probability or possibility. Thus, the state must show that it was possible or probable that the sexual and indecent behavior of the defendant would injure or weaken the child's health or morals. There is no requirement that the state prove actual harm to the child's health or morals." (Emphasis added.) The trial court provided this instruction to the jury twice—once for each risk of injury count.

The record does not disclose the source for this definition of the term "likely" by the trial court.¹⁰ The parties now agree, however, that the trial court based this portion of its charge on the text of the model jury instructions contained in J. Pellegrino &...