State v. Rothenberg

Citation487 A.2d 545,195 Conn. 253
CourtSupreme Court of Connecticut
Decision Date19 February 1985
PartiesSTATE of Connecticut v. Mitchell ROTHENBERG.

Jacob D. Zeldes, Fairfield, with whom was Robert A. Harris, Milford, for appellant (defendant).

James G. Clark, Deputy Asst. State's Atty., with whom was John M. Massameno, Asst. State's Atty., for the appellee (State).

Before PETERS, C.J., and HEALEY, PARSKEY, DANNEHY and BIELUCH, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is the sufficiency of the evidence to sustain the conviction of the defendant, Mitchell Rothenberg, of sexual assault in the first degree in violation of General Statutes § 53a-70 1 and of unlawful restraint in the first degree in violation of General Statutes § 53a-95. 2 After a trial to the court, the defendant was found guilty on both charges and judgment was rendered accordingly. The defendant appeals from the judgment against him.

The trial court reasonably found the following facts. The defendant and the complainant met at a bar in Southbury during the early morning hours of August 23, 1981. The complainant recognized the defendant as someone she had met there previously. They danced. The defendant asked the complainant to accompany him to a party at a friend's condominium in Woodbury. Somewhat reluctantly, the complainant agreed and drove to the condominium in her own car.

When the couple arrived at the condominium, it appeared to be empty. In fact, however, the two bedrooms, although their doors were closed, were occupied throughout the events that then transpired. The owner of the condominium was in one bedroom and two guests were in the other.

After a brief tour of the condominium, the complainant and the defendant sat on a couch in the living room. They kissed and the defendant gave the fully clothed complainant a back rub. The complainant, at the defendant's request, gave him a back rub while he was clad only in his undershorts.

The complainant then told the defendant that she wanted to leave, but he told her that she could not go. On the pretext of wanting to use the bathroom, the complainant ran to and partially opened the front door of the condominium. The defendant closed the door and forcibly prevented her from leaving by holding her arms. The complainant could not persuade the defendant to let her leave the condominium but was allowed to use the bathroom, where she remained for approximately thirty minutes while she looked for a way to escape or a weapon. During this time, the defendant alternately promised that he would let the complainant leave and threatened to wake up his friend to join the harassment of the complainant if she did not leave the bathroom.

As the complainant emerged from the bathroom, the defendant took her by the arms and pulled her, struggling, to the living room couch. Fearing injury if she were to resist further, the complainant then submitted. The defendant sexually assaulted the complainant several times before finally releasing her.

The unseen occupants of the bedrooms in the condominium remained there throughout the night. One did not hear either the defendant or the complainant at all. The others heard sounds of conversation when the defendant and the complainant first entered the condominium, but soon thereafter fell asleep and heard nothing further.

The defendant does not deny the occurrence of the sexual activity but contends that the state failed to prove that it was anything other than consensual. He raises four issues on appeal: (1) the insufficiency of the evidence to sustain his conviction; (2) the inadmissibility of prejudicial evidence about his character; (3) a right to have the judgment vacated in order to permit additional evidence to be introduced; and (4) a violation of the prohibition against double jeopardy. We find no error.

I

The defendant claims that the evidence adduced at trial to support his conviction was insufficient in two respects. First, the defendant argues that the complainant's testimony that the defendant restrained and sexually assaulted her was unbelievable as a matter of law in light of the totality of the evidence at the trial. Second, the defendant claims that the evidence showed that he lacked the criminal intent necessary to a finding of guilt. We find neither assertion persuasive.

On the first point, the defendant claims that the complainant's account of the events at the condominium is fatally undermined by the evidence given by the occupants of the bedrooms. The complainant testified that the defendant had "slammed" the front door during her escape attempt and had "yelled" at her while she was in the bathroom. The other people in the condominium testified that they had heard nothing beyond normal conversation and had slept throughout the incident. According to the defendant, the juxtaposition of this evidence necessarily validates his contention that the complainant's continued presence in the condominium and participation in the sexual activity was consensual.

The defendant's argument fails to recognize that, in determining the credibility of witnesses, the trier of the facts may properly believe all or part of the testimony of a witness. See State v. Bradley, 134 Conn. 102, 105, 55 A.2d 114 (1947), cert. denied, 333 U.S. 827, 68 S.Ct. 453, 92 L.Ed. 1112 (1948). The contours of the determination of credibility are uniquely shaped by the trial court and are not reviewable on appeal. "The trier of the facts determines with finality the credibility of witnesses and the weight to be accorded their testimony." State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978). The trial court could have believed the complainant's testimony that the defendant prevented her from leaving, and forcibly imposed himself upon her, without giving significant weight to her account of how loudly the defendant spoke or how noisily he closed the door. Alternatively, the court could have disbelieved the testimony of the occupants of the bedrooms. Viewing the evidence, as we must, in the light most favorable to sustaining the judgment of the trial court; see, e.g., State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983); we conclude that the trial court could reasonably have found that the evidence established the defendant's guilt beyond a reasonable doubt. See State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983). 3

The defendant's second claim of insufficiency of the evidence relies upon the trial court's own finding that the complainant's conduct was ill-advised and subject to misconstruction. The trial court did find that the complainant "committed a serious error in judgment when she accompanied the defendant, a young man whom she knew only slightly, to an unknown location, where she really had no idea what might confront her. And once there, she compounded her error in judgment by her voluntary conduct in engaging in intimate physical contact with the defendant, who was almost completely unclothed. In the Court's view, this was a foolhardy act of very poor judgment that was subject to misinterpretation by a young man, such as the defendant, as indicative of a willingness to engage in more explicit sexual conduct. I am satisfied in my own mind that this is essentially what happened. The defendant did misconstrue the complainant's conduct and concluded that she would, in fact, be a willing participant in further sexual activity." According to the defendant, this finding proves that he was mistaken about the complainant's consent and therefore lacked the mental state necessary to commit the charged offenses. 4

This argument would be compelling had the trial court's opinion ended where the defendant's quotation stops. The trial court went on, however, to find that "[w]hen the complainant sought to withdraw from the situation, a situation that was developing beyond her expectations, the defendant was unwilling to permit her to do so. And he thereafter forced his attentions on the complainant and compelled her to engage in sexual intercourse against her will. The defendant failed to recognize that consensual sexual relations are one thing, forced sexual intercourse is something altogether different. The term 'consensual sexual relations' means full consent, and that clearly implies that a party should always be free to decline to go beyond a certain point. This the complainant tried to do. The defendant refused to honor this decision of the complainant and permit her to leave. For this he must be and is found guilty of both offenses as charged in the information." The trial court's finding in its totality makes it clear that the complainant's unambiguous request to leave the condominium disabused the defendant of any misinterpretation of her wishes. The defendant's conduct thereafter was knowingly coercive. A temporary misunderstanding about consent does not give irreversible license to compel sexual intercourse. There was ample evidence to support the trial court's finding and the defendant's conviction.

II

The defendant's second claim of error is that the trial court should have excluded testimony about his prior sexual history, just as the court upheld objections to similar questions asked of the complainant on her cross-examination. Under General Statutes § 54-861, 5 evidence of the sexual history of a sexual assault victim is now admissible only in clearly and narrowly defined circumstances established in a separate hearing. The defendant urges us to hold that the policy represented by that statute is as applicable to defendants as it is to complaining witnesses. In either case, he maintains, the prejudicial effect of evidence of prior sexual conduct, in the absence of special circumstances, far outweighs its probative value.

The defendant questions the admissibility of evidence concerning his...

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