State v. Rumore
| Decision Date | 22 October 1992 |
| Docket Number | No. 9794,9794 |
| Citation | 613 A.2d 1328,28 Conn.App. 402 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Ronald RUMORE. |
Marjorie Allen Dauster, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Edward Narus, Asst. State's Atty., for appellee (state).
Before DUPONT, C.J., and EDWARD Y. O'CONNELL and FOTI, JJ.
The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101(a)(2), 1 assault of a victim sixty or older in the first degree in violation of §§ 53a-59a(a) 2 and 53a-59(a)(3) 3 and robbery in the first degree in violation of General Statutes § 53a-134(a)(1). 4 The defendant The defendant claims that the trial court improperly (1) admitted evidence under the constancy of accusation exception to the hearsay evidence rule, (2) admitted exhibits into evidence despite a defective chain of custody, and (3) marshaled the evidence against the defendant. The defendant also claims that the evidence was insufficient to prove the element of serious physical injury beyond a reasonable doubt as required by General Statutes § 53a-134(a)(1). We affirm the judgment of the trial court.
was found not guilty of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70(a) 5 and 53a-49(a)(2) 6 and of sexual assault in the third degree in violation of General Statutes § 53a-72(a)(1)(A). 7
The jury could reasonably have found the following facts. At approximately 7:45 p.m. on January 4, 1990, the doorbell rang at the Enfield home of the seventy year old victim. An exterior light over the door afforded the victim a clear look at the side of the defendant's face from a distance of eighteen to twenty-four inches. When the defendant failed to give a satisfactory reason for his presence, the victim told him she was going to call the police. She dialed the emergency 911 number, but before she could determine whether the phone connection had been completed, the defendant broke down the door and lunged at her. He punched the left side of her face, then grabbed her by the ankles, thereby picking her up off the ground. She fell backward and lost consciousness. Upon regaining consciousness, she could not immediately stand because her slacks and underwear were below her hips. Her sweatshirt and lower torso were wet and she was bleeding from a cut on the back of her head.
At this point, the police, who had heard screaming over the 911 telephone connection, arrived. They administered first aid and arranged for transportation to Saint Francis Hospital in Hartford. Before leaving for the hospital, it was discovered that the victim's wallet, containing $30 and credit cards, was missing.
At the hospital, the victim discovered that the nipple of her left breast was partially torn. The hospital record contains the following entry: The hospital records were introduced as a defense exhibit pursuant to General Statutes § 4-104.
Meanwhile, at the victim's house, the police continued their investigation with the assistance of a state police tracking dog. The dog's handler testified at trial concerning the route of a person whose footprints were found in the snow outside the victim's house. Although the defendant's residence was about 500 yards from the victim's house, the dog did not track in that direction--in fact, it followed a trail leading in the opposite direction. The police made plaster casts of the footprints. Three weeks later the casts were sent to the state forensic laboratory for comparison with At the hospital, the victim told her daughter that she thought the defendant was her attacker. The daughter relayed this information by telephone to the Enfield police. Although at least two attempts at a photographic identification were inconclusive, a face-to-face show-up produced a positive identification of the defendant, who was then arrested.
boots that had been seized from the defendant's house pursuant to a search warrant.
At trial, the defendant relied on an alibi defense that he was at home at the time of the incident.
Additional facts pertaining to individual issues are included in the following discussion.
The defendant first complains that the trial court improperly allowed testimony from both the victim's daughter and a detective under the constancy of accusation exception to the hearsay rule. The defendant contends that the exception was erroneously applied because the victim did not expressly testify that she had been sexually assaulted. The victim's daughter testified, inter alia, that her mother had named the defendant as her attacker. The police detective testified, inter alia, that the victim had told him that upon regaining consciousness she had found that her underwear had been pulled down around her hips and that a portion of her torso and clothing were wet.
Under our constancy of accusation rule, a witness in a sexual assault case is permitted to testify concerning the victim's prior consistent statements about the assault and the identity of the attacker, provided the victim has first testified about the incident and has testified as to those persons whom she has told about the incident. State v. Rodgers, 207 Conn. 646, 649-50, 542 A.2d 1136 (1988). In the present case, the victim testified concerning everything that she knew about the incident and identified her daughter and the detective as the persons to whom she had reported these facts. The defendant argues, however, that the victim failed to testify from her own knowledge that she had been sexually assaulted and, therefore, the constancy of accusation exception to the hearsay evidence rule does not apply. The cause of the victim's lack of complete knowledge was the fact that she lost consciousness shortly after the assault began. A similar situation occurred in State v. Rodgers, supra, where the victim was rendered unconscious shortly after the attack commenced. The Rodgers court ruled that as long as a reasonable inference could be drawn that a sexual assault had occurred, the constancy of accusation exception applied because holding otherwise "would confer a benefit on defendants who render their victims unconscious during sexual assaults, and ... thereby deprive the state of the ability to present constancy of accusation evidence as to the circumstances surrounding an alleged sexual assault." Id., at 650, 542 A.2d 1136.
In the present case, the victim testified that early in the attack she fell to the floor, struck her head and lost consciousness. Upon regaining consciousness, her pants and underwear were down below her hips, her sweatshirt was wet and the nipple of her left breast was bleeding where it was torn. The trial court could reasonably have inferred that attempted sexual assault in the first degree or sexual assault in the third degree had taken place.
The defendant next argues that the victim's statements in the hospital report, that she did not believe that she had been sexually assaulted, and that a wire in her brassiere had caused the torn nipple, mandate reversal. We do not agree. The hospital records were not before the court at the time of its ruling on the constancy exception. Further, upon admission of the records into evidence, the defendant did not move to strike the constancy testimony on this basis. Moreover, the victim's hospital statement is not inconsistent with the crimes charged. The fourth count charged the defendant with attempted, not completed, sexual assault in the first degree. A denial that she, in fact, had been sexually The defendant also argues that this misapplication of the constancy of accusation rule allowed the state to put facts before the jury that it would not have otherwise heard. The only fact not included in the victim's testimony was the detective's statement that the victim's torso was wet. In view of the fact that the victim had testified that her sweatshirt was wet, however, we cannot conclude that the additional fact that her torso was also wet has material significance.
assaulted is therefore consistent with the charge of attempted sexual assault in the first degree. Finally, although the fifth count charged the defendant with sexual assault in the third degree, it is reasonable to assume that, as a person lacking knowledge of our criminal code, the victim did not know that the touching of intimate parts could constitute sexual assault in the third degree. 8
Nor is the defendant's acquittal of the sexual assault counts significant. They were properly before the trial court when the evidentiary ruling on constancy of accusation was made. The trial court cannot be expected to forecast the outcome of the case. The trial court properly admitted the testimony of the victim's daughter and the detective into evidence under the constancy of accusation rule.
STATE'S EXHIBITS
CHAIN OF CUSTODY
The defendant next contends that the trial court improperly admitted the plaster casts of boot prints into evidence over the defendant's objection that a proper chain of custody had not been established. A detective testified that, on the night of the crime, he made plaster casts of boot prints that were found in the snow outside the victim's window. The detective wrapped the casts in newspaper and placed them in the evidence locker. About three weeks later, pursuant to a search warrant, a pair of...
To continue reading
Request your trial
-
State v. Lee
...v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991); State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989); State v. Rumore, 28 Conn.App. 402, 411, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). "In marshaling the evidence, the court must be careful not to imply an......
-
State v. Taylor
...there is a reasonable probability that the item has not been changed in any important respect." (Citation omitted.) State v. Rumore, 28 Conn.App. 402, 410, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992); see also State v. Greene, supra, 209 Conn. at 479, 551 A.2d No claim ......
-
State v. Ovechka
...caused by strangling were "`[s]erious physical injur[ies]'" supporting conviction of assault in first degree); State v. Rumore, 28 Conn.App. 402, 413-15, 613 A.2d 1328 (temporary loss of consciousness and laceration requiring surgical stapling satisfied "serious physical injury" element of ......
-
State v. Aponte, 15002
...in that eye, albeit temporarily. The statute does not require that the impairment of the organ be permanent. See State v. Rumore, 28 Conn.App. 402, 415, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). We cannot say as a matter of law that the jury could not reasonably have......