State v. Scott

• Decision Date: 13 July 2004
• Docket Number: (SC 16812).
• Citation: State v. Scott, 270 Conn. 92, 851 A.2d 291 (Conn. 2004)
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. ERIC SCOTT.

270 Conn. 92

851 A.2d 291

STATE OF CONNECTICUT v. ERIC SCOTT.

(SC 16812).

Supreme Court of Connecticut.

Argued March 23, 2004.

Officially released July 13, 2004.

Sullivan, C. J., and Borden, Katz, Palmer and Vertefeuille, Js.

Lisa J. Steele, special public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, was David I. Cohen, state's attorney, for the appellee (state).

Opinion

BORDEN, J.

The defendant, Eric Scott, appeals¹ from the judgment of conviction, rendered after a jury trial, of one count of kidnapping in the first degree in violation of General Statutes (Rev. to 1981) § 53a-92 (a) (2) (A), one count of assault in the second degree in violation of General Statutes (Rev. to 1981) § 53a-60(a), and three counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1981) § 53a-70 (a). He claims that: (1) his conviction on two counts of sexual assault, arising from his vaginal penetration of the victim twice within an interval of minutes, violated his double jeopardy rights; and (2) the trial court improperly instructed the jury on flight as consciousness of guilt. We affirm the judgment of conviction.

The defendant was charged with one count of kidnapping in the first degree, two counts of assault in the first degree, and three counts of sexual assault in the first degree. The jury found him guilty on the kidnapping count, on one count of assault, and on the three counts of sexual assault. The trial court rendered judgment in accordance with the jury's verdict. This appeal followed.

The jury reasonably could have found the following facts. The defendant, while on leave from active military duty with the United States Army in Germany from December 10 through December 31, 1982, was staying with his parents at their home on Fairview Avenue, in Norwalk. While in Norwalk, the defendant had the use of a 1974 blue Mazda RX4 automobile, bearing Connecticut license plate number JW-1466, which was owned by the defendant's friend, Paul Stevens, and registered in the name of Stevens' father. Stevens was the only one who used the car, except when he loaned it to friends. Stevens, who was away in Washington, D.C., from December 23 through December 31, 1982, had given the defendant free use of the car, provided that the defendant was to drive Stevens' mother to and from work in the morning and afternoon.

At approximately 5 a.m. on December 28, 1982, the victim was jogging southbound along Van Buren Avenue in Norwalk when the defendant, driving Stevens' car southbound on Van Buren Avenue, drove up onto the sidewalk and struck the victim's left leg, knocking her to the ground and causing injury. The defendant stopped the car and got out to ask if the victim needed help. The victim declined any help and began running northbound in the direction of her home. Looking over her shoulder as she ran, the victim noted that the car was a small, dark colored, late model sedan bearing Connecticut license plate number JW-1466. The car passed the victim and then turned so as to come at her again. The victim turned and began running southbound when the car mounted the sidewalk and struck her a second time, striking both legs and throwing her forward to the ground, causing additional injuries. Once again, the defendant got out of the car and asked the victim if she needed help, saying that he would drive her to the hospital. The victim again declined the defendant's request that he take her to the hospital. She tried to run away, but the defendant grabbed her from behind and placed his hand over her face and mouth. When the victim tried to scream and attempted to escape, the defendant wrestled with her, telling her to "shut up or he would kill" her. He then drew the victim's clothing over her head, restraining her head and hands and rendering her unable to see, and forced her into the car.

The victim was wedged between the car's front bucket seats, and although she was unable to see, she noted a heavy, sweet odor and heard coins jingling about on the floor. They drove for approximately ten minutes, whereupon the defendant stopped the car and attempted to pull down the victim's pants. When he encountered difficulty, she offered to help in the hope that if she cooperated with him, he would not kill her. Once the victim's pants were down about her knees, the defendant penetrated her vagina with his penis. When he encountered difficulty in fully penetrating the victim, however, the defendant withdrew his penis and repositioned the victim by turning her on to her side, whereupon he once again penetrated her vagina with his penis while simultaneously penetrating her anus with his finger. Both penetrations of her vagina occurred within approximately two or three minutes. Approximately five minutes later, after ejaculating inside the victim, the defendant withdrew his penis and, leaving the victim wedged on her side between the front seats, started the car and resumed driving. The defendant drove for approximately ten minutes until he stopped the car and pushed the victim out of the car and onto the ground. The victim watched the car drive away. She then flagged down a passing car occupied by two men, who drove her to the hospital. Upon arriving at the hospital, the victim informed the hospital staff that she had been sexually assaulted, and they contacted the police. The victim was examined, a rape kit was prepared, and the police interviewed the victim, who described the incident to them, including the description and license plate number of the car.

The next day, December 29, 1982, the victim was shown the car by the police, who had located it in the driveway of the defendant's parents' home, which was located about two blocks from Van Buren Avenue. The police had secured a search and seizure warrant for the car and had towed it to police headquarters. The victim identified it as the car that had struck her. The car had the identical license plate number, and a sweet odor in its interior emanating from a deodorizer hanging in the car, which the victim identified as the same odor she had detected, and two bucket seats. There was also loose change underneath the console cover. In addition, on December 29, the victim unequivocally identified a photograph of the defendant from a photographic lineup, as that of her assailant. She again identified the defendant at trial as her assailant.

The jury also could have found, from the testimony of the defendant and his girlfriend, Simone Downer, that, on the night of December 27, 1982, he had stayed overnight at Downer's house on Ponus Avenue, Norwalk, which was a three minute drive from the defendant's parents' house. The defendant left Downer's house at approximately 4 a.m. on December 28, driving Stevens' car.

The defendant was questioned by the police on December 29, 1982. He subsequently left Norwalk by flying to Colorado, from where he flew back to his military post in Germany. Thereafter, he was arrested and returned by the military to face the charges in the present case.

I

The defendant first claims that his conviction of two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1981) § 53a-70(a),² violated his federal constitutional right not to be placed twice in jeopardy for the same offense.³ Specifically, the defendant claims that the two penetrations of the victim's vagina constituted one offense, not two separate offenses, because they were so closely related in time and, therefore, constituted one continuous act. Therefore, the defendant contends, his conviction for two separate counts of sexual assault violated the double jeopardy clause.⁴ The state claims, to the contrary, that the two separate acts of forcible penetration constituted two separate offenses pursuant to § 53a-70 (a), and, therefore, there was no double jeopardy violation. We agree with the state.

"Double jeopardy prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense. . . . The double jeopardy analysis in the context of a single trial is a two part process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.. . . The defendant on appeal bears the burden of proving that the prosecutions are for the same offense in law and fact." (Citations omitted; internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 67, 644 A.2d 887 (1994).

It is axiomatic that the double jeopardy guarantee against multiple punishments for the same offense in the same trial does no more than prevent greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); State v. Ferguson, 260 Conn. 339, 361, 796 A.2d 1118 (2002). Our case law has long established that each act of criminal sexual conduct, as defined by our criminal statutes, is separately punishable under those statutes and, therefore, in such cases there is no double jeopardy violation because they do not arise out of the same act or transaction. State v. Frazier, 185 Conn. 211, 228-30, 440 A.2d 916 (1981) (multiple forcible sexual assaults during course of burglary), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); State v. Snook, 210 Conn. 244, 260-63, 555 A.2d 390 (multiple acts of risk of injury to child), cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Kulmac, supra, 230 Conn. 68 (separate acts of vaginal penetration by finger and penis); see also State v. Albert, 252 Conn. 795, 805, 750 A.2d 1037 (2000) (sexual assault statutes designed to punish fact, not degree, of penetration).

Regarding the defendant's claim that there must be a certain unspecified length of time between each act of...