State v. Smith

• Decision Date: 13 March 2018
• Docket Number: AC 39690
• Citation: 180 Conn.App. 181,182 A.3d 1194
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ronald G. SMITH

180 Conn.App. 181

182 A.3d 1194

STATE of Connecticut

v.Ronald G. SMITH

AC 39690

Appellate Court of Connecticut.

Argued November 29, 2017

Officially released March 13, 2018

Richard S. Cramer, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Debra Collins, senior assistant state's attorney, and Toni M. Smith–Rosario, senior assistant state's attorney, for the appellee (state).

Alvord, Keller and Lavery, Js.

ALVORD, J.

The defendant, Ronald G. Smith, appeals from the judgments of conviction, rendered after a jury trial, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73a(a)(1)(A), six counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2), six counts of risk of injury to a child in violation of § 53–21(a)(1), two counts of sexual assault in the first degree in violation of General Statutes § 53a–70(a)(2), and three counts of sexual assault in the second degree in violation of General Statutes § 53a–71(a)(1). On appeal, the defendant, relying upon Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed. 2d 91 (1976), claims that the state violated his constitutional right to remain silent when it introduced evidence of the defendant's post- Miranda silence.¹ We conclude that any claimed error was harmless beyond a reasonable doubt. Accordingly, we affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The defendant met the victim² between November, 2007 and November, 2008, when the victim was nine years old. At that time, the victim lived in an apartment in Hartford with his mother, his grandmother, and his younger sibling, who was the child of the defendant and the victim's mother. The defendant was dating the victim's mother and would spend time daily at the apartment.

On one occasion, when the victim was nine years old, he was watching television in the bedroom he shared with his mother when the defendant came into the room to play wrestle. The defendant then took his penis out, rubbed it on the victim's arm, and tried to rub it near the victim's mouth. The victim tried to push away from the defendant. The victim's mother entered the room and asked what the defendant was doing. Both the defendant and the victim said that the defendant was not doing anything. The victim did not tell his mother what the defendant did to him because "it just felt weird and she wouldn't have believed me anyways," and "she would take his side over mine sometime."

The defendant lived with his mother and would bring the victim to his house to play with another of the defendant's children. On one such occasion, the victim, who was ten years old at the time, was in the basement at the defendant's house when the defendant told the victim to come near him and to pull his pants down and lie on the bed. The defendant pulled his pants down, spit on his hand, rubbed his penis, and anally penetrated the victim. When the victim tried to sit up to get away, the defendant laid the victim against the bed face down and held him down. The victim made a whining noise, and the defendant told him to "shut up." The defendant ejaculated into the victim's anus. After this incident, the victim was in pain and would see blood when he used the bathroom. The victim did not tell his mother what happened because he did not think she would believe him. The defendant anally penetrated the victim on more than twenty occasions when the victim was ten years old. The victim did not tell anyone the defendant was doing this because he "didn't want anyone to think [he] was gay ...." The defendant offered to give and gave the victim toys and money in exchange for letting the defendant perform these acts.

The defendant fathered a child with a woman who lived in Windsor, and the defendant would bring the victim to visit that child at the woman's home (Windsor home). On one occasion before Christmas when the victim was eleven or twelve, the defendant bought the victim an iPod and told the victim "now you have to let me fuck you." The defendant drove the victim to the parking lot of the Windsor home and covered the back seat windows of the car. The defendant spit on his hand, rubbed his penis, and anally penetrated the victim. The defendant ejaculated, and then drove the victim home and told the victim to tell his mother that they were loading the defendant's truck. Between November, 2009 and January, 2011, the defendant continued to anally penetrate the victim, and did so more than ten times in the parking lot of the Windsor home.

On one occasion, when the victim was thirteen years old, the defendant asked the victim's mother if he could take the victim to help him load his truck. The defendant took the victim to a motel in Windsor Locks, showed the victim pornography on the television and told the victim "to do the same thing that's in the porno." The defendant again spit on his hand, rubbed his penis, and anally penetrated the victim. On another occasion, the defendant put his penis into the victim's mouth and ejaculated into his mouth. Afterward, the defendant bought the victim a BB gun.

In April or May, 2013, the victim told his mother what the defendant was doing to him, but when his mother said she would call the cops, the victim said "never mind." The victim, wanting the abuse to stop and in an attempt to break up the defendant and his mother, also told his mother that the defendant was "cheating on her," and testified that he "was cheating on her with me really."

On one occasion in August, 2013, the defendant again took the victim, who was fourteen at the time, to a motel in Windsor Locks. The defendant told the victim to take off his clothes, laid the victim across the bed, and anally penetrated the victim. The incident lasted "longer than before" and "hurt more." The victim told the defendant to stop but he did not. The victim told the defendant he "was finished with it" and "wasn't doing that anymore," and the defendant laughed. After this incident, the victim felt a painful "bubble inside of [his] anus." He told his mother that he had hemorrhoids from a bicycle accident and asked to go to the family doctor. The victim saw Idaresit Udo, a physician, on August 21, 2013. The victim did not tell the doctor about the abuse because his mom was present. The victim went home and his symptoms worsened to the point where he experienced difficulty getting out of bed.

Also in August, 2013, the Department of Children and Families (department) became involved with the victim after receiving an anonymous report that his mother was leaving younger children alone in the home with the victim throughout the night. When the department responded to the home on or about August 26, 2013, the victim was observed to be in pain. The next day, Dante Rabb, an investigator with the department, visited the victim's home. He observed the victim lying in bed and crying in pain, saying his buttocks area hurt. Rabb asked the victim if he wanted to see a doctor and he hesitated, looked at his mother, and finally said yes. Rabb and the victim's grandmother brought him to the doctor's office. The victim's mother did not accompany them because she stated she did not have time. The victim saw Fonda Gravino, a physician, and told her that the defendant had been having anal intercourse with him. Dr. Gravino performed a physical exam and noted abrasions and ulcerations, which injuries she concluded were a result of child sexual abuse. Dr. Gravino and the victim telephoned the victim's mother and the victim told his mother that the defendant had been sexually abusing him for the past five years.

The victim's mother telephoned the Hartford Police Department to report the sexual assault, and Officer Tyrone Boland responded. Boland transported the victim from Dr. Gravino's office to the Connecticut Children's Medical Center, where he was admitted. During the drive, the victim told Boland that his mother's boyfriend had sexually assaulted him. While at the hospital, the victim's mother asked Rabb and Boland how long it was going to take and said that she had "things to do." Also at the hospital, the victim told others, including Rabb and Nina Livingston, a child abuse pediatrician, that the defendant had been sexually abusing him for years. Dr. Livingston diagnosed the victim with "suspected sexual abuse," and concluded that the victim's injuries were not caused by a bicycle accident. Dr. Livingston further observed symptoms of psychological distress that could have been consistent with post-traumatic stress and depression and recommended trauma-focused counseling.³ The victim remained in the hospital for almost a week, and was diagnosed with a sexually transmitted disease.

After the victim was released from the hospital, he went to live with his aunt.

The defendant voluntarily submitted to interviews with both the Hartford and Windsor Police Departments, and officers from both departments submitted arrest warrant applications. Later, on December 23, 2013, members of a police fugitive task force arrived at the Windsor home, where the defendant was located. After several hours of refusing to open the door to the task force, the defendant was arrested. The defendant elected a jury trial.

During trial, the state presented the testimony of Boland and Detective Shawn Ware, both of the Hartford Police Department, and Officer Russell Winiger of the Windsor Police Department. Boland and Ware testified regarding the September 10, 2013 interview (Hartford interview). Ware testified that the defendant drove himself to the Hartford Police Department on that date.

Boland, Detective Danny Johnson, and Ware were present for the Hartford interview. Ware advised the defendant of his Miranda rights, and the defendant signed a waiver of rights form.⁴ The form was entered into evidence without objection from defense counsel. Ware...