State v. Smith

• Decision Date: 21 February 1989
• Docket Number: No. 13446,13446
• Citation: 210 Conn. 132,554 A.2d 713
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Richard T. SMITH.

Page 713

554 A.2d 713

210 Conn. 132

STATE of Connecticut v. Richard T. SMITH.

No. 13446.

Supreme Court of Connecticut.

Argued Nov. 4, 1988.

Decided Feb. 21, 1989.

Martin Zeldis, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

James M. Ralls, Deputy Asst. State's Atty., with whom, on the brief, were Susan Marks and Roland Fasano, Asst. State's Attys., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, COVELLO and HULL, JJ.

SHEA, Associate Justice.

After a jury trial the defendant was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70. In this appeal he claims error in (1) the denial of his motion for a judgment of acquittal for insufficiency of the evidence on the element of lack of consent; (2) the application of a statute, § 53a-70, claimed to be unconstitutionally vague, to the facts of this case; (3) the instructions to the jury, as well as the argument of the prosecutor, concerning certain evidence of consciousness of guilt; and (4) the charge upon reasonable doubt. We find no error.

Upon the evidence presented the jury could reasonably have found the following facts. On March 18, 1987, the victim, T, a twenty-six year old woman, and her girlfriend, A, a visitor from Idaho, went to a bar in West Haven. T was introduced by a friend to the defendant, who bought her a drink. The defendant invited her and A, together with a male acquaintance A had met at the bar, to dinner at a restaurant across the street. After dinner, the defendant having paid for T's share, the four left the restaurant. The defendant proposed that they all go to his apartment in West Haven. Because A's acquaintance had a motorcycle, the defendant gave them directions to the apartment so that they could ride there, while he and T walked.

After a twenty minute walk, the defendant and T arrived at the apartment at about 10 p.m. A and her acquaintance were not there and never arrived at the apartment. When T and the defendant had entered the apartment they sat on the couch in the living room to watch television. After a while the defendant put his arm around T and told her he wanted a kiss. She gave him a kiss. She testified that "He wouldn't back off. He wouldn't let go of me. So I said, look, I am not kidding. I really don't want to do anything. I don't know you and whatnot." The defendant still held onto T. She testified that he was "still right in my face wanting to kiss me. You know, saying so, saying that you don't think I paid for dinner for nothing, do you."

T testified that she was scared: "At first I didn't know what to do. I did spit in his face and he didn't even take it seriously. Then I tried kicking him off, which was to no avail. He was way too big for me." T described the defendant as "at least six foot two" and "at least two hundred pounds." She testified: "He told me he could make it hard on me or I could make it easy on myself, which I finally decided was probably my best bet." T understood that the defendant was determined to "have sex" with her and that either he would hurt her or she "was going to go along with it." At the point where T ceased resistance, she was "down on the couch" and the defendant was "on top of" her.

T testified that she had informed the defendant that she had to pick up her daughter, had insulted him, and had told him that he was "a big man to have to force a woman." She testified, however, that after she decided to "give in," she tried to convince the defendant that she was not going to fight and "was going to go along with him and enjoy it."

The defendant removed T's clothing as she remained on the couch and led her into the bedroom. When she declined his request for oral sex, he did not insist upon it, but proceeded to engage in vaginal intercourse with her. After completion of the act, the defendant said that he knew the victim felt that she had been raped, but that she could not prove it and had really enjoyed herself.

After they both had dressed, the defendant requested T's telephone number, but she gave him a number she concocted as a pretense. He also offered her some sherbet, which she accepted and ate while she waited for a cab that the defendant had called. T, however, placed her pink cigarette lighter underneath the couch, so that she would be able to prove she had been in the apartment. When the cab arrived, she left the apartment. She told the cab driver to take her to the police station because she had been raped. At the station she gave her account of the event to the police. The defendant was arrested. The police found T's lighter under the couch in his living room, where T had informed them it was located.

I

Although the defendant claims insufficiency of the evidence as the basis for his claim that he was entitled to an acquittal, he actually seeks to have this court impose a requirement of mens rea, or guilty intent, as an essential element of the crime of sexual assault in the first degree. In fact, he concedes in his reply brief that, if conviction for sexual assault in the first degree requires only a general intent, he cannot prevail on his claim that the evidence was insufficient to support his conviction. This court has held that our statute, § 53a-70, requires proof of only a general intent to perform the physical acts that constitute that crime. State v. Carter, 189 Conn. 611, 625, 458 A.2d 369 (1983). "No specific intent is made an element of the crime of first degree sexual assault...." "It is well settled that first degree sexual assault is a general intent crime." State v. Rothenberg, 195 Conn. 253, 258 n. 4, 487 A.2d 545 (1985); State v. Johnson, 185 Conn. 163, 176, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983).

The defendant, nevertheless, urges that we adopt a construction of § 53a-70 making the mental state of the defendant the touchstone for the resolution of the issue of consent when presented in a prosecution for first degree sexual assault. He refers to this mental state as a mens rea, a guilty mind, and describes it as an awareness on the part of a man that he is forcing sex upon a woman against her will and that he intends to do so. In the context of the evidence in this case, the defendant claims, though he did not testify at trial, that he honestly believed that at the time the sexual act occurred that T had consented to it. He bases this claim upon her testimony that, after their preliminary encounter on the couch, and his remark that he could "make it hard" for her or she could "make it easy" on herself, she ceased resisting his advances and decided to "go along with it." T also testified that, once she decided to "give in," she acted as if she were "going to go along with him and enjoy it."

The position advocated by the defendant that the requisite mens rea should be an element of the crime of sexual assault in the first degree is supported by a widely publicized decision of the British House of Lords in 1975, Director of Public Prosecutions v. Morgan, 1976 App. Cas. 182, 205, 2 W.L.R. 913, 2 All E.R. 347 (H.L.1975). A majority of the court held that a defendant cannot properly be convicted of rape if he in fact believed that the woman had consented, even though the basis for his belief may not have been reasonable. Lord Hailsham expressed the view that, for the crime of rape at common law, "the prohibited act is and always has been intercourse without the consent of the victim and the mental element is and always has been the intention to commit that act, or the equivalent intention to have intercourse willy-nilly, not caring whether the victim consents or no." Id., 215. A similar position has been adopted in Alaska, where it is held that the state has the burden of proving at least "that the defendant acted 'recklessly' regarding his putative victim's lack of consent." Reynolds v. State, 664 P.2d 621, 625 (Alaska App.1983). The Supreme Court of California has concluded that a wrongful intent is an element of a rape offense, but, contrary to Morgan, has held that this element would be negated if a defendant entertained a "reasonable and bona fide belief" that the complainant had consented. (Emphasis added.) People v. Mayberry, 15 Cal.3d 143, 145, 125 Cal.Rptr. 745, 542 P.2d 1337 (1975). A recent commentary on the subject of rape also has suggested that the focus of the inquiry regarding consent in such cases should be upon the mens rea of the defendant rather than upon the attitude of the victim. S. Estrich, "Rape," 95 Yale L.J. 1087, 1094-1132 (1986).

Most courts have rejected the proposition that a specific intention to have intercourse without the consent of the victim is an element of the crime of rape or sexual assault. See, e.g., State v. Reed, 479 A.2d 1291, 1296 (Me.1984); Commonwealth v. Grant, 391 Mass. 645, 650, 464 N.E.2d 33 (1984); Commonwealth v. Lefkowitz, 20 Mass.App. 513, 521, 481 N.E.2d 227, review denied, 396 Mass. 1103, 485 N.E.2d 188 (1985); Commonwealth v. Williams, 294 Pa.Super. 93, 99-100, 439 A.2d 765 (1982); State v. Houghton, 272 N.W.2d 788, 791 (S.D.1978). This court has implicitly discountenanced such a claim. State v. Rothenberg, supra; State v. Carter, supra. One of the complications that might arise, if such a mental element were required, involves the problem of intoxication, which is generally held to be relevant to negate a crime of specific intent but not a crime of general intent. State v. Carter, supra, 189 Conn. at 625, 458 A.2d 369; State v. Bitting, 162 Conn. 1, 7, 291 A.2d 240 (1971). The difficulty of convicting a thoroughly intoxicated person of rape, if awareness of lack of consent were an element of the crime, would diminish the protection that our statutes presently afford to potential victims from lustful drunkards. Another related problem would be the admissibility of evidence of other similar behavior of a defendant charged...