State v. Smith, 11897

Decision Date24 December 1985
Docket NumberNo. 11897,11897
Citation502 A.2d 874,198 Conn. 147
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Donald SMITH.

James E. Swaine, New Haven, for appellant (defendant).

Guy W. Wolf III, Asst. State's Atty., with whom, on brief, was Arnold Markle, State's Atty., for appellee (state).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and CALLAHAN, JJ.

CALLAHAN, Judge.

The defendant, Donald Smith, was charged in an indictment with kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A). 1 He was convicted by a jury of that charge. The same jury convicted him of sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1)(A) 2 and of assault in the third degree in violation of General Statutes § 53a-61(a)(1), 3 crimes that were charged in an information and which stemmed from the same incident as the charge of kidnapping. The defendant was sentenced by the trial court to consecutive terms totaling twenty-eight and one-half years to life imprisonment. The defendant has appealed his conviction claiming that (1) the trial court erred in "accepting" the jury's verdict of guilty of the charge of kidnapping because there was a variance between the charge as set forth in the indictment and the proof at trial; (2) the trial court erred in denying the defendant's motion "to limit the state's proof to the allegations of the indictment"; (3) he was denied effective assistance of counsel; and (4) the trial court erred in certain rulings on the evidence.

From the evidence adduced at the trial the jury could reasonably have found the following relevant facts: On May 22, 1981, the victim was sixteen years old and lived in West Haven. That afternoon, at about 2:30 p.m., she went to visit a girl friend who lived four houses away from her. During the visit, she met some of her friend's relatives, including the defendant, who was her friend's uncle. The defendant was forty-two years old at the time of the incident and resided in Massachusetts. During the afternoon, the defendant drove the victim and his niece in his pickup truck from his niece's home to a house several blocks away where his niece had to care for some cats. While his niece fed the cats, the victim remained in the truck with the defendant. On the return trip, the defendant drove past the victim's house and dropped his niece off at her house. The defendant had said earlier that he was returning to Massachusetts as soon as he dropped his niece off. He also had told the victim that she was a "pretty girl" and a "very attractive girl" and had asked her to return to Massachusetts with him. She declined the invitation.

After leaving his niece at her house, the defendant drove the victim the short distance to her home. He parked and asked her for directions to the highway, interstate 95. The victim gave the requested directions, but the defendant said he wanted her to go with him to show him the entrance. He told her that once he had located the highway he would turn around and bring her back home. The victim informed the defendant that she did not have time because she had to get ready to go to a funeral. The defendant insisted, however, that she accompany him, and when she opened the door to exit the truck the defendant accelerated and the door flew shut. At this point, the victim acquiesced in the defendant's request and remained in the truck while she directed the defendant to interstate 95. During the ride the defendant told the victim that he would turn around and bring her home when they reached the City Point Yacht Club. The defendant, however, continued driving when he reached the entrance to interstate 95 and then drove onto the highway. Once on the highway, the victim repeatedly asked the defendant to take her home, but he ignored her or told her to "shut up" and continued driving. During the ride the defendant threatened her with a gun which she described as silver with a black piece on the handle. He also showed her pornographic magazines.

Eventually the defendant brought the victim to a dirt road in a wooded area off East Johnson Road in Cheshire. Once there, he ordered her to take off her clothes. When she refused he struck her, held a knife to her throat and cut and tore her clothing. In the face of the defendant's threats, the victim removed most of her clothing and the defendant sexually abused her. He then choked her until she was unconscious and left her partially clothed in the wooded area. When the victim regained consciousness, she made her way to East Johnson Road where a passing motorist picked her up and gave her a ride back to her parents in West Haven.

The victim's mother testified that, when she saw her daughter, she appeared to have been "terribly beaten" and her clothes were torn. John Loeffler, a physician who examined the victim at Yale-New Haven Hospital that evening, testified that she was "tearful," that she had "a number of injuries" and that she appeared to have been strangled. The victim identified the defendant as her abductor.

The indictment accused the defendant of kidnapping in the first degree and charged that, "at the City of West Haven on May 22, 1981," the defendant abducted the victim and restrained her with the intent to inflict physical injury upon her and to violate and abuse her sexually in violation of General Statutes § 53a-92(a)(2)(A). (Emphasis added.)

The defendant first claims that there was a variance between the indictment and the proof offered at trial and that he was prejudiced thereby. He argues, therefore, that the court erred in "accepting" the jury verdict of guilty to the charge of kidnapping. This claim is premised on the defendant's view that the victim originally agreed to accompany him and that she did not protest her presence in his truck or request to be returned to her home until his truck was on the entrance to interstate 95 in New Haven. Therefore, he claims that she was not restrained and abducted in the city of West Haven as alleged in the indictment. The defendant does not claim, as indeed he cannot, that the court lacked jurisdiction. General Statutes (Rev. to 1981) §§ 51-344(4), 4 51-352c. 5

"This court will construe the evidence in the light most favorable to sustaining the [jury's] verdict and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom." State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982). The court correctly charged the jury that the "restraint" which is the basis of the crime of kidnapping must have been imposed on the victim without the victim's consent and that acquiescence secured by fraud or deception is not deemed consent. See General Statutes § 53a-91(1)(a). The fact that the victim did not affirmatively and vocally protest her continued presence in the defendant's truck and request him to return her to her home until the truck entered upon interstate 95 in New Haven has no effect on the validity of the jury's verdict in this case. The jury could reasonably have found proved beyond a reasonable doubt that, while parked in front of her home in West Haven, the defendant requested the victim to accompany him to show him the entrance to interstate 95 and he promised to return her to her home when that was accomplished. The jury could also have found proved beyond a reasonable doubt that the defendant's request and promise were a ruse employed to lure the victim into his control and that she was therefore deceived into remaining with him. People v. Valero, 120 Misc.2d 539, 542, 466 N.Y.S.2d 600 (1983). The fact that the victim did not know that she was being restrained is of no consequence. See United States v. Hoog, 504 F.2d 45, 51 (8th Cir.1974); State v. Colbert, 221 Kan. 203, 557 P.2d 1235 (1976); State v. Alston, 294 N.C. 577, 588-89, 243 S.E.2d 354 (1978). The word "deception" as used in General Statutes § 53a-91(1)(a) 6 implies that the victim did not know she was being restrained. See State v. Colbert, supra, 221 Kan. 209, 557 P.2d 1235. It is the intent of the accused which the state has to prove, not that of the victim. The jury therefore could have found that the victim was restrained and abducted in West Haven. There was no variance between the indictment and the proof adduced at trial.

Even if there had been a variance, the defendant has failed to demonstrate any resulting prejudice. "The defendant can gain nothing from his present claim without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done him because of the language of the [indictment]." State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979). The defendant's claim of prejudice is that he was prevented from properly defending the indictment because the allegation that the kidnapping took place in West Haven prevented him from arguing that the restraint of the victim did not constitute kidnapping but rather was merely incidental to the crimes charged in the information which occurred in Cheshire. See State v. Lee, 177 Conn. 335, 343, 417 A.2d 354 (1979); State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d 263 (1977).

"[T]he accused in a criminal proceeding has the right to be informed of the nature and cause of the accusation against him, and that the offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at his trial." State v. Sumner, supra, 178 Conn. 166, 422 A.2d 299. It is inconceivable to us how the defendant could have been misled as to the offense with which he was charged. Nor does his brief enlighten us as to why the allegation that West Haven was the place where the kidnapping occurred prevented him from making the claim he now asserts. Further, if the indictment had alleged that the kidnapping occurred in New Haven as the defendant seems to...

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