State v. Stephen J.R.

• Decision Date: 06 August 2013
• Docket Number: No. 18748.,18748.
• Citation: 309 Conn. 586,72 A.3d 379
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. STEPHEN J.R.

309 Conn. 586

72 A.3d 379

STATE of Connecticut

v.STEPHEN J.R.^*

No. 18748.

Supreme Court of Connecticut.

Argued April 17, 2013.

Decided Aug. 6, 2013.

Heather M. Wood, assistant public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Paul Rotiroti, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, McDONALD, ESPINOSA and VERTEFEUILLE, Js.

McDONALD, J.

This case requires us to consider the sufficiency of what other courts have referred to as “generic” or “nonspecific” testimony in a case in which the defendant is charged with sexual abuse of a child. Such testimony typically arises in cases in which an alleged abuser either lives with the child victim or has ongoing access to the child and, as a result, the victim testifies to repeated acts of abuse occurring over a period of time but, “lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults.” People v. Jones, 51 Cal.3d 294, 299, 792 P.2d 643, 270 Cal.Rptr. 611 (1990).

Pursuant to General Statutes § 51–199(b)(3), the defendant, Stephen J.R., directly appeals from the judgment of conviction, rendered after a jury trial, of eight counts of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2)¹ and eight counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2). ² The defendant's principal claim is that the evidence regarding the number and distinguishing features of each incident in which these acts occurred was insufficient to prove beyond a reasonable doubt each of the charges. In addition, the defendant contends that the trial court improperly failed to order disclosure of all of the records of the Department of Children and Families (department) relating to the complainant, J, following an in camera review of those records, and that improper remarks of the prosecutor to the jury in closing argument deprived him of his constitutional right to a fair trial. We disagree with the defendant's claims and affirm the judgment of conviction.

The record reveals that the defendant was charged with the aforementioned sixteen counts predicated on four separate incidents.³ With respect to each of the four incidents, the state contended that the defendant had committed two counts of sexual assault in the first degree—an act of fellatio and an act of cunnilingus as the acts of sexual intercourse—and two counts of risk of injury to a child, one for each act of sexual assault.

The jury reasonably could have found the following facts in connection with these charges. During all relevantperiods of time, the defendant was a long haul truck driver from Georgia, whose job took him through Connecticut at various times throughout the year. In the spring of 2002, the defendant and J's mother, A, met and later began a dating relationship. This relationship lasted from approximately April, 2002 to April, 2003, when J was approximately seven years old. During that period of time, the defendant stayed with A and J in their one bedroom apartment in Bristol four or five times, in stays ranging from overnight to three or four days, in addition to a multiweek stay on one occasion while A recuperated from an accident. When the defendant stayed overnight, he routinely would drive A to work at 8:30 a.m. and pick her up at approximately 5:30 p.m. At approximately 3 p.m., the defendant would pick J up from school. As a result, the defendant and J were alone in the apartment each afternoon for approximately one and one-half hours.

One day between April and June, 2002, when J was at home after school, she went from the living room into the bedroom that she shared with her mother to play with her dollhouse. When J entered the bedroom, she found the defendant undressed on the bed. The defendant told her to put his penis in her mouth, and she did. The defendant then pulled down her clothing from the waist down and put his tongue on her vagina.⁴ Afterward, the defendant instructed J not to tell her mother about what had happened.

Several months into A's relationship with the defendant, she noticed a change in J's attitude toward the defendant. J seemed afraid of the defendant and uncomfortable around him. On one occasion, when the defendant asked J to go somewhere with him, she ran to her mother and said, “Mommy, I don't want to go with him anymore.” In April, 2003, A broke off her relationship with the defendant.

In January or February, 2006, the defendant's sister called A and asked her if the defendant had done anything sexually to J. A then posed that question to J. J denied the abuse to her mother because she thought that if she “broke that secret that something bad would happen.” Several more times during the next two years J denied to her mother that the defendant had sexually assaulted her. In November or December, 2007, however, J admitted to a friend that the defendant had “raped” her. In February, 2008, J finally admitted to her mother that the defendant had sexually assaulted her. Soon after, A contacted the police, which led to the defendant's arrest.

With respect to the three additional incidents, the state offered the following evidence. J testified that the incident she had described occurred “[three] or four times” ⁵ before her mother broke off her relationship with the defendant in April, 2003. J stated that “[i]t was always the same thing” and in “the same place.” ⁶ When the defendant was engaging in these acts, he would entice J with promises of taking her out for ice cream or to play miniature golf. He fulfilled those promises by taking her out to have ice cream numerous times at a restaurant that was formerly called “Sam's” and to play miniature golf once at Hidden Valley. Further, the defendant told her to keep the sexual acts a secret from her mother “every other time it would happen.”

The state also presented the DVD of J's April 11, 2008 diagnostic interview with Lisa Murphy–Cipolla, a clinical child interview supervisor at the Aetna Foundation Children's Center at Saint Francis Hospital and Medical Center. During the interview, J told Murphy–Cipolla that the defendant would put his mouth on her vagina and he would make her put her mouth on his penis. J also identified on diagrams of male and female anatomy where she had touched the defendant and where he had touched her, consistent with her statements. When asked how many times this conduct occurred, J answered “five to six times.” ⁷ Murphy–Cipolla testified that delayed disclosure is common in cases of reported child abuse.

At the end of the state's case, the defendant moved for a judgment of acquittal on all charges. The court denied the defendant's oral motion, and the jury thereafter returned a verdict of guilty on all sixteen counts. The trial court rendered judgment in accordance with the jury's verdict, and this direct appeal followed.

I

We first address whether there was sufficient evidence to support the defendant's conviction of eight counts of sexual assault in the first degree in violation of § 53a–70 (a)(2) and eight counts of risk of injury to a child in violation of § 53–21(a)(2). The defendant argues that there was insufficient evidence to prove beyond a reasonable doubt that he abused J on four separate and distinct occasions. Specifically, the defendant argues that J's testimony was vague insofar as she referred to the “[three] or four incidents” and what the defendant “would” do in the course of these incidents. He further argues that her testimony lacked facts to distinguish the four incidents from each other and was unsupported by corroborative evidence. We disagree that the evidence was insufficient to support the defendant's conviction.

We begin with the well established principles that guide our review. In reviewing a sufficiency of the evidence claim, we apply a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict....

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt....

“On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty.” (Internal quotation marks omitted.) State v. Michael H., 291 Conn. 754, 759, 970 A.2d 113 (2009).

With respect to the first alleged incident, we conclude that the defendant's claim is wholly without merit that there was insufficient evidence to establish all the elements of sexual assault in the first degree for the two counts relating to the two different acts of sexual intercourse; see footnote 1 of this opinion; and the two related counts of risk of injury to a child. See footnote 2 of this opinion. J testified that one day she found the defendant undressed on the bed and he told her to put...