State v. Victor C.

• Decision Date: 20 August 2013
• Docket Number: No. 34055.,34055.
• Citation: 145 Conn.App. 54,75 A.3d 48
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. VICTOR C.

145 Conn.App. 54

75 A.3d 48

STATE of Connecticut

v.VICTOR C.^*

No. 34055.

Appellate Court of Connecticut.

Argued April 11, 2013.

Decided Aug. 20, 2013.

Michael Zariphes, assigned counsel, for the appellant (defendant).

Adam E. Mattei, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellee (state).

ROBINSON, ALVORD and KELLER, Js.

ALVORD, J.

The defendant, Victor C., appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53–21(a)(2).¹ On appeal, the defendant claims that the trial court improperly (1) denied his postverdict motions for a judgment of acquittal and a new trial on the basis of insufficient evidence; (2) permitted the state, just prior to presenting its case-in-chief, to file a substitute information extending the time period during which the alleged crimes were committed, and denied his request for a continuance in order to formulate a defense for the extended time period; and (3) admitted the hearsay statements of the minor victim contained within the testimony of a nurse practitioner. We affirm the judgment of conviction.

The jury reasonably could have found the following facts in support of its verdict. In 2009, the victim was thirteen years old. Between March and September of that year, her mother was staying at a drug rehabilitation center, and the victim was living in a house in Bridgeport with her grandmother, grandfather, uncle, one or two younger siblings, and her stepfather, the defendant. One night, the defendant entered the victim's bedroom and, after removing her clothes, rubbed his erect penis on her breasts and vagina (incident). The victim did not attempt to stop the incident from occurring because she was scared.

The victim told her mother about the incident while her mother was residing at the drug rehabilitation center. Her mother previously had been investigated by the Department of Children and Families (department), and she did not inform anyone of what had happened to her daughter. The victim then told her uncle's girlfriend about the incident, and through a series of conversations, several members of the victim's family became aware of the incident. At about the same time, the victim's special education teacher, who is a mandated reporter; see General Statutes § 17a–101 (b); noticed that the victim was unfocused and apathetic in the classroom. She confronted the victim about her change in attitude, and the victim told her about the incident. The special education teacher brought the victim to the school's social worker, and the department was contacted. The victim was interviewed by a department investigator and later by a forensic examiner. Approximately fifteen days after disclosing the incident to her special education teacher, the victim was examined by Janet Murphy, a nurse practitioner at the child sexual abuse clinic (clinic) at Yale–New Haven Hospital. Murphy's examination consisted of an interview of the victim as well as a physical examination.

The record reveals the following procedural history. The defendant was charged with sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(1), sexual assault in the second degree in violation of General Statutes § 53a–71 (a)(1), risk of injury to a child in violation of § 53–21(a)(2) and threatening in the second degree in violation of General Statutes § 53a–62 (a)(1). On December 30, 2010, the state filed a substitute part A information alleging that he violated those statutes on “an undetermined date in November or December of 2009....” On August 2, 2011, the state filed an amended substitute information, which differed from the original information only in that it removed the charge of threatening in the second degree. On September 12, 2011, the state filed a substitute information, which alleged that the defendant committed the three remaining crimes “on an undetermined date between March and December of 2009....”

The state proffered the September 12, 2011 substitute information outside the presence of the empaneled jury just prior to commencing its case-in-chief against the defendant. The defendant objected to the substitute information on the ground that expanding the time period when the incident occurred from November or December, 2009, to sometime between March and December, 2009, was a violation of his due process and confrontation clause rights. During his argument in support of his objection, he requested a continuance to further investigate and formulate a defense for the expanded time period. After argument, the court determined that the time period was not an essential element of the alleged crimes and overruled the defendant's objection to the substitute information.

Following the presentation of the state's case-in-chief, the court granted the defendant's oral motion for a judgment of acquittal as to sexual assault in the first degree, and the state filed an amended substitute information to reflect that judgment. The jury subsequently returned a guilty verdict on the charge of risk of injury to a child in violation of § 53–21(a)(2), and was unable to reach a unanimous verdict on the charge of sexual assault in the second degree. The defendant then filed a motion for a judgment of acquittal and a motion for a new trial. The court denied both motions. Thereafter, the court rendered judgment of conviction on the charge of risk of injury to a child in violation of § 53–21(a)(2) and sentenced the defendant to incarceration for twenty years, suspended after fifteen years, and ten years of probation. This appeal followed.

I

The defendant first claims that the court improperly denied his postverdict motions for a judgment of acquittal and a new trial on the basis of insufficient evidence. He argues that the inconsistency and impeachment of the victim's testimony cast significant doubt on its veracity, and that the victim's testimony about the incident, absent any physical evidence, was insufficient to support the jury's guilty verdict. We do not agree that the evidence was insufficient to sustain the conviction.

The record reveals that the defense strategy was to undermine the credibility of the victim and that the victim's testimony was inconsistent and contradicted by other testimony. For example, the victim initially testified that she could not remember where within the home or what time of day the incident occurred, but subsequently testified that the incident happened in her bedroom at night. Throughout her testimony, when she was posed questions pertaining to the incident, the victim testified that she could not remember. Oftentimes, however, she would follow up those answers by stating, “I don't want to remember,” and then providing an answer to the question. On cross-examination, after answering a series of questions about the discrepancy between her answers of, “I don't remember,” and, “I don't want to remember,” the victim answered yes to a leading question about whether she had fabricated the entire story about the incident. Her answer to the next question, however, denied that she had fabricated the story, and defense counsel did no further questioning on that topic. After the victim testified, the jury heard testimony from the victim's special education teacher that the victim had difficulty expressing herself, receiving information, maintaining concentration and disclosing personal information. The jury also heard testimony from the forensic interviewer, who testified that when he interviewed the victim, she was anxious, nervous and uncomfortable during the interview, and that she responded, “I don't remember,” multiple times to his questions. He further testified that when he asked the victim about such responses, the victim stated that she responded in that manner because it was hard to talk about the incident.

The victim testified that the incident occurred in November or December, 2009, while her mother was staying at the drug rehabilitation center. This testimony was contradicted by the testimony of one of her uncles that the victim's mother had left the drug rehabilitation center and returned home in September, 2009. In the defendant's case-in-chief, he offered the impeachment testimony of another one of the victim's uncles. That uncle's testimony, that the victim's one year old brother could not have been staying at the house with the victim at the time of the incident, contradicted the victim's testimony that her brother was present when the incident occurred.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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.... [A reviewing court] cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.... [P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal.... 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. Moore, 141 Conn.App. 814, 818, 64 A.3d 787, cert. denied, 309 Conn. 908, 68 A.3d 663 (2013).

“Questions of whether to believe or to disbelieve a competent...