State v. Warholic

• Decision Date: 31 August 2004
• Docket Number: No. 23464.,23464.
• Citation: 854 A.2d 1145,84 Conn.App. 767
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Charles WARHOLIC.

854 A.2d 1145

84 Conn.App. 767

STATE of Connecticut v. Charles WARHOLIC.

No. 23464.

Appellate Court of Connecticut.

Argued May 25, 2004.

Decided August 31, 2004.

Richard Emanuel, New Haven, for the appellant (defendant).

Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence D. Mariani, assistant state's attorney, for the appellee (state).

BISHOP, WEST and DUPONT, Js.

BISHOP, J.

This case requires us to revisit the proper boundaries of prosecutorial advocacy. The defendant, Charles Warholic, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and one count of risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that (1) there was insufficient evidence to support his conviction, (2) he was denied his right to a fair trial due to prosecutorial misconduct and (3) the court incorrectly permitted the state to cross-examine him about a witness' veracity.¹ We reverse the judgment of conviction and remand the case for a new trial.

The jury reasonably could have found the following facts. E was born in 1986. In 1990, when E was four years old, his parents were divorced and his father moved out of their house. After the divorce, E lived with his mother, his two older sisters, L and B, and the defendant, who was his mother's boyfriend. In February, 1992, when E was five years old, his family and the defendant moved to a rented house in Watertown.

According to E, the defendant began sexually assaulting him approximately one year after they moved to the rented house. E had a clear memory of the first incident of abuse. According to E, when his mother was out of the house, the defendant told him to come upstairs to a bathroom. Once upstairs, the defendant closed the bathroom door and told E to take his clothes off and to get into the shower. The defendant then stood naked in the shower with E and had E kneel beneath the shower and face him. At the behest of the defendant, E put his mouth on the defendant's penis and moved his head back and forth. That lasted two minutes until the defendant ejaculated. E then put his hands on and rubbed the defendant's penis. The entire incident lasted five minutes. E was instructed never to tell anyone about the incident.

According to E, incidents similar to the first one occurred on a regular basis, approximately fifty to sixty times, until March or April, 1994. E testified that whenever he saw his mother pick up her blue notebook, he would go to his bedroom because he knew the defendant was going to sexually assault him. E's mother took her book with her when she left the house as part of her routine. In March, 1999, E moved in with his father and his father's new wife, C, and her three children. C observed that during that time period, E was a quiet child who often misbehaved. In February, 2000, after E misbehaved, C told E that he would have to return to live with his mother. E begged her not to return him to his mother and eventually told her about the abuse by the defendant. E also told his father about the abuse. E and his father then gave statements to the police. The defendant was later arrested and charged accordingly.

Howard Krieger, a psychologist and an expert in child sexual assault cases, testified at the trial. Krieger, who did not treat E, described the general symptoms of sexually abused children, including the delayed reporting of such abuse. The defendant and the victim's mother testified on the defendant's behalf. According to the victim's mother, E and the defendant had a normal relationship, and she never witnessed the defendant acting in an inappropriate manner toward E. She denied ever bringing a blue notebook with her to meetings and noted that she rarely left E home alone with the defendant. The defendant testified that while E was living with him, he baby-sat the children infrequently, and he denied E's claims of sexual assault.

The state presented two rebuttal witnesses, J, a friend of the victim's mother, and E's sister, B, who both resided in the rented house. J testified that she observed the defendant and E on numerous occasions, and that E appeared withdrawn and afraid of the defendant. B testified that her mother was out of the house on a regular basis and would take her notebook with her to certain meetings that she attended.

The defendant was convicted subsequently on both counts of the information and sentenced to a total effective term of twelve years incarceration, followed by twenty years of probation. This appeal followed.

I

The defendant first argues that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Specifically, the defendant argues that the evidence was insufficient to establish that the alleged abuse occurred between 1993 and 1994. We disagree.

The following additional facts are necessary to our resolution of the defendant's claim. The original information, which was filed prior to the trial, alleged that the abuse occurred between 1992 and 1994. At the completion of the evidence, but before the case was submitted to the jury, the state was granted permission to file a substitute long form information that alleged that the sexual assaults occurred between July 1, 1993, and May 31, 1994. With those additional facts set forth, we address the defendant's claim.

Our standard of review for a claim of insufficient evidence is well established. "In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Servello, 80 Conn.App. 313, 318, 835 A.2d 102 (2003), cert. denied, 267 Conn. 914, 841 A.2d 220 (2004).

The defendant does not challenge the sufficiency of the evidence that supports the jury's finding that the sexual assaults occurred. Rather, he claims that the evidence does not establish that the sexual assaults took place during the time period alleged by the state. The issue before us, then, is whether the testimony supports the jury's conclusion that the defendant committed a sexual assault on E between July 1, 1993, and May 1, 1994. Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the testimony was sufficient to establish beyond a reasonable doubt that the events occurred between July 1, 1993, and May 31, 1994. As noted, E testified that the assaults occurred about one year after he moved to the rented house and ended between March and April, 1994. Testimony by E and his mother established that they moved to that house in February, 1992. Taking the testimony of E and his mother together, the jury reasonably could have concluded that the assaults took place within the time frame alleged by the state.

The defendant concedes that "construing [the evidence] in the light most favorable to the prosecution, the assaults commenced in early 1993 and ended by March or April of 1994." He argues, however, that because E stated on cross-examination that the assaults occurred "shortly after" they moved, as opposed to "one year after they moved," as he did on direct examination, E's testimony was "improbable and unconvincing." That argument lacks merit. First, we note that the statements are not facially inconsistent. Moreover, even if those statements could be construed as inconsistent, "[e]vidence is not insufficient... because it is conflicting or inconsistent.... It is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.... The [jury] can ... decide what — all, none, or some — of a witness' testimony to accept or reject." (Internal quotation marks omitted.) State v. Wortham, 80 Conn.App. 635, 642, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 53, 845 A.2d 406 (2004). The evidence was sufficient to sustain the verdict.

II

The defendant next claims that he was deprived of his due process rights to a fair trial by the egregious, wilful and repeated misconduct of the prosecutor. We agree.²

As a preliminary matter, we note that several of the defendant's claims were preserved through valid objections and a motion for a mistrial. To the extent that some of the defendant's claims are unpreserved, we will review them under the same rubric as we do preserved claims. See State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004) ("in cases involving incidents of prosecutorial misconduct that were not objected to at trial ... it is unnecessary for the defendant to seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 [1989]"). "To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice.... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process." (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 699-700, 793 A.2d 226 (2002).

Accordingly, claims of prosecutorial misconduct trigger a two-pronged inquiry. "The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and...