State v. Warren, 4450

• Decision Date: 14 June 1988
• Docket Number: No. 4450,4450
• Citation: 544 A.2d 209,14 Conn.App. 688
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Martin WARREN.

Page 209

544 A.2d 209

14 Conn.App. 688

STATE of Connecticut v. Martin WARREN.

No. 4450.

Appellate Court of Connecticut.

Argued Nov. 18, 1987.

Decided June 14, 1988.

Richard Emanuel, with whom, on the brief, was Burton M. Weinstein, Bridgeport, for appellant (defendant).

Daniel C. Casagrande, Sp. Asst. State's Atty., with whom was Bradford J. Ward, Asst. State's Atty., for appellee (State).

Before DALY, BIELUCH and NORCOTT, JJ.

NORCOTT, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70(a) and conspiracy to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49(a) and 53a-70(a). The defendant claims (1) that the trial court erred in instructing the jury on the elements of the crime of sexual assault in the first degree, (2) that the rape victims shield law, General Statutes § 54-86f, is unconstitutional because it violates the separation of powers provision of the Connecticut constitution, (3) that the rape victims shield law is unconstitutional as applied to this case, (4) that the trial court erred in limiting his cross-examination of the complainant regarding a prior rape complaint, (5) that the trial court erred in denying the defendant's motion to admit evidence of the complainant's prior sexual conduct, (6) that the trial court erred in instructing the jury on evidentiary exhibits, (7) that the trial court erred in its instructions on circumstantial evidence, and (8) that the evidence was insufficient to establish his guilt beyond a reasonable doubt of the crimes charged. We find no reversible error.

The jury could reasonably have found the following facts. On June 1, 1984, the complainant left her home at approximately 10:30 p.m. and went to Gig's, a nightclub and bar in Torrington. The complainant left Gig's at 1 a.m. on June 2, 1984. Sometime between the hours of 1 and 1:30 a.m the complainant arrived at a bar in Waterbury called Toad's Place where she sat alone and had one or two beers. While at Toad's Place, the complainant was approached by a man she had met approximately one year earlier at a company outing. After a brief conversation, the complainant accompanied the man and one of his friends to a place in Naugatuck known as the Naugatuck Social Club.

The three arrived at the Naugatuck Social Club (NSC), a boarded-up, two room clubhouse where members and their guests shot pool and drank beer, at approximately 3 a.m. When the complainant walked in, she noticed that there were approximately twenty-five people in the clubhouse and that all but one or two were men. The defendant, who was then and had been the president or chairman of the NSC since its inception in 1983, was present when the complainant entered the clubhouse.

The complainant walked into the front room of the NSC. When she did, the men crowded around her. One of the men handed her a beer. She took a sip and the beer was taken away from her. Some of the men then began grabbing the complainant and pinching her. The complainant climbed up on top of the bar and tried to push the men away. The men continued to grab her, and she began clawing anyone who tried to touch her.

The complainant grabbed her pocketbook and tried to leave, but a man the complainant later identified as the defendant blocked the door. While the other men crowded around her, the defendant said, "I'll be the doorman." The defendant then said he wanted to play pool. He kicked the complainant and threw her onto the pool table. The complainant rolled off the table and someone handed her a pool stick. The defendant then proceeded to take a shot on the pool table. After the complainant had taken a shot, someone took the pool stick away from her. Some of the men grabbed the complainant and carried her to the back room, threw her down on a couch and proceeded to gang rape her. One of the men who participated in the gang rape was the defendant.

I

The defendant's first claim is that the trial court erred in instructing the jury on the elements of the crime of sexual assault in the first degree. Specifically, the defendant takes issue with the court's statement that the "first element of [the crime of sexual assault in the first degree] ... requires proof ... that there was sexual intercourse with the complainant's body.... If you find that such intercourse took place, whether by the defendant or someone else, then the requirement of the first element is met." (Emphasis added.) It is the defendant's contention that this instruction enlarged the crime of sexual assault beyond the terms of the statute, thereby depriving him of his right to notice of the charges against him and his right to due process law. We find no error.

At the outset, we note that the defendant did not properly preserve this issue for appeal. The defendant neither filed a specific request to charge on this issue nor did he take an exception to the charge given. Practice Book § 854. Despite the defendant's failure to preserve this claim properly, we will review it for the first time on appeal because it implicates the defendant's fundamental constitutional right to a fair trial. State v. Brown, 199 Conn. 14, 26, 505 A.2d 690 (1986); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The due process clause of the fourteenth amendment to the United States constitution requires that every fact necessary to constitute the crime of which the accused stands charged must be proven beyond a reasonable doubt before the accused may be convicted. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In order to ensure that every fact is proven beyond a reasonable doubt, "[i]t is ... constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged." State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). " ' " ' "If justice is to be done ... it is of paramount importance that the court's instructions be clear, accurate, complete and comprehensible, particularly with respect to the essential elements of the alleged crime." United States v. Clark, 475 F.2d 240, 248 (2d Cir. [1973]'...." State v. Kurvin, [186 Conn. 555, 561, 442 A.2d 1327 (1982) ].' State v. Roque, 190 Conn. 143, 157, 460 A.2d 26 (1983); State v. Griffin, 175 Conn. 155, 163, 397 A.2d 89 (1978)." State v. Williamson, supra, at 709, 539 A.2d 561.

In this case, the defendant claims that the court's instruction was inaccurate in that it allowed him to be convicted of sexual assault in the first degree as a principal even if he, himself, did not have sexual intercourse with the complainant. ¹ Our Supreme Court has recognized that "an instruction containing a misstatement of the law is more likely to be prejudicial than an instruction that contains an omission or an incomplete statement of the law. Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977)." State v. Preyer, 198 Conn. 190, 198, 502 A.2d 858 (1985). We find, however, that the court's instruction is not a misstatement of the law.

General Statutes § 53a-70(a) provides in relevant part: "A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person...." It is axiomatic that the words in a statute are to be given their plain and ordinary meaning. Carlson v. Kozlowski, 172 Conn. 263, 266, 374 A.2d 207 (1977). By its very terms, this statute imposes liability for sexual assault on any person who compels another person, by the use of force, to engage in sexual intercourse, regardless of with whom the sexual act is performed. That the statute is to be given this construction is clear from its legislative history. "In construing a statute, [the] court will consider its plain language, its legislative history, its purpose and the circumstances surrounding its enactment." State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985).

Prior to 1975, the act of forcibly compelling someone to engage in sexual intercourse was considered rape in the first degree as proscribed by General Statutes (Rev. to 1975) § 53a-72. State v. Rodgers, 198 Conn. 53, 60-61, 502 A.2d 360 (1985). General Statutes (Rev. to 1975) § 53a-72 provided: "A male is guilty of rape in the first degree when he engages in sexual intercourse with a female: (1) By forcible compulsion...." (Emphasis added.) It is clear under the terms of that statute that, in order to be guilty of rape in the first degree, a male had to personally engage in sexual intercourse with a female victim.

In 1975, however, General Statutes § 53a-72 was repealed and its provisions divided between sexual assault in the first degree, General Statutes § 53a-70, and sexual assault in the second degree, General Statutes § 53a-71. State v. Rodgers, supra, at 60-61, 502 A.2d 360. In enacting this change, the legislature eliminated the requirement that the defendant must engage in a sexual act with the victim. " '[W]e may not presume that the legislature has enacted futile or meaningless legislation or that a change in the law was made without a reason.' City Council v. Hall, 180 Conn. 243, 251, 429 A.2d 481 (1980). 'We can assume that this change in the law was made to accomplish some purpose.' Brown v. Cato, 147 Conn. 418, 162 A.2d 175 (1960)." State v. Mackor, 11 Conn.App. 316, 322, 527 A.2d 710 (1987).

"The difference between the language used in the former and the present statutes evinces a legislative intent to overcome the construction given the earlier statute by previous cases in this jurisdiction." Id. The elimination of the requirement that the defendant personally engage in sexual intercourse with the victim shows unmistakably that the legislature intended to extend liability under the sexual assault statute to those who compelled another to engage in sexual intercourse...