State v. Wideman, 13385

• Court: Connecticut Court of Appeals
• Writing for the Court: FOTI
• Citation: State v. Wideman, 650 A.2d 571, 36 Conn.App. 190 (Conn. App. 1995)
• Decision Date: 10 January 1995
• Docket Number: No. 13385,13385
• Parties: STATE of Connecticut v. John WIDEMAN.

Page 571

650 A.2d 571

36 Conn.App. 190

STATE of Connecticut v. John WIDEMAN.

No. 13385.

Appellate Court of Connecticut.

Argued Sept. 14, 1994.

Decided Nov. 22, 1994.

Certification Denied Jan. 10, 1995.

Elizabeth M. Inkster, Asst. Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Stephen J. Sedensky, Jr., Asst. State's Atty., for appellee (state).

Before FOTI, LAVERY and SCHALLER, JJ.

FOTI, Judge.

The defendant appeals ¹ from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), conspiracy to commit kidnapping in the first degree and sexual assault in the first degree in violation of General Statutes §§ 53a-92(a)(2)(A), 53a-70(a)(1) and 53a-48(a), aiding sexual assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-70(a)(1), and sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1). He was sentenced to a total effective sentence of twenty years imprisonment. On appeal, the defendant claims (1) that the trial court violated the rules of evidence and denied him a fair trial and due process by allowing the testimony of the victim regarding her knowledge of the defendant's prior homicide convictions and pending homicide charges, (2) that the trial court abused its discretion in relying on the coconspirator exception to the hearsay rule to allow testimony concerning an assault on the victim's boyfriend, (3) that the evidence was insufficient to sustain a conviction for aiding sexual assault in the first degree, and (4) that the trial court's failure to ascertain which of the substantive offenses the jury found the defendant had conspired to commit violated the defendant's due process rights.

The jury could reasonably have found the following facts. On August 24, 1991, the victim was living with her boyfriend, Michael Epps, in an apartment located in building seventeen of Father Panik Village in Bridgeport. On the evening of August 24, 1991, as the victim was walking down a hallway in her building, she had a confrontation with the defendant, John Wideman. The two argued about the gates that were placed at the end of each hallway. The defendant wanted the gates to be left open to facilitate the sale of drugs in the building. The victim returned to her apartment after the confrontation. About fifteen minutes later, as she was leaving the building, she was confronted by the defendant and six other men, Kevin Rogers, Reggie Rogers, Nate Rogers, Maurice McNeil, Gene Black and Nicholas Wardlaw. Kevin Rogers told the victim that she was going to be punished for keeping the gates closed. He told her that she had a choice between being "beat down" or performing fellatio on each of them. She understood that to be "beat down" meant to be beaten to the point that she would not be able to get up. The defendant was going in and out of the building during this time but was present when Kevin Rogers gave the victim the two options.

The victim told the men she did not want to be beaten, and they took her to another building in Father Panik Village. The victim testified that she was afraid of what the men would do to her if she ran. She testified that two weeks prior to this incident, Kevin Rogers had beaten her with a belt. She also testified that she had seen Kevin Rogers, along with several of the men, attack and beat people. The victim testified that she was especially afraid of the defendant because, approximately one month prior to this incident, Epps had told her that the defendant had served time for killing two people and he was out on bond for a double homicide.

The victim was taken to a third floor apartment in building thirteen. The defendant was in the apartment at this time. The victim performed fellatio on three of the men. One of the men inserted a beer bottle into the victim's vagina as the others, including the defendant, watched and cheered. The victim was hit with a belt. When she said she wanted to stop, Nate Rogers pushed her into a stereo and bruised the back of her head.

The victim was then forced to perform fellatio on the defendant. As this was occurring, Epps, who had been looking for the victim, knocked on the apartment door after he had heard the victim crying. Kevin Rogers opened the door and threw a bottle at Epps. Epps then ran to his sister's apartment and called the police. Epps gave the police an incorrect apartment number and the police went to the wrong apartment.

When Epps knocked on the apartment door, the victim went into the bathroom and dressed. Four of the men left the apartment, but the others, including the defendant, remained. The defendant forced the victim to undress and to perform fellatio on him. While this was going on, someone called the defendant's name. The victim got dressed and left the apartment.

After calling the police, Epps tried to return to building thirteen. He encountered Kevin Rogers, Reggie Rogers and McNeil. They started beating Epps because he had called the police. They put a belt around his neck and tried to bring him back to the apartment in building thirteen. When this failed, they beat him and left him lying on the ground. An unidentified woman found him and brought him to Bridgeport Hospital. The victim met Epps at the hospital where he was treated for his injuries and released.

The next day, as the victim was returning to her apartment, she met Kevin Rogers, Nate Rogers and Reggie Rogers. She did not see the defendant. Epps was looking out of his apartment window, however, and saw the three men approach the victim with the defendant behind them. Kevin Rogers told the victim that she was not done yet and that they were coming back to get her that night. Epps called the police and both he and the victim went to Bridgeport Hospital. The treating physician found that the victim had superficial bruises and lacerations. The victim told the physician what had happened to her.

I

The defendant first claims that the trial court's denial of his motions in limine and for mistrial based on the victim's testimony regarding the defendant's prior criminal record and pending criminal charges violated the rules of evidence and denied the defendant a fair trial and due process. We disagree.

Prior to trial, the state indicated that it would seek to offer the victim's testimony regarding her knowledge of the defendant's criminal activities. This testimony was being offered to show the victim's state of mind. The defense filed a motion in limine seeking to preclude the testimony. The trial court ruled the evidence admissible under the state of mind exception to the hearsay rule. It determined that the probative value of the evidence outweighed its prejudicial effect. Immediately following the testimony, the court gave a cautionary instruction, limiting the use of the testimony to a consideration of its impact on the victim's state of mind. ²

The defendant subsequently filed a motion for mistrial arguing that the victim's testimony had prejudiced the defendant's case. This motion was denied. During the jury charge, the court again instructed the jury that the testimony was admissible only to prove the victim's state of mind, and not as substantive evidence. ³ The defendant now argues that the trial court improperly admitted the victim's testimony because it was hearsay, irrelevant and prejudicial.

The defendant describes the victim's testimony as inadmissible hearsay. "A statement made out-of-court that is offered to establish the truth of the matter contained in the statement is hearsay, and as such is inadmissible." State v. Blades, 225 Conn. 609, 632, 626 A.2d 273 (1993). "An out-of-court statement is not hearsay, however, if it is offered to illustrate circumstantially the declarant's then present state of mind, rather than to prove the truth of the matter asserted." Id. Here, the testimony in question was not hearsay. It was not offered for the truth of the matter asserted, but rather for the purpose of showing the victim's state of mind, i.e., her fear of the defendant.

The defendant contends that the victim's fear of him was not relevant because he claims that, although he was present, he did not participate in the initial coercion by the group of men who confronted the victim.

A victim's fear of another individual is admissible when relevant to the issues at trial. State v. Blades, supra, 225 Conn. at 633, 626 A.2d 273. "A trial court has broad discretion in determining the relevancy of evidence ... and its ruling will be disturbed only upon a showing of a clear abuse of discretion." (Citation omitted.) State v. Peruta, 24 Conn.App. 598, 610, 591 A.2d 140, cert. denied, 219 Conn. 912, 593 A.2d 137 (1991). Here, the defendant was charged with, among other things, the crimes of kidnapping and sexual assault. The state of mind of the victim is a relevant consideration in both of these crimes. ⁴ The statutes focus on the mental state of the victim when the crimes are accomplished by the "threat of force." The evidence produced at trial showed that the kidnapping was a result, in part, of the fear that the victim had of the assailants and that this fear caused her to be intimidated into going to building thirteen with them. Therefore, the victim's testimony, which revealed her fear of the defendant, was relevant to the kidnapping and sexual assault counts. The fact that the defendant did not participate in the initial coercion does not change this conclusion. The victim first argued with the defendant alone in the hallway. The victim was aware of the defendant's presence during the subsequent occurrences. Her state of mind explains why she performed fellatio on the defendant without the use of any physical force by him. Under these circumstances, the challenged testimony was relevant.

We note that other...