State v. Williams, 19526

• Decision Date: 04 September 2001
• Docket Number: 19526
• Citation: 783 A.2d 53
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOHN WILLIAMS19526 THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

STATE OF CONNECTICUT v JOHN WILLIAMS

No. AC 19526

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued June 11

September 4, 2001

Counsel G. Douglas Nash, public defender, with whom were Kelly D. Bryce and Kathleen G. Klenk, certified legal interns, and, on the brief, Pamela S. Nagy, assistant public defender, for the appellant (defendant). John A. East III, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David J. Strollo, senior assistant state's attorney, for the appellee (state).

Foti, Spear and Flynn, Js.

Foti, J.

Opinion

The defendant, John Williams, appeals from the judgment of conviction, rendered after a jury trial, of four counts of sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) (2) ¹ and four counts of risk of injury to a child in violation of General Statutes §§ 53-21. ² On appeal, the defendant claims that the state failed to present sufficient evidence to prove beyond a reasonable doubt that he committed the separate crimes of sexual assault in the first degree by means of (1) cunnilingus and (2) penile and digital penetration of the victim's vagina. ³ The defendant also claims that the trial court improperly (1) restricted cross-examination, (2) admitted evidence as an exception to the hearsay rule, (3) admitted constancy of accusation testimony and (4) denied his motion for a mistrial because of claimed prosecutorial misconduct during closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim was born on November 30, 1991. In 1994, following her parents' separation, the court awarded custody of the victim to her father. Her mother, a chronic alcoholic, was hospitalized at the Connecticut Valley Hospital, a mental care institution, where she met and developed a relationship with the defendant, who also was a patient. Upon their release, they cohabitated in an apartment where, by agreement with the victim's father, the victim would visit three weekends a month and on certain holidays.

The apartment was a cramped, one bedroom apartment in which the victim's mother, the defendant, the victim's two year old half-brother and her infant halfsister resided. The defendant's adult, divorced sister Denise, who worked nights, also temporarily roomed at the apartment. Further adding to the congestion were the regular weekend visits of the defendant's twelve year old son and eight year old daughter, who were the offspring of the defendant's union with his estranged wife. The living arrangements were, therefore, quite close at best, and the sleeping arrangements varied.

The victim's mother worked both day and night shifts as a waitress in a restaurant and, as a result, the defendant, who was unemployed, spent a considerable amount of time alone on the weekends with the five children. During the period commencing in October, 1996, and concluding on November 25, 1997, the defendant used these opportunities to subject the victim repeatedly to acts of sexual abuse. The defendant would wait until his children were playing outside, preoccupied with viewing television or playing video games, and then he would summon the victim to the bedroom where the two younger children were sleeping or to the bathroom. The defendant subjected the victim to repeated sexual acts, including vaginal intercourse, digital penetration, fellatio and cunnilingus. He also compelled her to masturbate him and at times he masturbated himself while standing over the victim, showering her with his ejaculate. The defendant, who the victim both disliked and feared, warned the victim to ''keep it a secret'' and not to tell anyone.

On November 23, 1997, after her father had picked her up at the end of her weekend visit, the victim blurted out that the defendant ''makes me do sex,'' and pointed to her genital area and her mouth. The father notified the police and the state department of children and families (department) and took his child to the family pediatrician. The doctor advised him to have the child examined at the Yale New Haven Child Sex Abuse Clinic (Yale clinic). The victim's father scheduled an examination at the clinic.

On November 26, 1997, Meriden police detectives Jennifer Shelton and Gary Brandl interviewed the victim in the principal's office of her elementary school. They used a neutral, open-ended interviewing technique and, aided by anatomical cartoon drawings and a chart displaying various physiologically diverse phalli, they elicited from the victim the details of the abuse.

On December 3, 1997, Janet Murphy, a pediatric nurse practitioner, conducted a medical examination of the victim at the Yale clinic. This examination did not reveal any disease, injuries or physical abnormalities. During the examination, the victim told Murphy that the defendant had penetrated her vagina.

The victim testified at trial regarding the sexual abuse, the physical and physiological characteristics of the turgid penis and the mechanics of male orgasm and seminal ejaculation. John Leventhal, a physician and the prosecution's expert witness regarding child sexual abuse victims, testified that such knowledge was clearly unusual and wholly inappropriate for a child in the victim's age group. He also testified that, absent some other source of that knowledge, it supported the strong inference that the victim acquired such knowledge as a result of having been sexually abused. He also testified that delayed disclosure of sexual abuse by child victims was so common that it constituted the norm rather than the exception. Additional facts will be set forth as needed.

I.

The defendant first claims that the evidence was insufficient to support his conviction of three counts of sexual assault in the first degree. We do not agree.

''The two part test for evaluating the sufficiency of the evidence in a jury trial is well established. First, the reviewing court construes the evidence presented at trial in a light most favorable to sustaining the verdict. . . . The reviewing court then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from them, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . . In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct.'' (Citations omitted.) State v. Wager, 32 Conn. App. 417, 429±n30, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993).

To convict a person of sexual assault in the first degree in violation of §§ 53a-70 (a) (2), the state must prove beyond a reasonable doubt that such person had sexual intercourse with a victim who was under the age of thirteen and that the perpetrator was more than two years older than the victim. General Statutes §§ 53a65 (2) defines sexual intercourse as ''vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen....''

A.

The defendant claims that the state failed to prove beyond a reasonable doubt that he performed cunnilingus on the victim.

Penetration is not required for the commission of cunnilingus, which involves the use of the lips or tongue in the external or internal parts of the sex organs. See State v. Kish, 186 Conn. 757, 764±n65, 443 A.2d 1274 (1982). The victim's testimony, her affirmative answers and the demonstrative evidence presented were sufficient, if accepted as credible, for the jury to have found proven beyond a reasonable doubt that the defendant placed his mouth on the victim's vagina. ⁴ The evidence presented at trial, along with the reasonable inferences drawn therefrom, was sufficient to support the jury's verdict as to count two.

B.

The defendant also claims that the evidence was insufficient to support his conviction for the crime of sexual assault in the first degree by digital and penile penetration of the victim's vagina. Specifically, he claims that the state failed to present sufficient evidence to prove penetration.

The victim testified that the defendant touched her in her private parts with ''his fingers'' and ''his private part,'' and that her private part was in the ''front one'' where ''the pee comes out of,'' which she called her ''wee-wee.'' The victim also presented demonstrative evidence of the claimed abuse. Additionally, the state presented Murphy's testimony as to what the victim had told her and had physically demonstrated relative to the touching and her body. ⁵

Accordingly, we conclude that the evidence presented was sufficient to support the conviction as to counts three and four.

II.

The defendant next claims that the court improperly prevented him from eliciting from the victim's father reasons for his divorce from the victim's mother and the subsequent custodial arrangements. He claims that the court thereby violated his right of confrontation and prevented him from developing, through that witness, evidence of the victim's bias and motive falsely to accuse him.

The following facts are necessary to place the defendant's claim in its proper context. The victim openly testified during direct examination and again on crossexamination that she disliked and resented the defendant, was saddened by her parents' divorce and clung to the hope that her parents would reunite. She testified that she saw arguments between her mother and the defendant on a daily basis and that she knew that the defendant would be in trouble when she made her disclosures, and added that she was happy that she and her mother would never see the defendant again.

The victim's father testified that his...