State v. Albert

50 Conn. App. 715

719 A.2d 1183

STATE OF CONNECTICUT v. RONALD ALBERT

(AC 15490)

Appellate Court of Connecticut.

Argued March 24, 1998.

Officially released October 13, 1998.

Schaller, Spear and Hennessy, Js. Suzanne Zitser, assistant public defender, with whom was Martin Zeldis, assistant public defender, for the appellant (defendant).

Carolyn K. Longstreth, senior assistant state's attorney, with whom were Anne F. Mahoney, deputy assistant state's attorney, and, on the brief, James E. Thomas, state's attorney, for the appellee (state).

Opinion

SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2)¹ and risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21.² The defendant's principal claim is that penetration of the labia majora,³ as charged here, does not constitute sexual assault in the first degree because such penetration does not constitute "vaginal" intercourse as defined in General Statutes (Rev. to 1991) § 53a-65 (2).⁴ Consequently, the defendant asserts that the trial court (1) should have granted his motion for a judgment of acquittal because neither the allegation nor the evidence of penetration of the labia majora was sufficient to sustain his conviction, (2) improperly instructed the jury that penetration into the genital opening of the victim constituted vaginal intercourse and (3) improperly precluded cross-examination of the victim's mother with respect to having been sexually molested herself and the victim's therapist with respect to the mother's disclosure of that fact to him. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 2, 1992, the defendant attended a picnic at Globe Hollow Pond in Manchester with the victim, N, age three, her mother, her father and her brother. N referred to the defendant, her godfather, as Uncle Ronnie. N testified that while she and the defendant were swimming, the defendant put his hand underneath N's bathing suit and touched her "inside" her "crotch" with his index finger. The touching caused pain and N screamed. After N screamed, the defendant told her not to tell anyone about the touching. When N started crying, her father took her out of the water and brought her to her mother. While she was crying, N said "bad Uncle Ronnie" several times. Physical examinations by physicians shortly thereafter revealed two scrapes on the inside fold of the labia majora that were typical of recent sexual abuse.

The first count of the original information alleged that the defendant "penetrated the vagina" of the victim with his finger or fingers. During the trial, the state amended the first count of the information to allege that the defendant committed sexual assault by penetrating "the labia majora of the genitalia of a three (3) year old girl with his finger or fingers." The jury returned a verdict of guilty on both counts of the information and, after denying the defendant's motion for a judgment of acquittal, the trial court imposed sentence. This appeal followed.

I

A

The defendant's principal contention is that the conviction cannot stand⁵ because § 53a-65 (2)⁶ defines sexual intercourse as, inter alia, "vaginal intercourse ...." He asserts that the information does not charge, nor does the evidence prove, vaginal intercourse. Whether digital penetration that is alleged and proven to have occurred between the folds of the labia majora, but not into the vagina, constitutes vaginal sexual intercourse pursuant to § 53a-65 (2) presents a question of statutory construction.

The defendant claims that no interpretation is necessary because the clear wording of the statute requires that vaginal penetration be alleged and proven to support a conviction. We are aware of the rule of statutory interpretation that where the language of a statute is clear and unambiguous, no construction is necessary and a court simply applies the statute as its words direct. See State v. Lubus, 216 Conn. 402, 407, 581 A.2d 1045 (1990); State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). We conclude that § 53a-65 (2) is facially ambiguous because it is not clear whether digital penetration of the genital opening is sufficient to complete sexual intercourse or whether such penetration must be into the vagina. Because of this ambiguity, we must turn to recognized principles of statutory construction to ascertain the meaning of the term "sexual intercourse" in the context of this case.

"The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).

We first address the principle that a statute that imposes criminal liability should be strictly construed and ambiguities normally resolved in favor of the defendant. State v. Harrell, 238 Conn. 828, 832, 681 A.2d 944 (1996); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). Such strict construction, according to the defendant, precludes us from construing vaginal intercourse as including penetration of the labia majora.

Although the defendant asserts that the doctrine of strict construction is dispositive, that doctrine "is only one of the aids which is to be used in the construction of penal statutes.... Other aids include such things as the statutory language itself, legislative history where available, the furthering of the policy and purposes fairly apparent from the statute which include the mischief sought to be proscribed and related statutes." (Citation omitted.) Singh v. Singh, 213 Conn. 637, 646-47, 569 A.2d 1112 (1990). The Singh court also stated that "[n]o rule of construction, however, requires that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope.... It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislature]." (Internal quotation marks omitted.) Id., 646. Even where a criminal statute is at issue, our Supreme Court has shown its "disinclination to interpret statutes in a vacuum.... Where a court possesses clues to the meaning of a statute, there certainly can be no rule of law which forbids [their] use, however clear the words may appear on superficial examination." (Citation omitted; internal quotation marks omitted.) State v. Golino, 201 Conn. 435, 442, 518 A.2d 57 (1986).

Our search for the meaning of the superficially clear words "vaginal intercourse" and "penetration" is not constrained by the doctrine of strict construction because the law surrounding the crime of rape does not exist in a vacuum, but has a long history that we may consult in aid of our interpretation. As a starting point, we focus on the words "[p]enetration, however slight," because that phrase links § 53a-65 (2) to its statutory and case law antecedents.

We first encounter the notion that the least penetration is sufficient to complete the crime of rape in State v. Shields, 45 Conn. 256 (1877). The defendant requested that the trial court charge the jury that "to constitute rape actual penetration of the body of the woman by the insertion into her of the private parts of the accused is absolutely necessary." Id., 259. After charging as requested, the court added, "`but the least penetration is sufficient ....'" Id. Our Supreme Court affirmed the charge as correct. Id., 263. That was the first charge regarding penetration challenged in the Connecticut courts, and the concept of minimal penetration has been a part of our law prohibiting sex offenses ever since. See State v. Dubina, 164 Conn. 95, 97, 318 A.2d 95 (1972); State v. Hickey, 23 Conn. App. 712, 714, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d 1233, cert. denied, 501 U.S. 1252, 111 S. Ct. 2894, 115 L. Ed. 2d 1058 (1991). We have found no cases, and the defendant cites none, in which our Supreme Court or this court has construed the least penetration doctrine as requiring penetration of the vagina. Prior to our adoption of the Penal Code in 1971, General Statutes (Rev. to 1968) § 53-238 provided in relevant part: "Any person who commits the crime of rape upon any female shall be imprisoned .... Any person who carnally knows any female under the age of sixteen years shall be guilty of rape...." In addition to enunciating the slightest penetration rule, the Supreme Court defined "carnal knowledge" as sexual intercourse. See State v. Dubina, supra, 164 Conn. 97; State v. Ferris, 81 Conn. 97, 99, 70 A. 587 (1908). Sexual intercourse always had its ordinary meaning.

Public Acts 1969, No. 828, § 66, which went into effect in October, 1971, and was codified in 1972 as General Statutes § 53a-65, provided in relevant part: "(1) `Sexual intercourse' has its ordinary meaning and occurs upon any penetration, however slight...." For the first time, the least penetration rule was made a part of a statute that defined sexual intercourse. There was a separate subsection in § 53a-65 that defined "deviate sexual intercourse" as "sexual contact ... consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva...." General Statutes (Rev. to 1972) §...