State v. Blango

927 A.2d 964

103 Conn.App. 100

STATE of Connecticut v. Emmanuel BLANGO.

No. 26826.

Appellate Court of Connecticut.

Argued April 17, 2007.

Decided August 7, 2007.

Annacarina Del Mastro, senior assistant public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, assistant state's attorney, for the appellee (state).

SCHALLER, DiPENTIMA and STOUGHTON, Js.

SCHALLER, J.

The defendant, Emmanuel Blango, appeals from the judgment of conviction, rendered after a jury trial, of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a(a)(1) ¹ kidnapping in the second degree with a firearm in violation of General Statutes § 53a-94a,² two counts of sexual assault in the third degree with a firearm in violation of General Statutes § 53a-72b³ and threatening in the second degree in violation of General Statutes § 53a-62(a)(1).⁴ The defendant raises the following five claims on appeal: (1) the trial court improperly admitted uncharged misconduct evidence; (2) he was deprived of a fair trial as a result of prosecutorial impropriety;⁵ (3) the court's jury instructions improperly diluted or shifted the state's burden to prove compulsion, thereby depriving him of a fair trial; (4) the court improperly admitted constancy of accusation evidence as substantive evidence without sua sponte issuing a limiting instruction; and (5) the enhancement of his sentence under General Statutes §§ 53a-40b⁶ and 53-202k⁷ must be reversed. We affirm the judgment of the trial court.

From the evidence presented at trial, the jury reasonably could have found the following facts. At approximately 1 a.m., on April 3, 2003, the victim,⁸ who was twenty years old at the time, was walking to a local convenience store in Willimantic to purchase a soda. As she was walking, the defendant approached her in his vehicle and asked her if she wanted to smoke marijuana. She agreed and got into the defendant's vehicle. The defendant drove to a nearby house in Mansfield, ostensibly to obtain marijuana. A few minutes after arriving at the house, the defendant told the victim that he was unable to get any marijuana. He proceeded to drive to a more secluded area and, as he was driving, asked the victim to perform oral sex on him. She refused, but the defendant insisted and repeatedly attempted to force her head into his lap as she resisted. He parked the vehicle, grabbed a gun from the backseat, pointed it at the victim's thigh and told her that he would shoot her if she did not perform oral sex on him.

At trial, the victim testified that it was dark at the time of the assault but that she thought that the gun was silver with a dark or brown handle. Upon seeing the gun, the victim began to cry and acquiesced to the defendant's demand. The defendant returned the gun to the backseat and unzipped his pants. As the victim performed oral sex on him, the defendant forced her head down with his hand and touched her breast under her shirt and her buttocks over her jeans. The victim was crying. When the assault was over, the defendant said, "[n]ow, that wasn't so bad, was it?" After the defendant took the victim to a location she requested in Willimantic, the victim ran to a nearby police station and reported the sexual assault.

The defendant subsequently was arrested and charged. Thereafter, the state filed a substitute part B information charging the defendant with committing a class A, B or C felony with a firearm in violation of § 53-202k and committing an offense while released on bond in violation of § 53a-40b. The jury returned a verdict of guilty on all counts. At trial, the defendant testified in his defense. He claimed that the sexual act between him and the victim was consensual and that he never threatened the victim with a gun. Following the jury verdict, the defendant pleaded nolo contendere to the part B information. The court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective term of twenty-one years imprisonment, followed by five years special parole, to run concurrently to any sentence then being served. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the court improperly admitted uncharged misconduct evidence. The defendant specifically refers to evidence of two subsequent incidents, occurring on April 18, 2003, in which he possessed a gun. We disagree that the court's admission of this evidence was improper.

The following additional facts that reasonably could have been found by the jury are relevant to our resolution of the defendant's claim. On April 18, 2003, between 3 and 4 a.m., the defendant approached a group of female Eastern Connecticut State University students in his vehicle as they were walking on campus and held a silver and black gun outside of the vehicle's window. That same morning, at approximately 3:30 a.m., the defendant offered a ride to Timothy Vincent, who was hitchhiking in Willimantic. The defendant drove to a nearby automatic teller machine so that Vincent could withdraw money for gasoline. Vincent gave the defendant his automatic teller machine card and personal identification number and told the defendant to withdraw $300. After completing the transaction, the defendant pulled a silver or chrome plated gun on Vincent and ordered him out of the vehicle, retaining the card and the money. The defendant subsequently was apprehended by police and identified. The police recovered a silver handgun near the scene of the robbery.

In a pretrial motion in limine, the defendant sought to preclude any evidence of the gun that he allegedly displayed during the two incidents on April 18, 2003. During the hearing on the motion, the state contended that the evidence was admissible to corroborate crucial prosecution testimony and to prove an element of two of the crimes charged. The defendant objected to the admission of this evidence, claiming that its probative value was outweighed by its prejudicial effect. The defendant specifically referred to the dissimilarity between the description of the gun used in the sexual assault and that of the gun involved in the subsequent incidents.

The court ruled that the evidence of the uncharged misconduct was relevant for the purpose of corroborating crucial prosecution testimony, namely, the victim's testimony that the defendant was armed during the April 3, 2003 offense and her description of the weapon. The court also determined that the probative value of the evidence outweighed its prejudicial effect. In issuing its ruling, the court indicated that it would minimize any prejudice to the defendant by precluding the witnesses to the April 18, 2003 incidents from testifying as to specific threats made by the defendant and by allowing only one of the three university students to testify.

Following the testimony regarding each incident of April 18, 2003, the court gave the jury a limiting instruction. The court instructed the jury that the uncharged misconduct evidence was "not being admitted to prove bad character or propensity to commit criminal acts on the part of the defendant." Rather, the court instructed, the evidence was being admitted for the purpose of corroborating the victim's testimony. The court further instructed the jury not to consider the evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity. The court gave similar instructions in its final charge to the jury.

The defendant argues that the court improperly admitted the uncharged misconduct evidence to corroborate crucial prosecution testimony because the evidence of the other crimes did not directly corroborate the victim's testimony.⁹ The defendant contends that the uncharged misconduct evidence was too attenuated because the descriptions of the gun used on April 18, 2003, differed from the victim's description of the gun, the April 18, 2003 offenses were dissimilar in nature to the alleged sexual assault and the offenses involving the students and the hitchhiker occurred fifteen days after the sexual assault. As a result, the defendant asserts that the evidence merely tended to show his criminal propensity and was unfairly prejudicial. The state counters that the court properly admitted the uncharged misconduct evidence to corroborate the victim's testimony that the defendant displayed a gun to her during the commission of the sexual assault. The state asserts that the defendant's testimony directly challenged the victim's testimony and argues that the uncharged misconduct evidence lent corroborative weight to the victim's testimony insofar as it established that, close in time to the sexual assault, the defendant had access to a gun. The state further argues that the court mitigated any possible prejudicial effect by limiting the uncharged misconduct testimony. We agree with the state.

"The principles governing the admissibility of other misconduct by a defendant are codified in § 4-5(a) and (b) of the Connecticut Code of Evidence. Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person. [Conn.Code Evid.] § 4-5(a). Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of a crime, or to corroborate crucial prosecution testimony. Id., § 4-5(b). If the evidence of other misconduct is relevant to a proper purpose, such evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice.... Id., § 4-3. Evidence of...