State v. Davis

180 Conn.App. 799

185 A.3d 654

STATE of Connecticut

v.Jarah Micah DAVIS

AC 40232

Appellate Court of Connecticut.

Argued January 16, 2018

Officially released April 10, 2018

Bryan P. Fiengo, for the appellant (defendant).

Theresa Anne Ferryman, senior assistant state's attorney, with whom was Michael Regan, state's attorney, for the appellee (state).

Alvord, Prescott and Beach, Js.

PRESCOTT, J.

The defendant, Jarah Micah Davis, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the second degree in violation of General Statutes § 53a–71 (a) (3) and one count of delivery of alcohol to a minor in violation of General Statutes § 30–86 (b) (2).¹ On appeal, the defendant claims that (1) the evidence admitted at trial was not sufficient to prove beyond a reasonable doubt that the alleged victim was physically helpless within the meaning of General Statutes § 53a–65 (6) as required for a conviction of sexual assault in the second degree, and (2) the trial court improperly denied his pretrial motion to dismiss the second count of the state's substitute information charging him with sexual assault in the second degree. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 22, 2015, the victim, M,² attended a graduation ceremony for her cousin. M was sixteen years old at the time. Her cousin's adult sister, K, and her husband, the defendant, were also in attendance. Both K and the defendant are approximately ten years older than M.

After the ceremony, K's parents hosted a graduation party for friends and family at their home. M consumed two beers at the party. At some point, K invited M to stay the night at her house. M had never been to K's house before and thought it would be fun.

With her parents' permission, M left the party with K and the defendant around 11 p.m. After arriving at the defendant's house, K gave M some comfortable clothes in which to change. K then opened a bottle of wine and she and M both drank a glass.

Soon after, K showed M the finished basement. She had converted it into a "man cave" for the defendant, who was in the military, while he was deployed. The room featured a bar stocked with various types of hard alcohol.

For a few hours, M, K, and the defendant sat at the bar in the finished basement talking and drinking. During this time, the defendant poured M multiple shots of hard liquor, as well as a small glass of Dewars and vodka. M soon became heavily intoxicated, which resulted in her stumbling, slurring her words, and having blurred vision.

At some point, K went upstairs to check on her young son, leaving M and the defendant alone. When K did not return, the defendant went upstairs and found her sleeping in their bedroom.

After seeing that K was asleep, the defendant went back downstairs, took M's hands, and began dancing with her. The two then began kissing. The defendant then pushed M against the couch, put his hands down her pants, and began digitally penetrating her vagina. M repeatedly told the defendant to stop and attempted to push him off of her. She had difficulty physically resisting him, however, given her level of intoxication.

Shortly thereafter, M found herself lying on her back on the floor of the basement.³ The defendant then lifted M's legs, took off her pants and underwear, and began penetrating her vagina with his penis. At that point, M was so intoxicated that she was unable to move or speak.

After the assault, the next thing M recalled was that she was on the couch in the defendant's basement and was vomiting on herself. The defendant took M upstairs, undressed her, and put her in the shower. After showering, M went to sleep in a spare bedroom.

The next morning, M was awakened by K, who had laundered her dirty clothes. M did not tell K about the assault because she was "still processing it and was terrified."

Later that afternoon, while M and her mother were driving home, M started crying and told her mother that the defendant assaulted her. Her mother decided to take M to the hospital, where she was evaluated for a sexual assault and evidence was collected. DNA testing of biological samples obtained from M confirmed that the defendant had sexual intercourse with her.

Soon after, M reported the assault to the police. The defendant subsequently was arrested and initially charged with sexual assault in the first degree in violation of General Statutes § 53a–70 (a) (1) and delivery of alcohol to a minor in violation of § 30–86 (b) (2). Five days before jury selection was scheduled to begin, the state filed a substitute information in which it additionally charged the defendant, in a separate count, with sexual assault in the second degree in violation of § 53a–71 (a) (3).

The defendant was subsequently tried before a jury. At trial, the defendant elected to testify and admitted that he had sexual intercourse with M but maintained that she had consented to it.

The jury acquitted the defendant of sexual assault in the first degree but convicted him of sexual assault in the second degree and delivery of alcohol to a minor. He was sentenced to nine years' incarceration, execution suspended after fifty months, followed by ten years of probation. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence admitted at trial was not sufficient to prove beyond a reasonable doubt that M was physically helpless within the meaning of § 53a–65 (6), as required to obtain a conviction of sexual assault in the second degree. Specifically, the defendant argues that M's testimony that she repeatedly had told the defendant that she did not consent to the sexual conduct negates a conclusion that she was physically helpless. We disagree.

The following additional facts and procedural history are relevant to the resolution of the defendant's claim. At trial, M testified that she voluntarily danced with and kissed the defendant. She further testified that, after a few minutes of dancing and kissing, the defendant forced his hands down her pants and began digitally penetrating her. M resisted the defendant's advances by telling him "no" several times and attempting to push him away.

After the defendant forced his hands down her pants, M testified: "I remember being between the wall and the couch. I was on my back laying down on the floor on a rug and he was standing over me and I remember him taking my pants and underwear off." M did not, however, remember how she went from standing to lying on her back. Thereafter, M testified that the defendant penetrated her vagina with his penis.

The following exchange then occurred between the prosecutor and M:

"Q. What happened after his penis entered your vagina?

"A. I was on the ground and I couldn't move."Q. Okay. When you say you couldn't move, describe what you mean.

"A. It was the weirdest feeling. I was—I could not move. I was so incapacitated. I was—I just remember staring at the ceiling and I felt him doing that to me but I—I could not fight back

"Q. Were you able to speak?

"A. No."

M further testified that she was not sure how long the assault lasted, and that the next thing she remembered was vomiting on the couch in the defendant's basement.

After the state rested, the defendant filed a motion for a judgment of acquittal as to all counts of the substitute information. The defendant argued, inter alia, that the state had failed to present sufficient evidence to prove beyond a reasonable doubt that he committed sexual assault in the second degree because M was not physically helpless during the sexual encounter. The court denied the defendant's motion and concluded that the jury reasonably could find that M was physically helpless based on her testimony that she was unable to speak or move during the penile-vaginal intercourse.

"The appellate standard of review of sufficiency of the evidence claims is well established. In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

"Our review is a fact based inquiry limited to determining whether the inferences drawn by the [fact finder] are so unreasonable as to be unjustifiable.... [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence ... established guilt beyond a reasonable doubt.... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt....

"We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the [fact finder's] opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility...." (Internal quotation marks omitted.) State v. Whitnum–Baker , 169 Conn. App. 523, 526, 150 A.3d 1174 (2016), cert. denied, 324 Conn. 923, 155 A.3d 753 (2017).

"A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... such other person is physically helpless ...." General Statutes § 53a–71 (a) (3). " ‘Physically helpless’ means that a person is (A) unconscious,⁴ or (B) for any other reason, is physically unable to resist an act of sexual intercourse or sexual contact or to communicate unwillingness to an act of sexual intercourse or sexual contact." (Footnote added.) General Statutes § 53a–65 (6).

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