State v. Dejesus

953 A.2d 45

288 Conn. 418

STATE of Connecticut v. Carlos DeJESUS.

No. 17710.

No. 17711.

Supreme Court of Connecticut.

Argued January 11, 2008.

Decided August 19, 2008.

Darcy McGraw, special public defender, for the appellant in Docket No. SC 17710, appellee in Docket No. SC 17711 (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Vicki Melchiorre, senior assistant state's attorney, for the appellee in Docket No. SC 17710, appellant in Docket No. SC 17711 (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and SULLIVAN, Js.

ROGERS, C.J.

This case involves two separate certified appeals. First, the state appeals from the judgment of the Appellate Court reversing the conviction of the defendant, Carlos DeJesus, for kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A),¹ claiming that the Appellate Court improperly concluded that the kidnapping statute is unconstitutionally void for vagueness.² See State v. DeJesus, 91 Conn.App. 47, 83, 97-98, 880 A.2d 910 (2005). Second, the defendant appeals from the judgment of the Appellate Court affirming his conviction of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1)³ and one count of kidnapping in the first degree in violation of § 53a-92(a)(2)(A), claiming that, despite the codification of the common law of evidence in the Connecticut Code of Evidence (code), this court retains the authority to reconsider and reverse the liberal standard by which evidence of uncharged misconduct is admitted in sexual assault cases.⁴

We conclude that the state's appeal is governed by the principles recently articulated in State v. Salamon, 287 Conn. 509, 542, 949 A.2d 1092 (2008), wherein we determined that the crime of kidnapping requires an intent "to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit [an underlying] crime." Accordingly, the defendant is entitled to a new trial on the charge of kidnapping in the first degree wherein the jury properly is instructed on the element of intent. With respect to the defendant's appeal, we conclude that, despite the adoption of the code by the judges of the Superior Court, the appellate courts of this state retain the authority to develop and change the rules of evidence through case-by-case common-law adjudication. In light of our recent clarification of the common scheme or plan exception in State v. Randolph, 284 Conn. 328, 933 A.2d 1158 (2007), we further conclude that evidence of uncharged misconduct admitted under the liberal standard of admissibility ordinarily does not reflect the existence of a genuine plan in the defendant's mind. Nonetheless, because strong public policy reasons continue to exist to admit evidence of uncharged misconduct in sexual assault cases more liberally than in other cases, we will maintain the liberal standard, but do so as a limited exception to the prohibition on the admission of uncharged misconduct evidence in sexual assault cases to prove that the defendant had a propensity to engage in aberrant and compulsive criminal sexual behavior. Accordingly, we reverse in part and affirm in part the judgment of the Appellate Court.

The jury reasonably could have found the following facts, as summarized by the Appellate Court. "At all pertinent times, the defendant was employed by a supermarket chain as a customer service manager. As part of his employment duties, the defendant was responsible for hiring individuals to work at the store. In August, 2000, he hired the nineteen year old victim,⁵ and she eventually assumed the duties of a bagger. She had attended special education classes while in high school and had difficulty learning new tasks. Other witnesses, including the victim's father and a police officer, also testified that the victim had limited mental abilities. The victim's immediate supervisor was someone other than the defendant, but the defendant often managed the entire store and was aware of the victim's special needs.

"The defendant sexually assaulted the victim on two separate occasions in 2000. The first assault occurred when the defendant instructed the victim to go to the payroll room, which is located in the upper level of the store, to sit in a chair, to close her eyes and to open her mouth. The defendant then ordered the victim to `suck [on] his finger.' After she had done so, the defendant forced her to perform oral sex on him.

"The second sexual assault committed by the defendant on the victim also occurred in the upper level of the store. After telling the victim to go to a room near his office, the defendant entered and proceeded to remove the victim's pants and underwear and had her sit on a desk. The victim told the defendant that she did not want to do that, but he ignored her protests and remained silent. The defendant penetrated the victim's vagina with his penis, causing her a great deal of discomfort. She was able to move away from him, replace her clothes and leave the room. The defendant did not say anything but looked angry as she left.⁶

"The victim subsequently ended her employment at the supermarket but continued to shop at that particular location with her family. At some point in 2001, the defendant approached the victim and her father while they were shopping. In speaking with her father, the defendant indicated that the victim had been a `good worker' and that he wanted her to resume her employment at the supermarket. The victim's father, who at that time was unaware that the defendant had sexually abused his daughter, encouraged her to return to work. She agreed and was required to attend an orientation session prior to resuming her employment.

"Toward the end of June, 2001, the victim spoke with the defendant at the supermarket. He again instructed her to wait in an empty room located in the store's upper level. The defendant entered the room and kissed the victim on the mouth. He instructed her to sit on a chair and reached inside of her shirt, placing his hand on her stomach. He proceeded to remove her pants and underwear, locked his hands behind her head, straddled the chair she was sitting on and forced her to perform oral sex on him. That lasted for a few minutes, after which the defendant penetrated her vagina with his finger.

"The victim reported this incident to the police department, which commenced an investigation. The defendant, in an interview at the police station, initially denied having any sexual contact with the victim but then recanted and stated that any sexual activity between them was consensual." State v. DeJesus, supra, 91 Conn. App. at 50-52, 880 A.2d 910. Thereafter, the defendant was charged with two counts of sexual assault in the first degree in violation of § 53a-70(a)(1), and two counts of kidnapping in the first degree in violation of § 53a-92(a)(2)(A).

During the defendant's jury trial, "[t]he state sought to introduce into evidence the testimony of N, a young woman who had worked at the same store as the victim and who alleged that she also had been sexually assaulted by the defendant. The state proffered N's testimony on the issues of intent and a common scheme or plan. The defendant objected on the grounds that the testimony was not relevant and that its probative value did not outweigh its prejudicial impact.

"The court held a hearing outside of the presence of the jury during which N testified and was cross-examined by defense counsel. At the conclusion of her testimony and after listening to argument by counsel, the court ruled that it would permit N to testify before the jury. The court stated that it would give a limiting instruction at the conclusion of N's testimony and during the charge to the jury.

"N then testified before the jury. She had been hired by the defendant in February, 2000, as a cashier and bagger. N attended special education classes as a result of her learning disability and told the defendant that she was concerned about working in a crowded store. According to N, the defendant paid `a lot of attention' to her. The excessive attention made N feel uncomfortable.

"In April, 2000, the defendant was on the upper level of the store, and N asked him to get her a new name tag and shirt after her shift had concluded. The defendant signaled her to follow him into a dark room, and, after she arrived, he proceeded to kiss and to touch her. He then grabbed her by the arms, turned her around and pressed his penis into her. The defendant restrained N so that she could not move while he rubbed against her. At some point, the defendant stopped and N turned around. She observed the defendant masturbating and declined his invitation to touch his penis. She recalled that the entire episode, from the time she entered the dark room until the defendant left, took approximately ten minutes. Following N's testimony, the court gave the jury a limiting instruction." Id., at 52-53, 880 A.2d 910.

The jury found the defendant guilty of all of the offenses with which he was charged, and the trial court rendered judgment in accordance with the jury's verdict. The trial court subsequently sentenced the defendant to a total effective term of imprisonment of twenty years, execution suspended after sixteen years, and ten years of special probation. Id., at 52, 880 A.2d 910.

The defendant appealed from the judgment of the trial court to the Appellate Court, claiming, inter alia, that: (1) § 53a-92(a)(2)(A) is unconstitutionally vague as applied to the defendant's conduct, which consisted of restraining the victim during the course of a sexual assault only;⁷ id at 83, 880 A.2d 910; and (2) the trial court improperly admitted evidence of the defendant's uncharged sexual misconduct with N to establish the defendant's intent and common scheme or plan. Id., at 52-65, 880...