State v. Gary S.

345 Conn. 387

285 A.3d 29

STATE of Connecticut

v.GARY S.^*

SC 20438

Supreme Court of Connecticut.

Argued September 12, 2022

Officially Released December 6, 2022

John R. Weikart, assigned counsel, with whom was Emily Graner Sexton, assigned counsel, for the appellant (defendant).

Thadius L. Bochain, assistant state's attorney, with whom were Russell Zentner, senior assistant state's attorney, and, on the brief, Michael A. Gailor, state's attorney, for the appellee (state).

McDonald, D'Auria, Mullins, Ecker, Alexander and Keller, Js.

KELLER, J.

The defendant, Gary S., appeals¹ from the judgment of conviction, rendered after a jury trial, of two counts of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (2), one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (4), and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction on certain counts, and (2) the prosecutor made improper remarks during closing and rebuttal arguments that deprived the defendant of his constitutional right to a fair trial. Because the state concedes that the evidence presented at trial was insufficient to support the defendant's conviction on the charge of risk of injury to a child pertaining to one of the complainants, A, we reverse the trial court's judgment with respect to that count. We reject each of the defendant's remaining claims and, accordingly, affirm the judgment of conviction in all other respects.

The jury reasonably could have found the following facts on the basis of the evidence presented at trial. In 1990, the defendant and his girlfriend, D, had a daughter, S. At that time, D also had two children from a previous relationship, a daughter, T, and a son, C. For most of that decade, the defendant, D, S, and C lived together in a three bedroom home located in Middletown. Although T resided with her grandmother, she would occasionally come to visit overnight. In 1993, D started working the "third shift" as a certified nurse assistant. As a result, the defendant was normally the only adult in the home from 11 p.m. to 7 a.m.

Evidence adduced during the course of the trial suggested that, between 1994 and 1996, the defendant sexually assaulted T more than ten times. T testified at trial that, during her overnight visits at the Middletown residence, the defendant would sometimes take her to the master bedroom, engage in vaginal intercourse with her, and then direct her not to tell anyone about it. At that time, T was between the ages of eleven and thirteen years old.²

Subsequently, the defendant married D for the first time when S was approximately ten years old.³ In 2001, C fathered his own daughter, A. C moved out of the Middletown residence shortly thereafter, leaving A to be raised by D. D testified at trial that, around this same time, she was working between forty and eighty hours per week at a hospital and left the defendant home alone with S and A.

In the summer of 2002, when S was twelve years old, the defendant forced her to have vaginal intercourse with him while they were alone in the basement of the Middletown residence. As he was having intercourse with her, the defendant said that her vagina was "his pussy" and that she "better not give it up to anybody." On another occasion that summer, the defendant attempted to have vaginal intercourse with S while A, then an infant, was present, but S was able to resist, leading the defendant to respond, "fuck you, bitch."⁴

Between the summer of 2002 and the end of December, 2006, the defendant forced S to have vaginal intercourse with him more than twenty times and to perform oral sex on him more than ten times, and he performed cunnilingus on S more than ten times. The last time the defendant had vaginal intercourse with S was in December, 2006, when she was sixteen years old. Each time the defendant sexually assaulted S during this period, no other adults were present in the house. The defendant usually would assault S inside the master bedroom with the door locked. Following these incidents of sexual abuse, the defendant often would threaten to kill S and D, if S told anyone what had happened. S took these threats seriously and feared the defendant. In addition, on numerous occasions when the defendant had vaginal intercourse with S during this period, he would continue to tell her that her "pussy was his" and that she "better not be giv[ing] it to anybody ...."

In 2007 or 2008, when A was six or seven years old, the defendant entered the master bedroom, which he shared with D, where A was watching television. The defendant then proceeded to pull his penis out of his pajama pants and attempted to force A to perform oral sex on him "by putting his hand on the back of [her] head ...." At trial, A testified that she "moved it," "kept saying no," and was ultimately able to resist his efforts. The defendant then undressed A and digitally penetrated her vagina. A testified that the defendant stopped only after he heard a knock at the front door of the residence. The defendant told A that he would kill her if she told anyone about what had happened. The defendant was the only adult at home during this incident, and this was the only time that the defendant sexually assaulted A. A testified that, when she was growing up, the defendant supervised her "[a]ll the time" while D was at work and that he played the role of a father. A also testified that the defendant was residing in the home when this particular assault against her took place.

D separated from, and eventually divorced, the defendant after separate incidents of domestic abuse.⁵ D later remarried the defendant in "secret" because he needed to obtain health insurance. When asked why she remarried the defendant despite the abuse, D testified that she could not explain why. During the second marriage, the defendant was still abusive, and the pair separated once again in 2011 or 2012.⁶

For years, S and A did not report what the defendant had done to them to anyone out of fear that he would harm them.⁷ S also did not disclose the incidents to D because she thought D would not believe her. S indicated that D would always put men first before her own children. In March, 2017, S called T and revealed to her for the first time that the defendant had sexually assaulted her. T, in turn, told S that she also had been sexually assaulted by the defendant.

A few days after the conversation between S and T, T disclosed to D that the defendant had assaulted both her and S.⁸ A was present at the time and told D and T that the defendant had also assaulted her in 2007 or 2008. This was the first time that A had told anyone about what the defendant had done to her. D then called the Middletown Police Department, which commenced a criminal investigation. Detective Derek Puorro obtained statements from S, A, T, and D. S, A, and T were each interviewed separately by Puorro. No forensic evidence of the sexual assaults was obtained because of the amount of time that had passed between the assaults and disclosure.

Following his arrest, the state charged the defendant, in a third substitute information, with eight counts. Counts one through three pertain to the defendant's assault on A, while counts four through eight pertain to the defendant's assaults on S. As to the assaults on A, the state charged that, "on an uncertain date between December 31, 2007, and December 31, 2009," the defendant attempted to commit sexual assault in the first degree, namely, attempted fellatio, in violation of §§ 53a-49 (a) (2) and 53a-70 (a) (2) (count one); sexual assault in the first degree, namely, digital vaginal penetration, in violation of § 53a-70 (a) (2) (count two); and risk of injury to a child, namely, subjecting A to contact with the defendant's intimate parts, in violation of § 53-21 (a) (2) (count three).

As to S, the state charged the defendant with one count of attempt to commit sexual assault in the first degree in violation of §§ 53a-49 (a) (2) and 53a-70 (a) (2), alleging attempted vaginal intercourse on "an uncertain date in the summer of 2002" (count four); three counts of sexual assault in the second degree in violation of § 53a-71 (a) (4), alleging vaginal intercourse (count five), fellatio (count six), and cunnilingus (count seven) on "uncertain dates between March 30, 2003, and December 31, 2006"; and one count of risk of injury to a child in violation of § 53-21 (a) (2), alleging that the defendant had caused S to come in contact with his intimate parts on "uncertain dates between March 30, 2003, and December 31, 2006" (count eight).

After the state rested its case, the defendant moved for a judgment of acquittal as to all eight counts of the state's information, arguing that the evidence presented was insufficient to support a conviction. The trial court denied the motion, and the defense rested its case without presenting any evidence. The jury found the defendant guilty on all eight counts. The defendant then filed a motion for a judgment of acquittal as to counts five, six, and seven on the basis that the state had failed to establish that the defendant was S's "guardian" or "otherwise responsible for the general supervision of [S's] welfare" between the period of March 30, 2003, and December 31, 2006. (Internal quotation marks omitted.) The trial court denied the motion, concluding that "the jury could reasonably infer that, at the time of the alleged sexual assault, the defendant was [S's] guardian and/or responsible for her general supervision." The trial court sentenced the defendant to a term of thirty years of imprisonment, with five years of special parole.⁹ This direct appeal followed. Additional...