State v. Gode

145 Conn.App. 1

74 A.3d 497

STATE of Connecticut

v.Tyler Johnheath GODE.

No. 34338.

Appellate Court of Connecticut.

Argued May 21, 2013.

Decided Aug. 13, 2013.

Allison M. Near, assigned counsel, for the appellant (defendant).

Lisa Herskowitz, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Jason Germain, senior assistant state's attorney, for the appellee (state).

LAVINE, BEAR and MIHALAKOS, Js.

BEAR, J.

The defendant, Tyler Johnheath Gode, appeals from judgments of conviction, rendered after a consolidated jury trial, of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(1), unlawful restraint in the second degree in violation of General Statutes § 53a–96 (a), threatening in the second degree in violation of General Statutes § 53a–62 (a)(1), sexual assault in the fourth degree in violation of General Statutes § 53a–73 (a)(2), and disorderly conduct in violation of General Statutes § 53a–182 (a)(2). On appeal, the defendant claims that the court improperly (1) refused to instruct the jury on his theory of the case, namely, that he reasonably believed the victim consented to sexual intercourse, and (2) refused to instruct the jury on inconstancy of accusation.We affirm the judgments of the trial court.

The jury reasonably could have found the following facts, which are relevant to this appeal. The defendant and the victim attended high school together. ¹ The two dated for a brief period, and they remained acquaintances. The defendant and the victim both enrolled in the Junior Reserve Officers' Training Corps (ROTC) Program during the 2008–2009 school year. On Friday, May 1, 2009, the victim was in the ROTC back room when the defendant approached her from behind and fondled her breasts. The victim told the defendant to stop, crossed her arms across her chest to prevent him from continuing to touch her, and exited the room. A third student, T.S., also a member of ROTC, heard the victim's protests and witnessed the incident. T.S. reported the incident to the ROTC supervisor the following Monday, May 4, 2009.

Later that day, the supervisor discussed the incident separately with the victim and the defendant. The defendant admitted to the supervisor that he had grabbed the victim's breasts the preceding Friday. The supervisor reported the incident to the school's director of security, who, in turn, reported the incident to the local police department's school resource officer. T.S. subsequently was asked to meet with a police officer of the local police department.

The police officer later spent several hours interviewing the victim. Initially, they discussed the May [145 Conn.App. 4]1, 2009 incident. During that conversation, the victim revealed an earlier instance of sexual assault by the defendant, which had occurred on December 23, 2008. The police officer then interviewed the defendant about the May 1, 2009 incident, and the defendant admitted grabbing the victim's breasts on that day.

With respect to the December 23, 2008 incident, the victim testified that she had invited the defendant to her grandparents' home to help hang Christmas lights. The defendant walked to the home of the victim's grandparents, and the two hung Christmas lights until they ran out of clips. The victim and the defendant went inside, at which time she told her grandfather that they could not finish hanging the Christmas lights because they had run out of clips and needed to purchase more. The victim and the defendant went into a bedroom so that she could use the computer. The victim sat in front of the computer, and the defendant sat on the bed. Thirty minutes later, the victim finished using the computer and left the room to inquire whether her grandfather had returned with the clips. Her grandfather had not yet purchased the clips, but was about to do so. The victim went back to the bedroom and her grandparents went to purchase more clips, leaving her alone with the defendant. The defendant used the bathroom and returned to the bedroom. At this point, the victim and the defendant were sitting on the bed. The victim reached down to put on her shoe, but the defendant forcibly pulled her backward onto her bed. The victim sat up, and the defendant pushed her down a second time and laid on top of her. The victim felt the defendant's erection along her leg.

The defendant then unbuttoned and pulled down the victim's pants. The victim asked the defendant what he was doing, to which he replied, “Nothing, just don't worry about it.” She replied, “I'm going to worry about it.” She asked him a second time what he was doing; in response, the defendant pushed her pants and underwear down with his leg and foot. The defendant placed his hand over her chest to keep her pinned down on the bed. He then used his right hand to direct his penis into her vagina. The victim told the defendant to stop and said, “You don't want to do this,” but he continued to penetrate her and told her to shut up. The victim continued to resist, telling the defendant to “[g]et off me” and “[d]on't touch me.” She moved back onto the bed to get away from the defendant until she reached the end of the bed and could not move any further. The defendant told her to stop moving and said “[j]ust deal with it, you know you're going to like it.” The victim told the defendant to “leave me alone” but he continued to penetrate her approximately thirty more times. When she attempted to scream, the defendant placed his elbow on her chest and covered her mouth. The victim looked up at the defendant and told him that she would tell someone about what had transpired, to which he replied, “You're not going to tell anyone. And if you do, I'm going to kill you.”

After ejaculating, the defendant cleaned himself and put his clothes back on. Thereafter, the victim went to the bathroom to clean herself. The victim and the defendant separately returned to the living room. By this time, the victim's grandfather had returned home with the clips. The victim and the defendant went outside to finish hanging the Christmas lights. When they were done, the victim's grandfather drove the defendant home; the victim went along with them and sat in the front seat.

Following an investigation by the local police department, the defendant was charged in two separate informations that were later consolidated for trial. The first information charged the defendant for crimes relating to the May 1, 2009 incident. The second information charged the defendant for crimes relating to the December 23, 2008 incident. This appeal followed the judgments of conviction rendered after a jury trial.

Additional facts will be set forth as necessary.

I

The defendant first claims that the court “violated [his] constitutional right to have the jury instructed on his theory of defense.” ² He argues that the court improperly refused to instruct the jury in accordance with his request to charge, which set forth his theory of the case, namely, that he reasonably believed the victim engaged in conduct indicating that she consented to sexual intercourse. He also argues that it is reasonably possible that the jury was misled by the court's failure to give the proposed instruction. We are not persuaded.

We begin by setting forth our standard of review. “A challenge to the validity of jury instructions presents a question of law over which [we have] plenary review.” (Internal quotation marks omitted.) State v. Samms, 139 Conn.App. 553, 558, 56 A.3d 755 (2012), cert. denied, 308 Conn. 902, 60 A.3d 287 (2013). “When reviewing the challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.... [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Griffin, 97 Conn.App. 169, 181, 903 A.2d 253, cert. denied, 280 Conn. 925, 908 A.2d 1088 (2006).

The following additional evidence, adduced at trial, is relevant to the defendant's claim. Contrary to the victim's testimony, the defendant testified that he and the victim were dating in December, 2008. He further testified that after they retired to the bedroom on December 23, 2008, they “made out,” undressed each other and engaged in sexual intercourse. He denied ever threatening her or holding her down against her will. The defendant stated that he believed the sex was consensual because, during the intercourse, the victim was on top of him.

The defendant submitted to the court a written request to charge on sexual assault in the first degree that articulated his theory of the case, i.e., that he reasonably believed that the victim consented, by her conduct, to sexual intercourse. In addition to the model criminal jury instruction from the judicial branch web-site that the court intended to give to the jury; see Connecticut Criminal Jury Instructions (4th Ed. 2010) § 7.1–1, available at http:// www. jud. ct. gov/ JI/ criminal/ part 7/ 7. 1- 1. htm (last visited July 18, 2013) (copy contained in the file of this case in the Appellate Court clerk's office); ³ the defendant proposed adding to the instruction language first articulated by our Supreme Court in State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989) ( Smith instruction), to inform the jury on the issue of consent.⁴ The court declined to give a Smith instruction, holding that the model instruction adequately encapsulated the relevant law. After the court...